FIRST SECTION
DECISION
Application no. 32114/13
Davorin PRGIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 26 June 2018 as a Committee composed of:
Kristina Pardalos, President,
Ksenija Turković,
Tim Eicke, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 24 April 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Davorin Prgić, is a Croatian national who was born in 1952 and lives in Rijeka. He was represented before the Court by Mr D. Smolić-Ročak, a lawyer practising in Rijeka.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 7 July 2011 the Rijeka Municipal Court (Općinski sud u Rijeci) found the applicant guilty on charges of arms trafficking and sentenced him to two years’ imprisonment.
5. The applicant challenged this judgment before the Rijeka County Court (Županijski sud u Rijeci) alleging numerous substantive and procedural flaws. He also asked to be summoned to the appeal hearing.
6. On 13 June 2012 the Rijeka County Court held a hearing in the applicant’s absence and upheld his conviction, reducing his sentence to one year’s and six months’ imprisonment.
7. The applicant challenged this judgment before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining, inter alia, about his absence from the session of the appellate court.
8. On 17 October 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded.
9. Meanwhile, on 25 July 2012, the applicant lodged a request with the Supreme Court (Vrhovni sud Republike Hrvatske) for extraordinary review of the final judgment (zahtjev za izvanredno preispitivanje pravomoćne presude) complaining of, inter alia, his absence from the session of the appellate court.
10. On 19 March 2013 the Supreme Court quashed the lower courts’ judgments and remitted the case to the Rijeka Municipal Court for retrial. It found, inter alia, that notwithstanding the discretion of the appellate court to decide whether or not to afford the applicant an opportunity to be present at the hearing, as a matter of fairness the applicant was entitled to be heard and to be able to defend himself in person.
11. The proceedings are currently pending before the Rijeka Municipal Court.
B. Relevant domestic law
12. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006), in force at the material time, provided:
Article 425 (1)
“A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this Act.”
Article 426
“The Supreme Court shall decide requests for the extraordinary review of the final judgment.”
Article 427
“A request for the extraordinary review of a final judgment may be lodged [due to]:
...
3. violation of the right to defence at the trial or the violation of the procedural rules in the appellate proceedings, if the violation could have influenced the judgment.”
COMPLAINT
13. The applicant complains, under Article 6 §§ 1 and 3 (c) of the Convention, about his absence from the session of the appeal panel in the criminal proceedings against him.
THE LAW
14. The applicant relied on Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an ... impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
...”
A. The parties’ arguments
15. The Government contended that the application should be struck out of the Court’s list of cases as the situation complained of by the applicant had been resolved by the decision of the Supreme Court of 19 March 2013. Since the Supreme Court had quashed the decisions of the lower courts and remitted the case for a retrial, the Government maintained that all detrimental consequences to the overall fairness of the procedure had been removed so that the applicant could no longer claim to be a victim of the violation of Article 6 of the Convention. In addition, and since the applicant’s case is currently still pending before the first instance court, the Government considered that his application was premature.
16. The applicant contended that the mere fact that the Supreme Court had quashed the decisions of the lower courts and had remitted the case for a retrial did not mean that the matters involved in his case before the Court had been resolved. Since the domestic proceedings are still pending, the same issues could arise again.
B. The Court’s assessment
17. According to the Court’s established case-law, the question of whether a trial is in conformity with the requirements of Article 6 must be considered on the basis of an examination of the proceedings as a whole (see, for example, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 251, ECHR 2016). However, the Court is not in a position to examine the overall fairness of the proceedings while they are still pending. This is because it cannot speculate on what the domestic courts will decide or on what the outcome of any appeal available to the applicant might be (see Bereza v. Poland, no. 38713/06, § 47, 1 April 2008).
18. In the present case the applicant complained that he did not have a fair trial in that the hearing before the appellate court in the criminal proceedings against him was held in his absence, contrary to Article 6 §§ 1 and 3 (c) of the Convention (see paragraph 13 above).
19. The Court notes that on 19 March 2013 the Supreme Court quashed the lower courts’ judgments and remitted the case for a retrial precisely because of the latter issue. That court held that as a matter of fairness the applicant was required to be heard at the session of the appeal panel and to be able to defend himself in person (see paragraph 10 above).
20. The Court notes that following the Supreme Court’s decision the criminal proceedings against the applicant are currently pending before the Rijeka Municipal Court. In these circumstances, the Court is unable to anticipate the impact that the situation complained of would have on the proceedings as a whole. Moreover, the Court notes that after the conclusion of the criminal proceedings in question the applicant may resubmit his complaints to the Court should he find it necessary (see Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006).
21. It thus follows that the application is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 July 2018.
Abel CamposKristina Pardalos
RegistrarPresident
Full & Egal Universal Law Academy