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PREZEC v. CROATIA - 48185/07 [2009] ECHR 1568 (15 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1568.html
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[2009] ECHR 1568
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FIRST
SECTION
CASE OF PREZEC v. CROATIA
(Application
no. 48185/07)
JUDGMENT
STRASBOURG
15 October 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 PreZec v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 24 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 48185/07) 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 Croatian national, Mr Zlatko PreZec (“the
applicant”), on 11 July 2007.
The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
On
25 November 2008 the President of the First Section decided to
communicate the complaint concerning the applicant's right to free
legal assistance under Article 6 §§ 1 and 3(c) of the
Convention 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 1972.
Following
a criminal conviction for murder, the applicant was sent to Lepoglava
State Prison on 15 December 1997 to serve a twelve-year prison
sentence. Since that date he has served his sentence in various
prisons in Croatia.
On
3 December 2003, while the applicant was serving his prison term in
Pula Prison, the Pula Municipal State Attorney's Office indicted him
on a charge of threatening a prison employee on 21 May 2003. Criminal
proceedings were instituted against the applicant before the Pula
Municipal Court (Općinski sud u Puli). A hearing
scheduled for 18 December 2003 was adjourned because the applicant
had not been duly summoned. A further hearing scheduled for 2 March
2004 was also adjourned because at that time the applicant was
undergoing treatment in Zagreb Prison Hospital. At a hearing held on
25 May 2004 the applicant stated that he had neither understood the
content of the indictment against him nor the warning given to him by
the presiding judge. The court then ordered a psychiatric examination
of the applicant and adjourned the hearing.
On
28 June 2004 the applicant lodged a written request for a legal aid
counsel. The request was received at the Pula Municipal Court on 30
June 2004 and enclosed in the case file on 15 July 2004. No written
decision was made in respect of his request at that stage of the
proceedings.
The
applicant was examined by a psychiatrist in Vrapče Psychiatric
Hospital (Psihijatrijska bolnica Vrapče) from 23 to 29
June 2004. The report, drawn up on 6 July 2004, shows that the
applicant was treated in the Psychiatric Ward of the Zagreb Prison
Hospital during the following periods:
- 12
to 17 February 1999 for depression;
- 26
February to 15 March 1999 for a suicide attempt;
- 1
to 6 April 1999 for allegedly falling out of bed and hurting his
head;
- 3
December 1999 to 10 January 2000 for depression and anxiety;
- 17
February to 6 March 2000 for self-injury;
- 21
December 2000 to 31 January 2001 for a suicide threat;
- 12
to 24 April 2001 for personality disorder;
- 6
to 25 November 2002 for personality and behavioural disorder;
- 17
December until 2 January 2003 for a suicide attempt;
- 3
to 22 April 2003;
- 28
July to 20 August 2003 for a suicide attempt;
- 21
to 22 August 2003 for refusal to drink water;
- 22
August to 22 September 2003 for a suicide attempt;
- 24
September to 27 November 2003 for a suicide attempt;
- 20
February to 18 March 2004 for a suicide attempt;
- 8
to 14 April 2004 for swallowing batteries;
The
conclusions of the report read as follows:
“1. Zlatko PreZec is a person suffering from
serious and permanent personality disorder with a prevalence of
paranoia [paranoid personality disorder], schizophrenic disorder and
a pronounced narcissistic pathology, as well as a strong tendency
towards destructive and self-destructive behaviour.
2. The patient's mental
disorders do not fall into the category of a temporary or permanent
mental illness, insufficient mental development or a mental illness
with physical causes.
3. During psychiatric examination no elements
indicating alcohol dependency or dependency on any psychoactive
substance were found.
4. Bearing in mind the gravity and nature of the
patient's personality disorders and their close link with the
offences with which he has been charged, we consider that his ability
to understand and control his own actions was diminished when the
offences in question were committed.
5. Bearing in mind the serious and genuine risk
[that the patient] might commit further criminal offences, we
recommend that he undergo compulsory psychiatric treatment.
