(Application no. 48185/07)
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,
Sverre Erik Jebens,
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:
I. THE CIRCUMSTANCES OF THE CASE
- 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.
“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.”
“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.”
“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.”
II. RELEVANT DOMESTIC LAW
“(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.”
“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.”
“(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.”
III. PROTECTION OF THE RIGHT TO A HEARING WITHIN A REASONABLE TIME
“(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.”
“(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.”
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3(c) OF THE CONVENTION
“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 parties' submissions
The Court's assessment
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
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
“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).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(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;
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.
PARTLY DISSENTING OPINION OF JUDGES SPIELMANN AND MALINVERNI
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.