FIRST SECTION
DECISION
Application no. 22388/16
Davor ŠIMUNDIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 26 March 2019 as a Committee composed of:
Krzysztof Wojtyczek, President,
Ksenija Turković,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 13 April 2016,
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 Davor Šimundić, is a Croatian national who was born in 1958 and lives in Osijek. He was represented before the Court by Ms V. Drenški Lasan, a lawyer practising in Zagreb.
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 1 February 2006 the applicant was indicted in the Osijek Municipal Court (Općinski sud u Osijeku) on two charges of serious criminal offences against people’s health. Another person was indicted on one such charge. On 10 March 2006 the case was transferred to the Našice Municipal Court (Općinski sud u Našicama).
5. On 29 January 2013 the Našice Municipal Court found the applicant guilty of one count of the charges and sentenced him to two years’ imprisonment, suspended for five years.
6. On 26 April 2013 the applicant lodged an appeal against the first‑instance judgment, complaining of a number of substantive and procedural flaws in the trial.
7. On an unspecified date in 2013 the Osijek County Court (Županijski sud u Osijeku), acting as the court of appeal, forwarded the applicant’s appeal and the Našice Municipal Court’s case file to the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku) for their examination and opinion.
8. On 12 July 2013 the Osijek County State Attorney’s Office returned the case file to the Osijek County Court accompanied by a submission which read as follows:
“Within the meaning of Article 373 § 1 of the Code of Criminal Procedure, having completed the review, enclosed we are returning your case file in the criminal case against Davor Šimundić and others, accused of the criminal offence referred to in Article 249 § 2 etc. of the Criminal Code, which was delivered for our consideration upon the appeal submitted by the Našice Municipal State Attorney’s Office (the reason referred to in Article 370 § 1 of the Code of Criminal Procedure) and by both accused (all grounds for appeal referred to in Article 366 of the Code of Criminal Procedure), against the judgment of the Našice Municipal Court no. K-175/06 of 19 January 2013.”
The submission in question was not forwarded to the defence.
9. On 26 September 2013 the Osijek County Court held a session which the applicant and his lawyer attended. The Deputy Osijek County State Attorney’s Office also attended the session.
10. On the same day the Osijek County Court dismissed the applicant’s appeal, as well as the appeals submitted by his co-defendant and the Osijek Municipal State Attorney’s Office, and upheld the first-instance judgment.
11. On 30 January 2014 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) arguing, inter alia, that his right to a fair trial had been violated because the submission of the Osijek County State Attorney’s Office had not been communicated to the defence.
12. On 26 November 2015 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded. It found that, having regard to the content of the submission of the Osijek County State Attorney’s Office of 12 July 2013, as well as the fact that the applicant and his lawyer had been present at the session of the appeal panel, the fact that the submission in question had not been forwarded to the applicant had not breached his constitutional rights.
13. The decision of the Constitutional Court was served on the applicant’s representative on 18 January 2016.
B. Relevant domestic law
14. The relevant domestic law in force at the material time, concerning forwarding a reasoned submission of the State Attorney’s Office in the course of the appeal proceedings to the defence is set out in the case of Zahirović v. Croatia, (no. 58590/11, §§ 23 and 25, 25 April 2013).
COMPLAINT
15. The applicant complained that he had not had a fair trial in that the submission of the Osijek County State Attorney’s Office to the Osijek County Court had not been communicated to the defence.
THE LAW
16. The applicant relied on Article 6 § 1 of the Convention, which in the relevant part reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an ... impartial tribunal established by law. ...”
A. The parties’ arguments
17. The Government contended that the submission of the Osijek County State Attorney’s Office had been of a purely technical nature and had not contained any opinion on the parties’ appeals or any other aspect of the case. It could not have therefore influenced the Osijek County Court’s decision in any manner. That was precisely why the Constitutional Court had dismissed the applicant’s constitutional complaint in that respect.
18. The applicant maintained that there had been a violation of his right to a fair trial.
B. The Court’s assessment
19. In the cases of Zahirović (cited above, §§ 44-50) and Lonić v. Croatia (no. 8067/12, §§ 83-86, 4 December 2014), the Court found a violation of the principle of equality of arms and the right to adversarial proceedings under Article 6 § 1 of the Convention on the grounds that a submission of the competent State Attorney’s Office to the appellate court had not been forwarded to the defence. It held that, in view of the fact that the observations of the competent State Attorney’s Office constituted reasoned opinions on the merits of the case, aiming to influence the appellate court’s decision by calling for the appeal to be dismissed, it did not need to determine whether the omission to forward the relevant document had been prejudicial to the applicant; the existence of a violation was conceivable even in the absence of prejudice (see Zahirović, cited above, §§ 48 and 49, and Lonić, cited above, § 84).
20. Unlike in the case of Zahirović, in which the competent State Attorney’s submission constituted a reasoned opinion on the substantive and procedural issues raised by the parties in their appeals (see Zahirović, cited above, §§ 16 and 45), and the case of Lonić, in which it constituted a reasoned opinion that the appeal lodged by the defence be dismissed (see Lonić, cited above, § 10), in the present case the submission of the Osijek County State Attorney’s Office did not contain any opinion or proposal whatsoever as regards the applicant’s case. It simply stated that the case file, which had been forwarded to them for examination upon the parties’ appeals, was being returned to the Osijek County Court (see paragraph 8 above).
21. The submission of the Osijek County State Attorney’s Office was therefore simply a letter of a purely technical nature, devoid of any observation on the applicant’s case. Indeed, there appears to have been no material element in the letter for the applicant to comment on (see, by contrast, Zahirović, cited above, § 47).
22. Against the above background, it cannot be said that the principle of equality of arms and the right to adversarial proceedings have not been respected in the proceedings in question.
23. It follows that the complaint is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must therefore be rejected pursuant to Article 35 § 4 thereof.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 April 2019.
Renata DegenerKrzysztof Wojtyczek
Deputy RegistrarPresident
Full & Egal Universal Law Academy