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FIRST
SECTION
CASE OF HANZEVAČKI v. CROATIA
(Application
no. 17182/07)
JUDGMENT
STRASBOURG
16
April 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of HanZevački v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 26 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17182/07) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a[n] Croatian national, Mr Davor HanZevački
(“the applicant”), on 28 March 2007.
- The
applicant was represented by Mr Z. Novaković, a lawyer
practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- On
27 June 2008 the President of the First Section decided to
communicate the complaints concerning the applicant's right to a fair
hearing and to defend himself through legal assistance of his own
choosing to the Government. It was also decided to examine the merits
of the application at the same time as its admissibility (Article 29
§ 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Daruvar.
- On
11 December 2002 the Daruvar State Attorney's Office (Općinsko
drZavno odvjetništvo u Daruvaru) filed a bill of
indictment against the applicant in the Daruvar Municipal Court
(Općinksi sud u Daruvaru) charging him with violation of
copyrights in that he had used various items of computer software
without the consent of the holders of the relevant licence. In the
proceedings the applicant was represented by legal counsel of his own
choosing. At a hearing held on 10 March 2003 the applicant gave his
evidence. At a hearing held on 28 April 2003 the Municipal Court
heard evidence from the witnesses nominated by the defence and gave a
judgment acquitting the applicant of all charges. However, this
judgment was quashed on 10 July 2003 by the Daruvar County Court,
upon an appeal lodged by the prosecution.
- In
the resumed proceedings before the Daruvar Municipal Court an expert
opinion was obtained. At the first hearing held on 6 October 2003 the
applicant again gave his evidence, in the presence of his chosen
counsel. The next hearing, scheduled for 29 December 2003, was
adjourned on a request by the applicant's counsel who explained, in a
submission filed on 24 December 2003, that he had already planned a
journey on that date. The hearing scheduled for 4 February 2004 was
adjourned on account of the illness of the presiding judge.
- According
to the applicant, before a hearing scheduled for 9 March 2004 his
counsel contacted the Municipal Court by telephone and asked for an
adjournment on account of his sudden illness.
- At
the beginning of the hearing the applicant asked that the hearing be
adjourned and informed the court that he did not wish to defend
himself in the absence of his counsel. The presiding judge, however,
decided to hold the hearing. A counsel for the prosecution was also
absent. The applicant, who had already given evidence at the previous
hearings, gave additional evidence. The applicant's request that
further witnesses be heard was dismissed. The applicant then gave his
closing arguments. The hearing was concluded and a judgment was
pronounced. The applicant was found guilty of using various items of
computer software without the consent of the holder of the relevant
licence. He was given a suspended sentence of three months'
imprisonment with a one-year probation period.
- In
an appeal lodged on 21 April 2004 the applicant complained, inter
alia, that the hearing of 9 March 2004 had been held in the
absence of his counsel although there had been a good reason for the
latter's absence. He asserted that on the morning of 9 March 2004 his
counsel had contacted the Daruvar Municipal Court by telephone. His
call had been answered by an usher and the counsel had asked to speak
to the presiding judge. However, the judge had not answered the call.
Therefore, the counsel had asked the usher, M.R., to inform the
presiding judge about his inability to attend the hearing owing to
his sudden illness. The usher had done so. The counsel's request that
the hearing be adjourned on account of his sudden illness had not
been noted in the minutes of the hearing. The applicant enclosed a
medical certificate for his counsel, of 8 March 2004, indicating that
he had been given sick leave as of that date.
- On
24 June 2004 the Bjelovar County Court (Zupanijski sud u
Bjelovaru) upheld the first-instance judgment. It found that the
presence of the applicant's counsel at the hearing held on 9 March
2004 had not been necessary. The relevant part of the appellate
judgment reads as follows:
“The ground for appeal raised by the defendant
that the first-instance court had made a grave breach of the rules of
the Code of Criminal Procedure, Article 367(3), when it held a
hearing in the absence of the defendant's counsel, this court finds
unfounded. The facts established in the minutes of the hearing held
on 9 March 2004 lead to the conclusion that, although the defendant
requested the adjournment of the hearing on account of the justified
absence of his counsel, the first-instance court assessed that the
counsel's absence was not detrimental to the defence and therefore
held a hearing and on the same day adopted a first-instance judgment.
