FIRST SECTION
CASE OF
GREGAČEVIĆ v. CROATIA
(Application no.
58331/09)
JUDGMENT
STRASBOURG
10 July 2012
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 Gregačević v. Croatia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
AnatolyKovler, President,
NinaVajić,
PeerLorenzen,
ElisabethSteiner,
KhanlarHajiyev,
Linos-AlexandreSicilianos,
ErikMřse, judges,
andSřren Nielsen, Section Registrar,
Having deliberated in private on19 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
58331/09) 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 Croatian national, Mr Željko
Gregačević (“the applicant”), on 23 October 2009.
The applicant was represented by Mr P.
Sabolić, a lawyer practising in Osijek. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š. Stažnik.
On 10 November 2010the complaints concerning the
fairness of the criminal proceedings against the applicant and that he did not
have adequate time for the preparation of his defence were communicated to the
Government. It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1974 and lives in Čepin.
On 29 August 2006 the Osijek Municipal State
Attorney’s Office (Općinsko državno odvjetništvo u Osijeku)
indicted the applicant in the Osijek Municipal Court (Općinski sud u
Osijeku) on charges of fraud and business fraud,claiming that, acting asa
director of companies D.L.L. and M.C.,he had defrauded companies A. and R.by
using fraudulent payment instruments in exchange for goods which his companies
received from A. and R. in the period between 10 August 2005 and 13 December
2005 and on24 April 2006.
On 27 October 2006 the trial court commissioned a
reportfrom an accounting expert, D.D.
On 7 November 2006 D.D. submitted his report to
the Osijek Municipal Court. He found that M.C.’s bank account had been frozen
at the time when it had engaged in business transactions with company A. He
also found that D.L.L.’s bank account had not been frozen at the time of its
business transactions with company A., but that its account had been frozen at
the time of its business transactions with company R.
At a hearing held on 17 November 2006 D.D. gave
oral evidence. He confirmed all his findings in the report. The parties made no
objections to the report, nor did they put any questions to D.D. The
applicant’s lawyer asked that the prosecutionsubmit all documents they had
seized from the applicant so thatthey could be examined by D.D. The trial court
requested further documentsfrom the police and two commercial banks.
At a hearing held on 12 December 2006 D.D.asked
for an additional period to examine the documents submitted by the two banks.
At a hearing on 16 January 2007 the applicant’s
lawyer reiterated his request that the police be ordered to submit all business
documentation they had seized from the applicant concerning companies D.L.L.
and M.C. The trial court accepted the request.
On 12 February 2007D.D. submitted an additional
report. He reiterated his previous findings and also explained the manner and
nature of the business transactions in issue.
At a hearing held on 9 March 2007 D.D. gave
further oral evidence. The applicant’s lawyer and the applicant put no
questions to D.D. and made no objection to his report.
On 28 June 2007 the applicant’s lawyer submitted
written observations before the Osijek Municipal Court. He commented on the
reports drawn up by D.D. in setting out the defence’s arguments. His
observations were forwarded to D.D.
On 13 July 2007 D.D. submitted written
observations in which he expressly reiterated all his previous findings and
highlighted certain sentences from his reports. He also disagreed with the
conclusions drawn from his reports by the defence.
At a hearing held on 18 July 2007 the judge
conducting the proceedings presentedD.D.’s written observations of 13 July 2007
to the parties and read them out.Two largeenvelopes containing documents
submitted by the police were also presented to the parties and read out in
court.
The applicant’s lawyer asked the trial court to request
information from the Serbian authorities about the applicant’s detention in
that country or to examine witnesses Mat.G. and Mar.G., who he stated could
confirm that the applicant had been in detention in Serbia between January and
mid-February 2006 and thathe had therefore been unable to conduct business
affairs in the relevant period. He also suggested that these witnesses could
confirm that all goods that the applicant’s companies had received from
companies A. and R.had been stolen during the applicant’s absence. The
applicant’s lawyer made further observations in respect of D.D.’s written
observations of 13 July 2007 and asked that he be recalled. In respect of the
documents provided by the police, he asked that the trial be adjourned for a
period of eight to fifteen days so that they could prepare the defence and also
in order that the documentation might be forwarded to D.D. Finally, he asked
that another additional witness be heard.The Osijek Municipal Court dismissed
all of the defence’s requestson the grounds that all the relevant facts had
been sufficiently established.