6. The patient maintains the capacity to
participate in the proceedings against him for the time being.”
On 12
July 2004 the report was submitted to the Pula Municipal Court.
At
a hearing held on 13 July 2004 the applicant stated that he was going
to defend himself in person although he was of the opinion that his
constitutional rights were thus violated. At the same time he also
stated that he did not understand anything. The relevant part of the
written transcript of the hearing reads:
“The defendant is informed, under Article 5 of the
Code of Criminal Procedure, that he has the right to defend himself
in person or with assistance of a defence counsel.
The defendant states: 'I do not understand anything.'
The judge again informs the defendant of his rights
under Article 5 of the Code of Criminal Procedure.
The defendant states:
'I will defend myself in person although I think that my
constitutional rights have thus been violated.'
The defendant then states that he has not understood
anything.”
During
the trial the applicant remained silent. On 13 July 2004 the Pula
Municipal Court (Općinski sud u Puli) found the applicant
guilty as charged and sentenced him to five months' imprisonment. In
addition, it ordered the applicant to undergo compulsory psychiatric
treatment because he had been diagnosed as suffering from a mental
disorder. With regard to the applicant's mental state, the judgment
stated:
“... the defendant ... is a person suffering from
serious and permanent [chronic] personality disorders with a
prevalence of paranoia [paranoid personality disorder], schizophrenic
disorder and a pronounced narcissistic pathology, as well as a strong
tendency towards destructive and self-destructive behaviour.”
On
24 August 2004 the applicant lodged an appeal against the
first-instance judgment alleging, inter alia, that his defence
rights had been violated in that his request to have a defence
counsel appointed in the proceedings before the first-instance court
had been ignored. The case file was sent to the Pula County Court
(Zupanijski sud u Puli) sitting as an appeal court. On 3
August 2005 the appeal court returned the case file to the Pula
Municipal Court because it had failed to decide upon the applicant's
further, written request of 28 June 2004 to have a defence counsel
appointed to him.
On
6 September 2005 the Pula Municipal Court heard the applicant in
connection with his request for a legal aid lawyer. In a decision of
22 September 2005 the Pula Municipal Court appointed a lawyer
practising in Pula as the applicant's defence counsel. In the
operative part of the decision a lawyer T.S. was appointed, while in
the reasoning another lawyer, T.B., is named as the officially
appointed defence counsel. The relevant part of this decision reads
as follows:
“This court has ... established that the
defendant's financial situation ... does not allow him to engage the
services of a defence counsel and that reasons of fairness require
that a defence counsel be officially assigned to him.”
On
30 September 2005 the appointed counsel, T.S., also lodged an appeal
against the first-instance judgment.
On
20 April 2006 the Pula County Court dismissed both appeals. As
regards the lack of legal representation for the applicant during the
trial before the first-instance court, it held:
“The defendant ... maintains that the
first-instance court took no heed of the fact that he suffers from
mental illness and that therefore a defence counsel should have been
assigned to him ...
This appeal court finds, however, that no procedural
error was made which could have affected the defendant's defence
rights. The record of the hearing held on 25 May 2004 shows that
the defendant stated that he did not feel capable of defending
himself, after which the first-instance court adjourned the hearing
and ordered a psychiatric examination of the defendant ... The report
showed that the nature and intensity of the defendant's mental
illness did not put in question his ability to defend himself. The
[first-instance court] held a hearing on 13 July 2004 at which the
defendant, although expressly advised in accordance with Article 5 of
the Code of Criminal Procedure that he could defend himself in person
or with the assistance of a defence counsel, stated 'that he is going
to defend himself in person although his constitutional rights are
thus infringed'. It follows that the defendant, who had been found
capable of defending himself in person, that is to say that he
understood his role in the trial and the information about his
rights, expressly stated that he was going to defend himself in
person.”