The conduct of the first-instance court has to be viewed in the light
of a [possible] violation of the defence rights and an assessment of
its effect on the judgment adopted [by the first-instance court] has
to be made. The new facts presented by the defendant at that hearing,
on account of which he asked for an adjournment claiming that his
counsel was in possession of fresh evidence in connection with the
purchase and the price of the “Autocad” software, could
not have been of decisive importance for the crime [at issue] as
such. That is because the [first-instance] court found the defendant
guilty of the principal criminal offence under Article 230(1) of the
Criminal Code in respect of which it is not relevant whether it
resulted in significant financial gain or significant damage. Exactly
for that reason the absence of the defence counsel at the hearing
could not have been of influence for the adoption of the impugned
judgment and its legality.”
- The
applicant's subsequent constitutional complaint was dismissed on
28 September 2006 by the Constitutional Court (Ustavni sud
Republike Hrvatske) as being ill-founded.
II. RELEVANT DOMESTIC LAW
- The
relevant part 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 and 62/2003) provides as follows:
Article 5
“(1) The defendant has the right to defend himself
or herself in person or through a legal counsel of his or her own
choosing among the members of the Bar ...
...”
CLOSING ARGUMENTS
Article 343
“After the evidence has been heard the president
of the chamber shall allow the parties, the victim and defence
counsel to present their closing arguments ...”
Article 346
“(1) Defence counsel or the defendant personally
shall present in their closing arguments the [main points of] the
defence and may reply to the arguments of the [prosecution] and the
victim.
...”
- Pursuant
to Article 430 of the Code of Criminal Procedure, where the defendant
requests an amendment of a final judgment following a finding of a
violation of, inter alia, the right to a fair trial, by the
European Court of Human Rights, the rules governing a retrial shall
apply.
- Article
230(1) of the Criminal Code (Kaznenei zakon Republike Hrvatske,
Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001,
11/2003 and 105/2004) proscribes the criminal offence of unauthorised
use of an authorship, carrying a punishment of a fine or imprisonment
for a term not exceeding three years.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF
THE CONVENTION
- The
applicant complained that the hearing of 9 March 2004 had been held
in the absence of his counsel. He relied on Article 6 §§ 1
and 3(c) of the Convention, the relevant part of which reads as
follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
...
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;
...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicant argued that his right to a fair trial and in particular his
right to be represented by a legal representative of his own choosing
in the criminal proceedings against him had been violated in so far
as the trial court conducting the proceedings had denied his request
that the concluding hearing be adjourned on account of the sudden
illness of his counsel. He explained that his counsel had fallen ill
a day before the hearing and that he had duly informed the trial
court about it on the morning of the hearing by telephone. He argued
that according to the relevant provisions of the Croatian Code of
Criminal Procedure the trial court was under duty to adjourn a
hearing when the defence counsel informed that court about his
inability to attend for a good reason. The applicant further
emphasised the importance of the concluding hearing in the criminal
proceedings as it was the only opportunity for the defence to orally
present their view of the results of the proceedings before a trial
court and to present their own conclusions and arguments as regards
the evidence of the case. He also stressed that the case had
concerned complex issues of law, in particular whether his acts could
be seen as illegal, and that such arguments could only have been
adequately presented by a qualified lawyer.
- The
Government maintained that there was no duty on the part of the trial
court to adjourn the hearing in question since all the evidence had
already been presented before the concluding hearing and that there
had been no special circumstances which would require the presence of
the applicant's counsel at the concluding hearing. They stressed that
the applicant's counsel had fallen ill a day before the hearing and
could have informed the trial court about it that very day by means
of a telefax. Therefore, the applicant had been deprived of legal
representation for reasons entirely imputable to his defence counsel.