On 20 July 2007 the Osijek Municipal Court found
the applicant guilty on three counts of business fraud and one count of fraud.
It also revoked the suspension of a sentence given to the applicant in previous
criminal proceedings and sentenced him to five years’ imprisonment.
In its judgment the court noted:
“The parties had no objections in respect of the evidence taken
and read out, nor did they make any further requests, and the authenticity of
the documents [in the case file] has not been brought into doubt.”
On 12 December 2007 the applicant lodged an
appeal against conviction. Hecomplained that the defence had not had sufficient
time to examine D.D.’swritten observations of 13 July 2007 and that they had
had no opportunity to examine the documentation provided by the police. He
further complained that D.D. had not been recalled and that the witnesses
Mat.G. and Mar.G. had also not been heard, although the trial court had not
provided any reasons for not hearing these witnesses. He also complainedthat
the suspension of hisprevious sentence had been revoked, although he had had no
opportunity to present arguments in that respect.
On 24 January 2008 the Osijek County Court (Županijski
sud u Osijeku) upheld the applicant’s conviction but decreased his sentence
to four years’ imprisonment. It found that the Osijek Municipal Court had
analysed witness statements and other documents in detail and had provided
sufficient reasons for the applicant’s conviction. In respect of the complaint
about D.D., the Osijek County Court’s judgment reads:
“Under Article 331 paragraph 5 of the C[ode] [of] C[riminal]
P[rocedure],in respect of crimes punishable by [up to] eight years’
imprisonment, when an expert witness has already been heard before the
president of a [trial] panel [and there has been no change in president], the
expert’s report can be read out without the agreement of the parties. It is to
be noted that the accounting expert submitted his report on 12 February 2007,
which [report] was forwarded to the parties. On 28 June 2007 the defence lawyer
submitted observations before the court asking that the expert respond to
certain questions. The expert then responded to these questions. He therefore
had not provided a new report. In his findings he had not amended anything
relevant but had only responded to the defence lawyer’s observations. ...”
The County Court also found that the suspension of the
applicant’s previous sentence had been correctly and lawfully revoked pursuant
to Article 69 paragraph 1 of the Criminal Code. It made no observations in
respect of the Osijek Municipal Court’s refusal to hear witnesses Mat.G. and
Mar.G. and also made no comment on the applicant’s complaint that hehad had no
opportunity to examine the documentation submitted by the police.
On 27 October 2008 the applicant lodged a
request for extraordinary review (zahtjev za izvanredno preispitivanje
pravomoćne presude) of the County Court’s judgmentwith the Supreme
Court (Vrhovni sud Republike Hrvatske),complaining that the defence had
not had sufficient time to examine D.D.’swritten observations and had had no
opportunity to examine the documentation provided by the police, and that the
witnesses proposed by the defence had not been heard or D.D. recalled without
the trial court providing sufficient reasons. Finally, he complained that the
suspension of hisprevious sentence had been revoked, although he had had no
opportunity to present arguments in that respect.
On 30 October 2008 the applicant lodged a
constitutional complaint with the Constitutional Court (Ustavni sud Republike
Hrvatske) against the judgments of the Osijek Municipal Court and the Osijek County Court, reiterating the arguments he had adduced before the Supreme Court.
On 22 December 2008 the Supreme Court dismissed
the applicant’s request for extraordinary review of the County Court’s judgment
on the grounds that there had been no violation of any defence rights in the
proceedings before the lower courts.
On 17 February 2009 the applicant lodged a
constitutional complaint before the Constitutional Court against the judgment
of the Supreme Court by which his request for extraordinary review of the
County Court’s judgment had been dismissed. He argued that the Supreme Court
had failed to examine all his complaints and that it had failed to remedy the
violation of defence rights that had occurred during the proceedings before the
lower courts.
On 12 March 2009 the Constitutional Court dismissed
the applicant’s constitutional complaint of 30 October 2008 against the
judgments of the Osijek Municipal Court and the Osijek County Court. The Constitutional Court found that the criminal proceedings against the applicant had been fair
and that the judgments of the lower courts had been sufficiently reasoned and
did not disclose any arbitrariness. As to the trial court’s refusal to take the
applicant’s further evidence,the Constitutional Court noted that it had been
for the trial court to decide which evidence to take and that the applicant had
not objected to the evidence that had been read out during the trial.
