Communicated on 2 May 2016
SECOND SECTION
Application no. 3021/14
Dubravko ŠEKERIJA
against Croatia
lodged on 27 December 2013
STATEMENT OF FACTS
The applicant, Mr Dubravko Šekerija, is a Croatian national who was born in 1975 and lives in Dubrovnik. He is represented before the Court by Mr M. Umićević, a lawyer practising in Zagreb.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 4 January 2011 the Dubrovnik County State Attorney’s Office indicted the applicant and two other accused, V.V. and G.K., in the Dubrovnik County Court on charges of trafficking in illegal drugs, namely cocaine.
During the trial before the first-instance court witness I.G. gave oral evidence. After the presiding judge asked the witness for his personal information, the trial judge read out I.G.’s statement given before the investigating judge.
When the defence asked a question to I.G., he said that he did not wish to answer any questions from the defence. The defence lawyer asked the presiding judge to record that in the minutes of the hearing, which the presiding judge refused to do, saying “This is my written record of the hearing and I am going to put in it what I like.”
When witness D.N. gave evidence before the trial court he was accompanied by the police officer who had participated in the pre-trial stage of the proceedings.
On 6 July 2011 the Dubrovnik County Court, with Judge Z.Č. presiding, found the applicant guilty as charged and sentenced him to eight years’ imprisonment.
In his appeal the applicant complained, inter alia, about the assessment of the evidence by the trial court, about the manner in which the evidence had been taken from witnesses I.G. and D.N., that the judgment had been based on evidence given by co-accused G.K under coercion, that all the evidence suggested by the defence had been dismissed, and that the presiding judge had been partial. In the latter respect the defence pointed to the part of the first-instance judgment which indicated that the presiding judge had the records of the police interviews with potential witnesses, which were not evidence within the meaning of the Croatian Code of Criminal Procedure and as such should have been excluded from the case file. By acquiring access to those documents the impartiality of the presiding judge was put in question.
The defence also referred to expressions used in the first-instance judgment, which in their view suggested a very negative subjective attitude of the presiding judge towards the applicant. In this connection the defence relied in particular on the following excerpts:
“ ... why would Šekerija always be somewhere around if N. did not buy drugs from him, and we know why ...
That one [the accused] was offering his services as a go-between in these transfers of property, that is to say he was always there when N. sold his flat in Zagreb or a floor of his house, and he is always some kind of a middleman ...
The accused Šekerija is worried or tormented by the motive of [I.]G.’s statement. Allegedly [I.]G. had ‘promised’ him long ago to give ‘false’ evidence, through Šekerija’s friend T.Z. (actually they are all friends) whom this presiding judge sentenced to a prison term ... So, when we are speaking about the motive, the motive of the accused Dubravko Šekerija is only money and a pleasant life without work ...
The accused Šekerija is trying hard to degrade and humiliate all that is human in the personalities of D.N. and I.G.”
On 29 February 2012 the Supreme Court allowed the applicant’s appeal in the part concerning the sentence, reduced the sentence to six years’ imprisonment, and dismissed the remainder of the appeal. The Supreme Court agreed with the defence that some evidence had been wrongly taken, but also concluded that this had no effect on the validity of the first-instance judgment. The relevant part of the Supreme Court’s judgment reads:
“ ... the use of evidence from another criminal case file ... which concerns the sale of land on the island of Hvar and threatening of the accused Dubravko Šekerija by the intermediary T.Z., is in essence wrongfully obtained evidence, but it had no effect on the judgment – within the meaning that there was a relatively grave infringement of the criminal procedure under Article 367(3) of the Code of Criminal Procedure [the “CPP”], and there is nothing to indicate that such evidence was unlawful within the meaning of Article 9 of the CCP, because the alleged infringement is not expressly mentioned in the CCP as unlawful, or as an infringement of the criminal procedure which would entail the application of Article 9 of the CPP.
... the beginning of the questioning of witness I.G. (as stated in the record of the hearing) amounts to an infringement of Article 327 of the CCP, but that infringement (because of the continuation of the hearing) was of no influence on the judgment within the meaning of infringement under Article 367(3) of the CCP.”
A subsequent constitutional complaint by the applicant was dismissed on 7 November 2013.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku – Official Gazette nos. 110/1997) are as follows:
Article 9
“(1) The courts’ decisions in criminal proceedings cannot be based on unlawfully obtained evidence (unlawful evidence).
(2) Unlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of defence, the right to dignity, reputation, honour and respect for private and family life guaranteed under the Constitution, law, and international law, and evidence obtained in breach of the rules of criminal procedure in so far as is set out in this Act, as well as any other evidence obtained unlawfully. “
Article 322
“(1) The parties and the victim may lodge requests for the taking of further evidence up to the end of the hearing ...
(4) A request for the taking of evidence may be dismissed if ...
2) if the facts of the matter at issue have already been established or are irrelevant, or if there is no link between the matter the facts of which are supposed to be established and the operative matters in the case, or if such a link cannot be established because of some legal impediment (irrelevant request).
3) if there is a suspicion that with the proposed evidence the facts of the relevant matter could either not be established at all or this could be done only with significant difficulty, or if the evidence at issue could not have been obtained in the course of the proceedings and it is probable that it cannot be obtained within a reasonable time (inapplicable request) ...”
Article 327
“If a witness or an expert witness at a previous questioning stated that he or she could no longer recall or if he or she makes a statement which is at variance with his or her previous statement, the latter will be presented to him or her, and he or she will be warned about the inconsistencies of his or her statements and asked why he or she is giving different statements, and if necessary his or her previous statement or statements will be read out.”
Article 367
“(1) A grave breach of criminal procedure exists where ...
3. a hearing has been held in the absence of a person whose presence is obligatory under the law ...”
COMPLAINT
The applicant complains under Article 6 of the Convention that the criminal proceedings against him were unfair.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, were the principles of equality of arms and adversarial trial respected as regards the manner in which the evidence was taken? In addition, was the judge presiding the trial impartial, as required by Article 6 § 1 of the Convention?
2. Was the applicant able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention?
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