- The
Court firstly observes that its task is not to give an answer to the
parties' disputing arguments on whether the Daruvar Municipal Court
was, according to the relevant provisions of the Croatian Code of
Criminal Procedure, obliged or not to adjourn the concluding hearing
in the criminal proceedings against the applicant on account of the
justified absence of his defence counsel. The Court's task is rather
to make an assessment whether, from the Convention point of view, the
applicant's defence rights were respected to a degree which satisfies
the guarantees of a fair trial under Article 6 of the Convention. In
this connection the Court reiterates at the outset that the
requirements of paragraph 3 of Article 6 are to be seen as particular
aspects of the right to a fair trial guaranteed by paragraph 1 (see,
among other authorities, Balliu v. Albania, no. 74727/01,
§ 25, 16 June 2005). On the whole, the Court is called upon
to examine whether the criminal proceedings against the applicant, in
their entirety, were fair (see, among other authorities, Imbrioscia
v. Switzerland, 24 November 1993, Series A no. 275,
§ 38; S.N. v. Sweden, no. 34209/96, § 43,
ECHR 2002-V; and Vanyan v. Russia, no. 53203/99, § 63-68,
15 December 2005).
- The Court reiterates that, although not absolute, the
right of everyone charged with a criminal offence to be effectively
defended by a lawyer is one of the fundamental features of a fair
trial (see Krombach v. France, no. 29731/96, § 89, ECHR
2001-II). A person charged with a criminal offence who does not wish
to defend himself in person must be able to have recourse to legal
assistance
of his
own
choosing (see
Campbell and Fell v. the United Kingdom, 28 June
1984, Series A no. 80, § 99; d Pakelli v. Germany,
25 April 1983, Series A no. 64, § 31; and Whitfield and
Others v. the United Kingdom, nos. 46387/99, 48906/99, 57410/00
and 57419/00, § 48, 12 April 2005).
- The
Court notes that the applicant in the present case was constantly
represented by a lawyer of his own choosing in the criminal
proceedings against him, save for the final hearing held before the
trial court. Before that hearing the applicant had given his evidence
as had all witnesses nominated by the defence. The Court notes
further that at the final hearing before the trial court the
applicant asked for an adjournment on account of the absence of his
defence counsel who had suddenly fallen ill. However, this request
was denied. The applicant then gave his further evidence and
presented his closing arguments.
- The
Court is aware of the requirement of efficiency of the conduct of the
criminal proceedings. However, that requirement cannot run contrary
to the protection of the defence rights to a degree incompatible with
the guarantees of a fair trial under Article 6 of the Convention. In
this connection the Court notes that it is true that the applicant's
counsel asked for the adjournment of the hearing scheduled for 29
December 2003 on account of a previously planned journey. However, in
view of the date of that hearing falling so close to a public holiday
and the fact that the counsel had informed the trial court of his
inability to attend in advance, the Court considers that these
circumstances do not indicate that the applicant or his counsel acted
in bad faith or tried to unnecessarily delay the proceedings.
- As
to the circumstances surrounding the request for the adjournment of
the final hearing, the Court notes that in his appeal the applicant's
counsel explained in detail that he had suddenly fallen ill a day
before the hearing and on the morning of the hearing contacted the
trial court by telephone. He gave the name of the usher who had
received the call and who had gone to inform the trial judge about
his inability to attend. He also enclosed a medical certificate
showing that he had been on sick leave as of 8 March 2004. The
appellate court made no comments on these circumstances and instead
concluded that the counsel's presence was not necessary in view of
the evidence hitherto already presented before the trial court and
the features of the crime held against the applicant.
- The
Court cannot endorse the views of the appellate court for the
following reasons. The Court notes that one of the most important
aspects of a concluding hearing in criminal trials is an opportunity
for the defence, as well as for the prosecution, to present their
closing arguments, and it is the only opportunity for both parties to
orally present their view of the entire case and all the evidence
presented at trial and give their assessment of the result of the
trial. The Court considers that the choice made by the prosecution
not to attend the concluding hearing in the case against the
applicant cannot have any effect on the right of the accused to be
represented by a lawyer of his own choosing.
- In
the Court's view the absence of the applicant's counsel gave good
cause for the hearing of 9 March 2004 to be adjourned, in view of the
significance of the concluding hearing in the criminal proceedings
against the applicant (see paragraph 25 above).