On 26 May 2009 the Constitutional Court declared
the applicant’s constitutional complaint of 17 February 2009 against the
judgment of the Supreme Court of 27 October 2008 inadmissible on the
grounds that it had not been an act by which the applicant’s civil rights or
obligations or any criminal charge against him had been determined.
II. RELEVANT DOMESTIC LAW
The relevant part of section 62 of the
Constitutional Court Act (Official Gazette no. 49/2002, of 3
May 2002, Ustavni zakon o Ustavnom sudu Republike Hrvatske) reads as
follows:
Section 62
“1. Anyone may lodge a constitutional complaint with the
Constitutional Court if he or she deems that the individual act of a state
body, a body of local and regional self-government, or a legal person with
public authority, concerning his or her rights and obligations, or about a
suspicion or an accusation of a criminal act, has violated his or her human
rights or fundamental freedoms or his or her right to local and regional
self-government guaranteed by the Constitution (hereinafter: a constitutional
right) ...
2. If
another legal remedy exists in respect of theviolation of the constitutional
right [complained of], a constitutional complaint may be lodged only after thatremedy
has been exhausted.”
The relevant provisions ofthe Code of Criminal
Procedure in force at the time (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) 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.
(2) A request for the extraordinary review of a final judgment
shall be lodged within a month after the final judgment has been served on the
defendant.”
Article 426
“The Supreme Court shall decide requests for the extraordinary
review of a final judgment.”
Article 427
“A request for the extraordinary review of a final judgment may
be lodged [in respect of]:
...
3. an infringement of the rights of the defence at the trial or
of the procedural rules at the appellate stage, if itmay have influenced the
judgment.”
The relevant provisions of the Criminal Code (Kazneni
zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001,
111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011)
provided:
Revocation of the Suspension of a Sentence
Article 69
“(1) The court shall revoke the suspension of a sentence and
order the execution of the pronounced punishment if the convicted person,
within the period of probation, commits one or more criminal offences for which
the court has imposed imprisonment of two years or a more serious punishment.”
Fraud
Article 224
“(1) Whoever, with the aim of obtaining unlawful pecuniary gain
for himself or a third party, by false representation or concealment of facts,
deceives another or continues the deception of another, thereby inducing him to
do or to omit to do something to the detriment of his property or the property
of another, shall be fined or punished by imprisonment for three months.”
Business Fraud
Article 293
“(1) A person responsible [for the actions] of a legal person
who, with the aim of obtainingunlawful pecuniary gain for himself or the legal
person, by using fraudulentinstruments in security for payment or by deceiving
another or continuing the deception of another in any other way, thereby
inducing him to do or to omit to do something to the detriment of his property
or the property of another, shall be punished with imprisonment from six months
to five years.
(2) If the perpetration of the offence referred to in paragraph
1 of this Article results in obtaining significant pecuniary gain or if it
causes significant damage, and the perpetrator acted with intent to obtain such
a pecuniary gain or to cause such damage, he shall be punished with
imprisonment from one to eight years.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that he had had no
opportunity to examine the additional documentation submitted by the police and
D.D.’s written observations of 13 July 2007 which had been read out at the
hearing on 18 July 2007. He also complained that he had not been afforded
sufficient time to prepare his defence in respect of D.D.’s written
observations of 13 July 2007. The applicant further complained that the
trial court had refused to recall D.D. and hear two other witnesses proposed by
the defence without providing any explanation. Finally, he complainedthat he
had not been afforded an opportunity to comment on the revocation of the
suspension of his previous sentence.
The applicant relied on Article 6 of the Convention, which
reads as follows:
“1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law....
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(b) to have adequate time and facilities for the
preparation of his defence;
...
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him;
...”
A. Admissibility
1. Alleged violation ofArticle 6 § 1 of the Convention
as regards the revocation of the suspension of the applicant’s previous
sentence
The applicant argued that the suspension of the
sentence imposed on him in previous criminal proceedings had been revoked
without the State Attorney having made a request in that respect, which had
deprived him of the opportunity to comment on and present arguments about the
revocation of the suspension of the sentence.