In
his subsequent constitutional complaint of 26 June 2006 the applicant
complained that he had no means to pay for legal assistance since he
had been serving a prison term since 1997. Furthermore, owing to his
mental state, the interests of justice required that he be granted
such assistance. He alleged that he had asked the presiding judge on
several occasions, both orally and in writing, to be granted legal
assistance. However, she had completely ignored his requests until
the appeal court remitted the case file to her in order to decide on
his request for legal assistance. A decision of the President of the
Pula Municipal Court of 22 September 2005 appointing two defence
counsel had been served on the applicant in prison but it did not
contain the address or telephone number of either of the appointed
counsel. Neither of them had contacted the applicant.
On
13 November 2008 the Constitutional Court dismissed the applicant's
complaint.
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) A defendant has the right to defend
himself in person or with the assistance of a defence counsel of his
own choosing from among the members of the Bar. Where prescribed by
this Code, and in order to ensure [that the rights of] defence [are
respected], a defence counsel shall be assigned to a defendant who
has not appointed a defence counsel of his own choice.
(2) Under the conditions prescribed by this Code, a
legal aid lawyer shall be appointed, on the request of the defendant,
to a defendant who has no means to pay for legal assistance.
(3) A court or other State body participating in
the criminal proceedings shall inform the defendant of his right to a
defence counsel when he or she is first questioned.
(4) The defendant shall be afforded adequate time
and facilities for the preparation of his or her defence.”
Pursuant
to Article 430 of the Code of Criminal Procedure, where the defendant
requests an amendment of a final judgment following a finding by the
European Court of Human Rights of a violation of, inter alia,
the right to a fair trial, the rules governing a retrial shall apply.
The relevant part of the 1999 Constitutional Act on
the Constitutional Court of the Republic of Croatia (Ustavni zakon
o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999
of 29 September 1999 – “the Constitutional Court Act”),
as amended by the 2002 Amendments (Ustavni zakon o izmjenama i
dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske,
Official Gazette no. 29/2002 of 22 March 2002), which entered
into force on 15 March 2002, reads as follows:
Section 62
“1. Everyone may lodge a constitutional
complaint with the Constitutional Court if he or she deems that the
decision of a state authority, local or regional self-government, or
a legal person invested with public authority, on his or her rights
or obligations, or about suspicion or accusation of his or her having
committed a criminal offence, has violated his or her human rights or
fundamental freedoms, or right to local or regional self-government,
guaranteed by the Constitution (hereinafter: constitutional
rights)...
2. If another legal remedy is allowed against the
violation of the constitutional rights [complained of], the
constitutional complaint may be lodged only after this remedy has
been exhausted.
3. In matters in which an administrative action or,
in civil and non-contentious proceedings, an appeal on points of law
[revizija] are allowed, remedies shall be considered exhausted
only after the decision on these legal remedies has been given.”
Section 63
“(1) The Constitutional Court shall examine a
constitutional complaint whether or not all legal remedies have been
exhausted if the competent court fails to decide a claim concerning
the individual's rights and obligations or a criminal charge against
him or her within a reasonable time ...
(2) If a constitutional complaint ... under
paragraph 1 of this section is upheld, the Constitutional Court shall
set a time-limit within which the competent court must decide the
case on the merits...
(3) In a decision issued under paragraph 2 of this
section, the Constitutional Court shall assess appropriate
compensation for the applicant for the violation of his or her
constitutional rights ... The compensation shall be paid out of the
State budget within three months from the date a request for payment
is lodged.”
The
relevant part of the Courts Act (Zakon o sudovima, Official
Gazette nos. 150/05 and 16/07), which entered into force on 29
December 2005, reads as follows:
III. PROTECTION OF THE RIGHT TO A HEARING WITHIN A
REASONABLE TIME
Section 27
“(1) A party to court proceedings who
considers that the competent court failed to decide within a
reasonable time on his or her rights or obligations or a criminal
charge against him or her, may lodge a request for the protection of
the right to a hearing within a reasonable time with the immediately
higher court.
(2) If the
request concerns proceedings pending before the High Commercial Court
of the Republic of Croatia,
the High Petty Offences Court of the Republic of Croatia
or the Administrative Court of the Republic of Croatia,
the request shall be decided by the Supreme Court of the Republic of
Croatia.