- This
defect was not remedied either in the County Court or the
Constitutional Court, since these courts did not hold hearings.
- Having
regard to the purpose of the Convention, which is to protect rights
that are practical and effective, and to the prominent place the
right to a fair administration of justice holds in a democratic
society within the meaning of the Convention, the Court considers
that any restrictive interpretation of Article 6 would not correspond
to the aim and the purpose of that provision (see, mutatis
mutandis, Delcourt v. Belgium, 17 January 1970, Series A
no. 11, § 25, and Ryakib Biryukov v. Russia, no.
14810/02, § 37, ECHR 2008 ...).
- In
these circumstances, the Court finds that the applicant was not able
to defend himself through legal assistance of his own choosing to the
extent required under the Convention. There has accordingly been a
violation of Article 6 § 1 taken together with Article 6 §
3(c) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 § 1 of the Convention
about the assessment of evidence and the outcome of the criminal
proceedings against him and under Article 7 of the Convention that
the acts he had committed did not amount to a criminal offence.
Lastly, he invoked Article 17 of the Convention.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. It follows that it is inadmissible
under Article 35 §
3
as manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 100,000 Croatian Kuna (HRK) in respect of
non-pecuniary damage.
- The
Government deemed the sum claimed excessive.
- The
Court considers that the finding of a violation together with the
possibility open to the applicant under national law to seek a fresh
trial (under Article 430 of the Croatian Code of Criminal Procedure)
constitutes in itself sufficient just satisfaction in the
circumstances of the present case.
B. Costs and expenses
- The
applicant also claimed HRK 39,550 for costs and expenses incurred
before the Court and before the domestic courts.
- The
Government left it to the Court to assess the necessity of the costs
incurred.
- Under
the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the applicant the sum of EUR 5,400 in respect of
costs and expenses plus any tax that may be chargeable to the
applicant on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint concerning
the applicant's right to a fair hearing and to defend himself through
legal assistance of his own choosing admissible and the remainder of
the application inadmissible;
- Holds by six votes to one that there has been a
violation of Article 6 § 1 taken together with Article 6 §
3 (c) of the Convention;
- Holds by six votes to one
(a) that
the finding of a violation together with the possibility under
national law to seek a fresh trial constitute sufficient just
satisfaction;
(b) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,400 (five
thousand four hundred euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 16 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Jebens is annexed to this judgment.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGE JEBENS
I
respectfully disagree with the majority that there has been a
violation of Article 6 in this case. For the reasons set out below, I
am of the opinion that the applicant was afforded a fair trial at the
Municipal Court.
I
note firstly that the applicant's defence counsel was present at the
previous hearings, including the hearing on 6 October 2003, when the
applicant gave evidence. He also assisted the applicant at the
examination of all witnesses which were heard at the previous
hearings. Furthermore, he had ample opportunity to present his views
on the facts of the case and all pertaining legal issues in written
submissions before the final hearing. During the final hearing no
further witnesses were heard. However, the applicant himself was
heard once more at that hearing and he also gave the closing
arguments.
It is
also in my opinion relevant for the assessment of the complaint that
the applicant was represented throughout the proceedings before the
appellate Court and the Constitutional Court. The applicant's counsel
thus had a further opportunity to present his views on the case both
in an appeal against the first instance judgment and in a
constitutional complaint.
More
important is, however, in my opinion the fact that the appellate
Court carefully examined whether the absence of the defence counsel
could possibly have affected the outcome of the case. It answered
that question in the negative, and explained it in a concrete and
convincing manner, see the quotation in para 10. I see no reason to
doubt the validity of the conclusion reached by the appellate Court,
bearing in mind also the principle of subsidiarity, with regard to
assessment of questions of fact.
Summing
up, a scrutiny of the proceedings as a whole leads me to conclude
that the applicant was not denied a fair trial (see, mutatis
mutandis, Imbrioscia v. Switzerland, 24 November 1993, § 44,
Series A no. 275). In the circumstance of the present case I find
that the applicant was able to defend himself through legal
assistance to the extent required under the Convention. There has
therefore in my opinion not been a violation of Article 6 § 1
taken together with Article 6 § 3 c of the Convention.