The Government submitted that in the applicant’s
case the revocation of the suspension of the sentence had been mandatory under
Article 69 paragraph 1 of the Criminal Code, irrespective of whether the State
Attorney had made any request to that effect or whether the applicant had
submitted any argument in that respect.
The Court notes that under domestic law, namely
Article 69 paragraph 1 of the Criminal Code, the revocation of the suspension
of a previous sentence was a mandatory measure applicable in the applicant’s
case. Moreover, the Court notes that the Deputy State Attorney in his
concluding remarks expressly asked the trial court to sentence the applicant
according to law and noted that only a sentence of imprisonment would be
appropriate in the applicant’s case. The Court also notes that the defence
responded to these arguments by maintaining their position as to the
appropriate sentence for the applicant. It is also to be noted that the
domestic courts sufficiently elaborated the sentence imposed on the applicant
and the reason for the revocation of the suspended sentence.
It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
2. Compliance with the six-month time-limit
(a) The
parties’ arguments
The Government argued that the final domestic
decision in the present case had been the Constitutional Court’s decision of 12
March 2009, by which the Constitutional Courthad dismissed the applicant’s
constitutional complaint against the judgment of the Osijek County Court. They
pointed out that this decision had been served on the applicant on
26 March 2009 and that the present application had been lodged with the
Court on 23 October 2009. As regards the decision of the Constitutional Court
of 26 May 2009 by which the applicant’s constitutional complaint against the
judgment of the Supreme Court had been declared inadmissible, they argued that
the request for extraordinary review of the County Court’s judgment could not
have been considered decisive in respect of the criminal charges against the
applicant. He had had no grounds on which to lodge a constitutional complaint
against the judgment of the Supreme Court,as he had already lodged a
constitutional complaint against the judgment of the Osijek County Court.
The applicant argued that he had had to lodge a
constitutional complaint against the judgment of the Supreme Court in order to
exhaust domestic remedies. He pointed out that the decision of the Constitutional Courthad been served on him on 22 September 2009 and that his application
with the Court hadtherefore been lodged within the six-month time-limit.
(b) The Court’s assessment
The Court reiteratesthat the requirements
contained in Article 35 § 1 concerning the exhaustion of domestic remedies
and the six-month period are closely interrelated, since not only are they
combined in the same Article, but they are also expressed in a single sentence
whose grammatical construction implies such correlation (see Hatjianastasiou
v. Greece, no. 12945/87, Commission decision of 4 April 1990, and Berdzenishvili
v. Russia (dec.), no. 31697/03, ECHR 2004‑II (extracts)).
The Court observes that the purpose of the
six-month rule is to promote legal certainty and to ensure that cases raising
issues under the Convention are dealt with within a reasonable time.
Furthermore, it ought also to protect the authorities and other persons
concerned from being under any uncertainty for a prolonged period of time.
Finally, it should ensure the possibility of ascertaining the facts of the case
before the chance to do so fades away, making a fair examination of the
question at issue next to impossible (see Kelly v. the United Kingdom,
no. 10626/83, Commission decision of 7 May 1985, Decisions and Reports
(DR) 42, p. 205, and Baybora and Others v. Cyprus (dec.), no.
77116/01, 22 October 2002).
In the present case, the Court notes that the
applicant’s conviction was upheld by the Osijek County Court on 24 January 2008.
The applicant lodged both a request for extraordinary review of the County
Court’sjudgment with the Supreme Court and a constitutional complaint.The
applicant’s request for extraordinary review of the County Court’s judgment was
dismissed on 22 December 2008. The applicant thenlodged a constitutional
complaint against the Supreme Court’s judgment on 17 February 2009but on
26 May 2009 the Constitutional Court declared it inadmissible. The applicant
also lodged a constitutional complaint against the judgment of the Osijek
County Court which the Constitutional Court declared inadmissibleon 12 March
2009.
The application to the Court was introduced on
23 October 2009, less than six months from the date of the Constitutional
Court’s decisionof 26 May 2009 by which that court declared inadmissible the
applicant’s constitutional complaint against the judgment of the Supreme Court,
but more than six months after the date of the Constitutional Court’s decision
of 12 March 2009 by which his constitutional complaint against the Osijek
County Court’s judgment was dismissed. It follows that the Court may only deal
with the application if therequest for extraordinary review of the County
Court’s judgment and theconstitutional complaint against the judgment of the
Supreme Court dismissing the applicant’s request are considered remedies within
the meaning of Article 35 § 1 of the Convention, in which case the six-month
period provided for in that Article should be calculated from the date of the
decision of the Constitutional Court regarding theconstitutional complaint
against the judgment of the Supreme Court.