(3) The proceedings for deciding the request
referred to in paragraph 1 of this section shall be urgent.”
Section 28
“(1) If the court referred to in section 27
of this Act finds the request well founded, it shall set a time-limit
within which the court before which the proceedings are pending must
decide on a right or obligation of, or a criminal charge against, the
person who lodged the request, and shall award him or her appropriate
compensation for the violation of his or her right to a hearing
within a reasonable time.
(2) The compensation shall be paid out of the State
budget within three months from the date the party's request for
payment is lodged.
(3) An appeal, to be lodged within fifteen days
with the Supreme Court, lies against a decision on the request for
the protection of the right to a hearing within a reasonable time. No
appeal lies against the Supreme Court's decision but one may lodge a
constitutional complaint.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3(c)
OF THE CONVENTION
The
applicant complained that he had not been granted free legal
assistance at the trial stage in the criminal proceedings against him
and that the counsel assigned to him at the appeal stage had not
contacted him. He relied on Article 6 §§ 1 and 3(c) of the
Convention, the relevant part of which reads:
“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 complaint 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 parties' submissions
The
applicant argued that, owing to his mental state, he should have been
legally represented throughout the criminal proceedings against him.
Since he had had no means to pay for legal representation, the
interests of justice required that a legal aid lawyer be assigned to
him right at the beginning of his trial. Although he had made such a
request orally before the presiding judge of the trial court, it had
not been recorded in the transcript. His further written request had
not been answered. It had not been until he had already lodged an
appeal against the first-instance judgment that the appeal court had
remitted the case to the first-instance court and a legal aid counsel
had been assigned to him – at a very late stage in the
proceedings. However, the officially assigned counsel had never
attempted to contact the applicant and had not provided him with an
address or telephone number at which to contact him.
The
Government argued that the relevant provisions of the Code of
Criminal Procedure did not require the applicant to be defended by a
lawyer in the criminal proceedings at issue. They maintained,
further, that at the hearing held on 13 July 2004 before the Pula
Municipal Court the applicant had been informed of his right to be
legally represented but had chosen to represent himself in person.
The report of the applicant's psychiatric examination showed that the
applicant maintained the capacity to participate in the proceedings
against him. Finally, his request for a legal aid lawyer had been
complied with at the appeal stage.
The Court's assessment
Bearing
in mind that the requirements of paragraph 3 (b) and (c) of Article 6
of the Convention amount to specific elements of the right to a fair
trial guaranteed under paragraph 1, the Court will examine all the
complaints under both provisions taken together (see, in particular,
Van Geyseghem v. Belgium [GC], no. 26103/95, § 27,
ECHR 1999-I, and G.B. v. France, no. 44069/98, § 57,
ECHR 2001 X).
As
to the Government's contention that the applicant had decided to
defend himself in person and not to engage the services of a lawyer,
the Court reiterates that neither the letter nor the spirit of
Article 6 of the Convention prevents a person from waiving of his own
free will, either expressly or tacitly, entitlement to the guarantees
of a fair trial. However, such a waiver must, if it is to be
effective for Convention purposes, be established in an unequivocal
manner; it must not run counter to any important public interest (see
Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR
2006-...), and it must be attended by minimum safeguards commensurate
with its importance (see Poitrimol v. France, 23 November
1993, § 31, Series A no. 277-A).
As
to the present case, the Court notes that the applicant argued that
he had orally requested the presiding judge to assign him a legal aid
lawyer during the first-instance proceedings but that his request had
not been properly recorded. It is undisputed between the parties that
on 28 June 2004, during the proceedings before the trial court, the
applicant submitted his written request for a legal aid lawyer.
However, this request, despite having been received at the Pula
Municipal Court on 30 June 2004, was not enclosed in the case file
until 15 July 2004, while the final hearing was held on 13 July 2004.
