Communicated on 9 November 2017
FIRST SECTION
Application no. 73553/16
Tomislav TONČIĆ
against Croatia
lodged on 1 December 2016
STATEMENT OF FACTS
The applicant, Mr Tomislav Tončić, is a Croatian national who was born in 1938 and lives in Zagreb. He is represented before the Court by Ms I. Bojić, a lawyer practising in Zagreb.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, a lawyer, represented a party before the Split Municipal Court and the Split County Court, in civil proceedings concerning a property dispute. His client won the case at the first instance, but that judgment was reversed by a three-judge panel of the appeal court.
On 16 January 2006, at the request of his client, the applicant lodged a criminal complaint against the three judges of the appeal panel, alleging that there were reasonable grounds for suspecting that they had committed the criminal offence of abuse of position and power. He specifically alleged that, despite being competent and well-qualified judges, they had intentionally adopted an unlawful judgment, had misinterpreted the provisions of the applicable substantive law, and had adopted a ruling contrary to the established practice of the Supreme Court.
The criminal complaint was dismissed by the Split County State Attorney’s Office on 2 February 2006 and, acting on the applicant’s advice, the applicant’s client did not pursue it any further.
However, on 24 September 2007 that same Office lodged an indictment against the applicant on charges of bringing a false criminal complaint.
The trial was held before the Šibenik Municipal Court and on 21 October 2011 the applicant was found guilty as charged and fined. That court held that the applicant must have known that a criminal complaint could not be lodged against judges for decisions they had adopted, that, in adopting their judgments, the judges could not commit a criminal offence, and that they had adopted their judgment on the basis of statute and the courts’ case-law. This judgment was upheld by the Šibenik County Court on 5 January 2012. A constitutional complaint subsequently lodged by the applicant was dismissed by the Constitutional Court on 25 May 2016.
COMPLAINTS
1. The applicant complains under Article 6 §§ 1 and 3(b) and (d) of the Convention that the criminal proceedings against him were not fair in that:
(1) he was not able to consult and make a copy of the case file;
(2) he could not question the witnesses for the prosecution because the presiding judge banned some of the defence’s questions to them; and
(3) the trial court refused to hear witnesses suggested by the defence.
2. Without relying on any provision, he also complains that the facts held against him did not constitute a criminal offence because when lodging a criminal complaint against the three judges he had acted on the instruction of his client and within the lawful scope of Croatian law. He had not presented any false facts in the criminal complaint and had not acted with the intention or awareness of bringing a false accusation.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charge(s) against him, in accordance with Article 6 §§ 1 and 3 of the Convention? In particular:
(a) Was the applicant afforded adequate facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention?
(b) Was the applicant able to examine witnesses against him, as well as to obtain the attendance of witnesses on his behalf, as required by Article 6 § 3 (d) of the Convention?
2. Did the act of which the applicant was convicted constitute a criminal offence under national law at the time when it was committed, as envisaged by Article 7 of the Convention?
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