As to requestsfor extraordinary review of a
final judgment as provided for in the Croatian legal system, the Court has
already held in other cases in respect of Croatia that where such a request was
made on one of the statutory grounds under Article 427 of the Code of Criminal
Procedure,the proceedings following the request for extraordinary review of the
final judgment were decisive for the determination of a criminal charge against
the applicant and so fall within the scope of Article 6 § 1 of the
Convention (see Maresti v. Croatia, no. 55759/07, § 28, 25 June 2009, andDolenec v. Croatia, no. 25282/06, § 199, 26 November 2009).
The
applicant in the present case lodged such a request on account of an alleged
infringement of his defence rights at trial, which is, under Article 427 of the
Code of Criminal Procedure, one of the statutory grounds for lodging such a
request.The Court therefore considers that in the present case this remedy
afforded the applicant an opportunity to address the alleged violation at issue
(see Dolenec, cited above, § 199).
As to the applicant’s subsequent constitutional
complaint, the Court reiterates its findings in the Dolenec case that under
section 62 of the Constitutional Court Act, anyone who deems that a decision of
a State body concerninghis or her rights and obligations, or a suspicion or an accusation
of a criminal act, has violated his or her human rights or fundamental freedoms
may lodge a constitutional complaint against that decision and that, from the
wording of section 62 of the Constitutional Court Act, the applicant had reason
to believe that his constitutional complaint against the Supreme Court’s
decision dismissing his request for extraordinary review of the County Court’s
judgmentwas a remedy to be exhausted (see Dolenec, cited above, § 200).
Therefore, the Court considers that the fact that the applicant lodged a
constitutional complaint against the judgment of the Supreme Court cannot in
any way be held against him, nor can the fact that he hadpreviously lodged a
constitutional complaint against the judgment of the Osijek County Courtin any
wayimpair his right to lodge a new constitutional complaint against the
judgment of the Supreme Court and to wait for his constitutional complaint to
be decided before bringing an application to the Court.
Against the above background, the Court finds
that the applicant made proper use of available domestic remedies and complied
with the six-month rule. The Government’s objections in that regard must
therefore be rejected.
3. Conclusion
The Court notes that this part of the
applicationis not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ arguments
The applicant submitted that he had not been
afforded adequate time and facilities for the preparation of his defence in
respect of the additional documents submitted by the policeand in respect of
D.D.’s written observations of 13 July 2007, which had both been presented to
him and his lawyer at the final hearing held on 18 July 2007. Even though he
had asked the trial court to adjourn the hearing so that he could study these
documents and prepare his response to them, this request had been denied.
The applicant further complained that his
request that the trial court call two further witnesses, Mat.G. and Mar.G.,had
been denied without any justification even though it had been well founded,
given that he had explained that these witnesses had knowledge about the
reasons for his inability to come to Croatia and about the theft of goods which
he had received from companies A. and R. His request that D.D. be recalled in
order to be examined in relation to his written observations of 13 July 2007
had also been denied without any good reason.
The Government argued that throughout the
criminal proceedings the applicant had been in an equal position to the State
Attorney: he had presented evidence, had examined witnesses, including the
expert witness, and he had never made any objection in respect of the equality
of arms. As to D.D.’s report of 13 July 2007, the Government pointed out that
it had not contained any new relevant information and that the applicant had
had an opportunity during the proceedings to comment on D.D.’s findings. As to
the additional documents submitted by the police, the Government argued that
the Osijek Municipal Court had not relied on those documents in its judgment.
Finally, the Government stressed that the State Attorney had also become aware
of the expert witness’s written observations and the documents submitted by the
police at the final hearing and that the prosecutor had therefore been in the
same position as the applicant, which excluded the possibility of any violation
of the principle of adversarial proceedings and of the equality of arms.
As to the applicant’s argument that he had not
been given sufficient time to prepare his defence, the Government maintained
that the additional evidence had been submitted before the trial court at the
final hearing and that it had had no decisive effect on the position of the
defence. The Government also pointed out that the proceedings had not been
complex and that the applicant had been afforded sufficient time to present his
case.