At that hearing the applicant expressly stated that he would defend
himself in person although in his opinion his constitutional rights
were thus violated. He stated several times that he did not
understand anything. In view of the applicant's mental state (see
paragraph 8 above) and his express request to have a legal aid lawyer
appointed during the trial proceedings, the Court concludes that it
cannot be accepted that the applicant waived his right to be
represented by a lawyer during the trial proceedings.
The
Court reiterates that although not absolute, the right of everyone
charged with a criminal offence to be effectively defended by a
lawyer, assigned officially if need be, is one of the fundamental
features of a fair trial (see Poitrimol, cited above, §
34, and Demebukov v. Bulgaria, no. 68020/01, § 50,
28 February 2008). Article 6 § 3 (c) does not specify the
manner of exercising this right. It thus leaves to the Contracting
States the choice of the means of ensuring that it is secured in
their judicial systems, the Court's task being only to ascertain
whether the method they have chosen is consistent with the
requirements of a fair trial (see Imbrioscia v. Switzerland,
24 November 1993, § 38, Series A no. 275, and Salduz
v. Turkey [GC], no. 36391/02, § 51, 27 November 2008).
Sub-paragraph (c) of Article 6 § 3 attaches two
conditions to this right. The first condition – lack of
sufficient means to pay for legal assistance – is not in
dispute in the present case, as it was accepted by the national
courts when they assigned a legal aid counsel to the applicant in the
appeal proceedings. What must be determined is whether the interests
of justice required that the applicant be granted such assistance. In
this connection the Court notes firstly that the Pula Municipal Court
ordered the applicant to undergo compulsory psychiatric treatment
because he had been diagnosed as suffering from a severe mental
illness. Secondly, the Court notes that in the criminal proceedings
in question the applicant was charged with an offence committed
against an employee at Pula Prison, where he was serving a prison
term at the time. In the Court's view, the applicant's mental state
and the fact that as a convicted prisoner he was charged with an
offence against a prison employee warranted his legal representation
in the proceedings at issue. Furthermore, the Court's case-law is
clear on the principle that where deprivation of liberty is at stake,
the interests of justice in principle call for legal representation
(see Quaranta v. Switzerland, 24 May 1991, § 34;
Benham v. the United Kingdom, 10 June 1996, § 61,
Reports of Judgments and Decisions 1996 III; and Talat
Tunç v. Turkey, no. 32432/96, § 56,
27 March 2007). The Court is also mindful of the fact that in a
decision of 22 September 2005 the Pula Municipal Court stated that
considerations of fairness required the assignment of a legal-aid
lawyer to the applicant. However, the defence counsel assigned could
have acted for the applicant only in the appeal proceedings since at
that point the trial stage had already been completed. In the Court's
view, however, the “considerations of fairness”, as
expressed by the national courts, made legal representation of the
applicant an even more stringent requirement at the trial stage,
given the paramount importance of the nature of criminal proceedings
before a trial court, where all the evidence is usually presented and
the defendant has probably his or her only chance to be heard in
person by a court.
As
regards the applicant's representation in the appeal proceedings, the
Court reiterates that a State cannot be held responsible for every
shortcoming on the part of a lawyer appointed for legal aid purposes
or chosen by the accused. It follows from the independence of the
legal profession from the State that the conduct of the defence is
essentially a matter between the defendant and his counsel, whether
counsel be appointed under a legal aid scheme or privately financed
(see Cuscani v. the United Kingdom, no. 32771/96, §
39, 24 September 2002). The competent national authorities are
required under Article 6 § 3 (c) to intervene only if a failure
by legal aid counsel to provide effective representation is manifest
or sufficiently brought to their attention in some other way (see
Kamasinski v. Austria, 19 December 1989, Series A no.
168, § 65, and Daud v. Portugal, 21 April 1998,
Reports 1998-II, § 38).
In
the instant case, the Pula Municipal Court assigned a legal aid
lawyer to the applicant. Two different lawyers were named in the
operative part of the decision and its reasoning respectively.