The Government argued that the Osijek County
Court had given adequate reasons for its decision not to recallthe expert
witness. When examining the applicant’s appeal, the Osijek County Court had
also given sufficient reasons as to why any evidence by witnesses Mat.G. and
Mar.G. would have been irrelevant.
2. The Court’s assessment
(a) Whether the applicant had adequate time and
facilities to prepare his defence in respect of the evidence submitted at the
final hearing
(i) General principles
The Court reiteratesthat the key principle
governing the application of Article 6 is fairness. The right to a fair trial
holds so prominenta place in a democratic society that there can be no
justification for interpreting the guarantees of Article 6 § 1 of the
Convention restrictively (see Moreira de Azevedo v. Portugal, 23 October
1990, § 66, Series A no. 189, and A.B. v. Slovakia,no. 41784/98, § 54, 4
March 2003).
The concept of a fair hearing implies, inter
alia, the right to adversarial proceedings, according to which the parties
must have the opportunity not only to make known any evidence needed for their
claims to succeed, but also to have knowledge of, and comment on, all evidence
adduced or observations filed, with a view to influencing the court’s decision
(see Nideröst-Huber v. Switzerland, 18 February 1997, § 24, Reports
of Judgments and Decisions 1997‑I, andMantovanelli v. France,
18 March 1997, § 33, Reports 1997‑II). In this respect, the
Court notes that it is possible that a procedural situation which does not
place a party at any disadvantage vis-ŕ-vis his or her opponent still
represents a violation of the right to adversarial proceedings if the party
concerned did not have an opportunity to have knowledge of, and comment on, all
evidence adduced or observations filed, with a view to influencing the court’s
decision (see Krčmář and Others v. the Czech Republic, no.
35376/97, §§ 38-46, 3 March 2000).
The Court further reiterates that Article 6 § 3 (b) guarantees the accused “adequate time and facilities for
the preparation of his defence” and therefore implies that the substantive
defence activity on his behalf may comprise everything which is “necessary” to
prepare the main trial. The accused must have the opportunity to organise his
defence in an appropriate way and without restriction as to the ability to put
all relevant defence arguments before the trial court and thus to influence the
outcome of the proceedings (see Mayzit
v. Russia, no. 63378/00, § 78, 20 January 2005; Connolly v. the United Kingdom (dec.),
no. 27245/95, 26 June 1996; Can v. Austria,
no. 9300/81, Commission’s report of 12 July 1984, Series A no. 96, § 53;
and Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008). When
assessing whether the accused had adequate timefor the preparation of his
defence, particular regard has to behad tothe nature of the proceedings, as
well as the complexity of the case and stage of the proceedings (seeX. v.
Belgium, no. 7628/76, Commission decision of 9 May 1977,Decisions and
Reports (DR) 9, p. 172, and Albert and Le Compte v. Belgium, 10 February
1983, § 41, Series A no. 58).
Since the requirements of Article 6 § 3 are to
be seen as particular aspects of the right to a fair trial guaranteed by
Article 6 § 1, the Court will in this case examine the complaints under Article
6 § 1 and 3 (b) taken together (see, mutatis mutandis, Van Mechelen
and Others v. the Netherlands, 23 April 1997, § 49, Reports 1997‑III).
(ii) Application of these principles to the present
case
The Court firstly observes that the present case
concernedcriminal charges against the applicant for alleged offences committed
in connection with business transactions between companies. The Court notes
that the trial court commissioned an accountingreport, examined witnesses and
obtained documentation from various commercial banks and other entities. The
Court considers that the case that might be consideredcomplex (seeRösslhuber v. Austria, no. 32869/96,
§ 30, 28 November 2000; Hoffen v. Liechtenstein, no. 5010/04, § 49,
27 July 2006; andMeidl v. Austria, no. 33951/05, § 56, 12 April 2011) required the
domestic courts to have particular regard to the rights of the defence to have
knowledge of all the evidence adduced during the trial and to have necessary
time and facilities to effectivelyput all relevant defence arguments before the
trial court and thus to influence the outcome of the proceedings.
The Court notes that the applicant’s complaints
concern two items of evidence which were presented to the defence at the final
hearing on 18 July 2007: two envelopes containing documents submitted by the
police and D.D.’s writtenobservations of 13 July 2007.
As to the two large envelopes submitted by the
police, the Court notes that at hearings held on 17 November 2006 and 16
January 2007 the defence asked the trial court to order the police to submit
all the documents they had seized from the applicant so that those documents
could be forwarded to D.D. for examination. These requests were granted and the
police were orderedto submit the documents concerned. However, the trial
court’s order was not strictly complied with and the police submitted two
envelopes containing documents directly to the trial court.
The Court notes that the defence was only
informed of the presence of those documents and presented with them at the
final hearing on 18 July 2007,at which those documents wereread out to the
defence together with other evidence. The Court also notes that the applicant’s
lawyer expressly asked for an adjournment of the hearing for a short period of
time so thathe could study the documents and prepare a response. The trial
court, however, dismissed this request without providing any reason for its
decision, noting only that the relevant facts had been sufficiently
established.
Having in mind the actions taken by the trial
court, namely the fact that it had twice ordered the police to submit the
documents in question, the Court has to conclude that the information held by
the police was of relevance for the case and capable of influencing the outcome
of the proceedings. In respect of such information, the trial court was obliged
to secure the accused an opportunity to organise his defence in an appropriate
way and to put all his relevant arguments to it without restriction (see, Moiseyev,
cited above, § 220). However, the Court is not satisfied that the reading out
of the documents at the final hearing together with other evidence was
sufficient to satisfy this requirement. In this respect, the Court recalls that
the Convention is intended to guarantee not rights that are theoretical or
illusory but rights that arepractical and effective; this is particularly so in
respect of the rights ofthe defence in view of the prominent place held in a
democraticsociety by the right to a fair trial, from which they derive (see Artico
v. Italy, 13 May 1980, § 33, Series A no. 37).
Therefore, the Court considers that by informing
the defence only briefly of the substance of the documentssubmitted by the
police at the final hearing, in a complex fraud case, and by not allowing the
defence the time to examine the documents andprepare a response, the domestic
courts cannot be said to have complied with the requirements of Article 6 §§ 1
and 3(b) of the Convention.
In view of these conclusions, the Court
considers that there is no need to examine the applicant’s complaint concerning
D.D.’s written observations of 13 July 2007.
(b) Refusal of the trial court to hear witnesses
requested by the defence
The Court reiterates that the guarantees
contained in Article 6 § 3,including those enunciated in sub-paragraph (d), are
constituent elements, amongst others, of the concept of a fair trial set forth
in Article 6 § 1(seeBönisch v. Austria, 6 May 1985, § 29, Series A no.
92).Its essential aim, as is indicated by the words “under thesame conditions”,
is full “equality of arms” in the matter.Withthis proviso, it leaves it to the
competent national authorities todecide upon the relevance of proposed evidence
insofar as iscompatible with the concept of a fair trial which dominates the
whole of Article 6 (see Engel and Others v. the Netherlands, 8 June
1976, § 91, Series A no. 22).
The Court’s task in this regard is to examine
whether the accused had an adequate and sufficient opportunity to contest the
accusations against him and whether the proceedings, considered as a whole,
satisfied the requirements of Article 6 § 1 of the Convention (Pisano v.
Italy, no. 36732/97, § 21, 27 July 2000).
(i) Witnesses Mat.G. and Mar.G.
As regards Mat.G. and Mar.G., the witnesses
proposed by the defence that were not called by the trial court,the Court
firstly notes that the applicant raised a defence that he had been detained in
Serbia and had therefore not been able to come to Croatia to fulfil his
business obligations, and that in that period the goods that were the subject
of the proceedings had been stolen from his companies’ warehouse. In this
respect, the applicant proposed thatinformation on his detention be obtained
from the Serbian authorities through international cooperation mechanisms and
that Mat.G. and Mar.G., who allegedly had knowledge of thesematters, be
examined by the trial court.
In this respect the Courtwould reiterate that
the admissibility of evidence is primarily a matter for regulation by national
law. The Court’s task under the Convention is not to give a ruling as to
whether statements of witnesses were properly admitted as evidence, but rather
to ascertain whether the proceedings as a whole, including the way in which evidence
was taken, were fair (see, among many other authorities, Van Mechelen and
Others v. the Netherlands, cited above, § 50). In particular, “as a general
rule, it is for the national courts to assess the evidence before them as well
as the relevance of the evidence which defendants seek to adduce ... Article 6
§ 3 (d) leaves it to them, again as a general rule, to assess whether it is
appropriate to call witnesses” (seeVidal v. Belgium, 22 April 1992,pp.