Although this decision was served on the applicant, he was not
provided with either a telephone number or address of either of the
two lawyers and was thus prevented from contacting them. Neither of
the lawyers mentioned had visited the applicant in prison or made any
other contact with him. In this respect, it must be remembered that
the Convention is designed to “guarantee not rights that are
theoretical or illusory but rights that are practical and effective”
and that assigning counsel does not in itself ensure the
effectiveness of the assistance he may afford an accused (see Artico
v. Italy, 13 May 1980, Series A no. 37, § 33). The
fact that a lawyer, T.S., lodged an appeal on behalf of the applicant
could not have remedied the above shortcomings since he could hardly
have been acquainted with the applicant's version of events in view
of the fact that the applicant had remained silent during the trial.
The
foregoing considerations are sufficient to enable the Court to
conclude that in the circumstance of the present case the interests
of justice required the applicant to be legally represented by a
legal aid lawyer in the criminal proceedings against him. However, at
the trial stage of the proceedings he had no such representation, and
the representation of a legal aid lawyer during the appeal
proceedings did not satisfy the requirements of a fair trial.
Accordingly,
there has been a violation of Article 6 §§ 1 and 3(c) of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
The
applicant complained of the length of proceedings, and in particular
those before the Constitutional Court. He relied on Article 6 §
1 of the Convention, the relevant part of which reads:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
The Court reiterates that since 22 March 2002 a
constitutional complaint under section 63 of the Constitutional Court
Act has been considered an effective remedy in respect of length of
proceedings still pending in Croatia (see Slaviček v. Croatia
(dec.), no. 20862/02, ECHR 2002-VII). In that case the Court
established that a constitutional complaint was a means designed both
to accelerate the proceedings and to obtain compensation. On 29
December 2005 a new remedy came into effect (see paragraph 19 above),
again offering the applicant a possibility of obtaining both
compensation for excessive length of proceedings and to have the
proceedings accelerated.
In
the instant case, the applicant did not file a constitutional
complaint prior to 29 December 2005 although the criminal proceedings
against him had up to that point been pending for over two years. He
neither used the new remedy, a request for the protection of the
right to a hearing within a reasonable time with the immediately
higher court, after that date, though the criminal proceedings at
issue continued for some further four months. Instead, he lodged his
application with the Court at the stage of domestic proceedings when
these were pending before the Constitutional Court.
The Court has already held that where an applicant had
means at his or her disposal to use a remedy which would speed up the
proceedings, but failed to use them, a complaint about the length of
proceedings is inadmissible under Article 35 § 1 for
non-exhaustion of domestic remedies and that it had to be rejected
pursuant to Article 35 § 4 of the Convention (see
Sirc v. Slovenia (dec.), no. 44580/98, 16 May 2002, and,
mutatis mutandis, Štajcar v. Croatia (dec.), no.
46279/99, 20 January 2000; Bašić v. Austria,
no. 29800/96, §§ 34-40, ECHR 2001-I and Pallanich
v. Austria, no. 30160/96, §§ 27-33, 30
January 2001).
The
Court sees no reason to exonerate the applicant in the present case
from such an obligation. He should have made use of the domestic
remedies mentioned above, specifically designed to address the length
of pending proceedings, by which he could have not only obtained
compensation but also have the proceedings accelerated. However, he
did not do so at any stage of the proceedings and has therefore
failed to give the domestic authorities the opportunity intended to
be afforded to Contracting States by Article 35 § 1 of the
Convention, namely, the opportunity of preventing or putting right
the alleged violation (see Cardot v. France, judgment of
19 March 1991, Series A no. 200, p. 19, § 36).
The Court has already addressed the same situation in a case against
Croatia (see Cerin v. Croatia (dec.), no. 45043/05, 26 June
2008) where it, in so far as relevant for the present analysis, held:
“It follows that in the period between 15 March
2002 and 28 September 2005, that is, while the impugned proceedings
were pending before the ordinary courts, the applicant could have
lodged a constitutional complaint about their length. However, he did
not do so.
The length of the proceedings in their part before the
Constitutional Court following the applicant's regular constitutional
complaint of 20 December 2005, amounting to some four months,
cannot in itself be considered unreasonable.