32-33,§ 33, Series A no. 235‑B). It is accordingly not sufficient
for a defendant to complain that he has not been allowed to question certain
witnesses; he must, in addition, support his request by explaining why it is
important for the witnesses concerned to be heard and their evidence must be
necessary for the establishment of the truth (seePerna
v. Italy [GC],no. 48898/99, § 29, ECHR 2003-V).
The Court notes that in the present case the
trial court, in respect of the charges of defrauding companies A. and R. held
against the applicant, commissioned an expert accounting report and examined
other evidence which led it to the conclusion that the relevant facts had been
sufficiently established when dismissing the applicant’s request to hear
witnessesMat.G. and Mar.G. The Court further notes that the applicant asked the
trial court to hear these witnesses to confirm his alleged detention in the period
between January and mid-February 2006.However, charges against the applicant
concerned the period between 10 August 2005 and 13 December 2005 and also 24
April 2006, in view of which the Court can accept the national court’s opinion
as to the probative value of these witnesses for the establishment of the truth
in this case. Therefore, the applicant did not substantiate that the evidence
by Mat.G. and Mar.G. would have had any decisive impact on the outcome of the
case. From that point of view it cannot, therefore, be considered that the
proceedings against the applicant were unfair on account of the way the
evidence was taken.
Against this background,
and viewing the proceedings as a whole, the Court considers
that the trial court’s refusal to hear witnesses Mat.G. and Mar.G. did not prejudice the applicant’s defence rights to a degree
incompatible with the requirements of a fair trial.
Therefore, the Court considers that there has
been no violation of Article 6 §§ 1 and 3 (d) of the Convention in this regard.
(ii) Expert witness
As regards the recall of the expert
witnesssought by the defence, the Court firstlyreiterates that the term “witnesses”
under Article 6 § 3(d) of the Convention has an autonomous meaning which also
includes expert witnesses (see Doorson v. the
Netherlands, 26 March 1996,§§ 81-82,Reports 1996-II).
In the present case, the Court notes that the
expert witness had given oral evidence before the trial court at the hearings
on 17 November 2006 and 9 March 2007. The Court also notes that on both
occasions neither the applicant nor his defence lawyer put any questions to the
expert witness. Moreover, they made no objection to his statements. The Court
further notes that the Osijek County Court, as the appeal court, elaborated in
detail why there was no need to recall the expert witness (see paragraph 18
above; and thePolyakov v. Russia, no. 77018/01, § 35, 29 January 2009).
In these circumstances the Court finds that
there has been no violation of Article 6 § 3(d) of the Convention in respect of
the trial court’s refusal to recall the expert witness in order for him to give
additional oral evidence.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Articles 13
and 17 of the Convention that he had not had an effective domestic remedy to address
his complaints.
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.”
The Court notes that theapplicant failed to
submit a claim for just satisfactionor for costs and expenses within the
time-limit set by the Court. Accordingly, the Court considers that there is no
call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the lack
of adequate time and facilities to prepare the applicant’s defence in respect
of the evidence submitted at the final hearing and the refusal of the trial
court to accede to the defence’s requests to hear witnessesMat.G. and Mar.G.
and to recall the expert witness admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of
Article 6 §§ 1 and 3(b)of the Convention in that the applicant was not given
adequate time and facilities to prepare his defence in respect of the evidence
submitted at the final hearing;
3. Holdsthat there has been no violation of
Article 6 §§ 1 and 3(d)of the Convention in that the domestic courts refused to
hear witnessesMat.G. and Mar.G.;
4. Holdsthat there has been no violation of
Article 6 §§ 1 and 3(d)of the Convention in that the domestic courts refused to
recall the expert witness;
5. Dismissestheapplicant’s claim for just
satisfaction and costs and expenses.
Done in English, and notified in writing on 10 July 2012,
pursuant to Rule77§§2 and3 of the Rules of Court.
Sřren Nielsen Anatoly
Kovler
Registrar President