It follows that this complaint is inadmissible under
Article 35 §§ 1 and 3 for non-exhaustion of
domestic remedies and as manifestly ill-founded, respectively, and
that it must be rejected pursuant to Article 35 § 4
of the Convention.”
39. Against
this background the Court shall examine the length of proceedings
before the Constitutional Court. While normally the Court would be
called upon to examine overall length of proceedings where the
Constitutional Court proceedings are “extension of proceedings
in ordinary courts” (see Süßmann
v. Germany, 16
September 1996, § 40, Reports
of Judgments and Decisions
1996-IV) and form a part of these proceedings, in this case, for the
reasons explained above, the Court shall concentrate its assessment
on the length of the Constitutional Court proceedings. In this
connection the Court reiterates that the reasonableness of the length
of the proceedings is to be assessed in the light of the particular
circumstances of the case, regard being had to the criteria laid down
in the Court's case-law, in particular the complexity
of the case, the applicant's conduct and that of the competent
authorities, and the importance of what was at stake for the
applicants in the litigation (see Süßmann, cited
above, § 48, and Pammel and Probstmeier v. Germany, 1
July 1997, Reports 1997-IV, § 60).
The
Court firstly observes that the proceedings before the Constitutional
Court concerned an individual complaint about the alleged violation
of the applicant's defence rights in the criminal proceedings against
him. Although the proceedings before the Constitutional Court did not
involve determination of any constitutional issues of broader
importance, they are nevertheless to be distinguished from regular
appeal proceedings. While the appellate courts normally address the
questions such as procedural or factual errors in the proceedings
before the lower courts, the Constitutional Court in Croatia
addresses issues of the conformity of the proceedings and the
decisions taken thereof with the Constitution and the Convention,
which is directly applicable.
The
Court has already held that the length of proceedings before a
Constitutional Court upon an individual constitutional complaint,
comparable with the length in the present case, had not fallen short
of the reasonable time requirement. Thus, there was no violation of
Article 6 § 1 of the Convention as regards the length of
proceedings before the Constitutional Court that lasted two years and
two months (see D.I.S. v. Slovenia (dec.), no. 35274/97,
4 March 1998) or three and a half years (Posedel-Jelinović v.
Croatia, no. 35915/02, § 26, 24 November 2005).
In
the case at issue the proceedings before the Constitutional Court
lasted from 26 June 2006 to 13 November 2008, that is to say, two
years, four months and seventeen days. In view of the special role of
the Constitutional Court as the highest court in Croatia and the
criteria set down in the above-cited Court's case-law and the fact
that the criminal proceedings against the applicant before the
ordinary courts lasted two years, four months and seventeen days at
two levels of jurisdiction, the Court considers that the period in
question did not exceed the reasonable-time requirement.
It
follows that this complaint is inadmissible under Article 35 §§
1 and 3 for non-exhaustion of domestic remedies and as manifestly
ill-founded, respectively, and that it 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 15,000 euros (EUR) in respect of non-pecuniary
damage and the costs of the proceedings before the Court.
The
Government deemed the amount claimed unfounded and excessive.
The
Court considers that the finding of a violation of Article 6 §§
1 and 3(c) of the Convention together with the possibility open to
the applicant under national law to seek a fresh trial (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 claimed EUR 15,000 both for the costs and expenses incurred
before the Court and in respect of non-pecuniary damage.
The
Government deemed the amount claimed excessive.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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, who was not legally
represented, the sum of EUR 100 for the proceedings before the Court.
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 trial admissible;
Declares by six votes to one the remainder of
the application inadmissible;
Holds unanimously that there has been a
violation of Article 6 §§ 1 and 3 (c) of the
Convention;
Holds by five votes to two
(a) that
the finding of a violation constitutes 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 100 (one
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 by five votes to two the applicant's
claim for just satisfaction.
Done in English, and notified in writing on 15 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the partly dissenting opinion of
Judges Spielmann and Malinverni is annexed to this judgment.
C.L.R.
A.M.W.
PARTLY DISSENTING OPINION OF JUDGES SPIELMANN AND
MALINVERNI
(Translation)
We agree in all respects with the Court's
conclusions as to the violation of Article 6 §§ 1 and 3(c)
of the Convention on account of the lack of legal assistance in the
criminal proceedings against the applicant (§ 32).
We cannot follow the majority, however, when
they affirm that “the finding of a violation of Article 6 §
1 of the Convention together with the possibility open to the
applicant under national law to seek a fresh trial (Article 430 of
the Croatian Code of Criminal Procedure) constitutes in itself
sufficient just satisfaction in the circumstances of the present
case” (§ 47).
It is true that the Court has always held that
when an applicant has been convicted despite an infringement of his
rights as guaranteed by Article 6 of the Convention he should, as
far as possible, be put in the position in which he would have been
had the requirements of the provision not been disregarded, and that
the most appropriate form of redress would, in principle, be trial
de novo or the reopening of the proceedings if requested.
However, given its importance, we would have
liked the content of § 47 to have been included in the
operative part of the judgment as well, for the reasons we have
explained in detail in our joint concurring opinion in the case of
Vladimir Romanov v. Russia (no. 41461/02, 24 July 2008).
In our view, it is indeed essential that in its
judgments the Court should not merely give as precise a description
as possible of the nature of the Convention violation found but
should also, in the operative provisions, indicate to the State
concerned the measures it considers most appropriate to redress the
violation.
For that reason, point 3(a) of the operative
part of the judgment, which states only that “the finding
of a violation constitutes sufficient just satisfaction”, seems
insufficient to repair the damage suffered by the applicant.
Generally speaking and independently of the
above considerations, one wonders whether the mere finding of a
violation of a right – no matter which – protected by
the Convention is capable of repairing the harm done to the victim.
It is true that Article 41 of the Convention
stipulates that the Court shall afford just satisfaction only if
necessary. The case-law reveals that the Court has adopted this
solution mainly when the victim had the possibility of obtaining
satisfaction at the domestic level, when the violation found was of
little significance, when the national authorities clearly expressed
the will to reform the legislation or practice at the origin of the
violation or when, as in this case, the victim had the possibility
of requesting the reopening of the domestic proceedings or obtaining
satisfaction at the domestic level.
But can one really consider that the mere
finding of a violation of a fundamental right can possibly afford
redress (see Aquilina v. Malta [GC] judgment, 29 April 1999,
1999-III, pp. 280-81, dissenting opinion of Judge Bonello)?
In the present case the applicant was sentenced
to five months' imprisonment (§ 9). He must have felt anxiety,
distress, confusion and frustration at the authorities' refusal to
appoint a lawyer to assist him. That raises the question whether, in
such a case as this, the finding of a violation alone constitutes
just satisfaction.
To conclude, we should like to point out once
more that in cases similar to this one the Court has awarded victims
just satisfaction. In the case of Artico v. Italy (13 May
1980, Series A, vol. 37), where the Court also found a violation of
Article 6 § 3(c) of the Convention because the applicant's
officially appointed lawyer had failed to defend him effectively and
also on account of the Court of Cassation's inaction, the applicant
was awarded three million lira in respect of non-pecuniary damage.
In Goddi v. Italy (9 April 1984, Series A, vol. 76) the
applicant, who had been charged and placed in detention, had not
been effectively defended by an officially appointed lawyer because
of the inaction of the Bologna Court of Appeal. The Court awarded
him five million lira. In Quaranta v. Switzerland (24 May
1991, Series A, vol. 205) the refusal of the president of the Vaud
canton Criminal Court to appoint a lawyer to assist the accused
during the investigation and at the trial hearing gave rise to a
finding of a violation of Article 6 § 3 (c). The respondent
State had to pay the victim 3,000 Swiss francs. Lastly, in Granger
v. the United Kingdom (28 March 1990, Series A, vol. 174), the
Court awarded the applicant 1,000 pounds in compensation for the
isolation and confusion he must have felt because he had been
refused the assistance of an officially appointed lawyer.
