(Application no. 17182/07)
16 April 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of HanZevački v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 26 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“The ground for appeal raised by the defendant that the first-instance court had made a grave breach of the rules of the Code of Criminal Procedure, Article 367(3), when it held a hearing in the absence of the defendant's counsel, this court finds unfounded. The facts established in the minutes of the hearing held on 9 March 2004 lead to the conclusion that, although the defendant requested the adjournment of the hearing on account of the justified absence of his counsel, the first-instance court assessed that the counsel's absence was not detrimental to the defence and therefore held a hearing and on the same day adopted a first-instance judgment. The conduct of the first-instance court has to be viewed in the light of a [possible] violation of the defence rights and an assessment of its effect on the judgment adopted [by the first-instance court] has to be made. The new facts presented by the defendant at that hearing, on account of which he asked for an adjournment claiming that his counsel was in possession of fresh evidence in connection with the purchase and the price of the “Autocad” software, could not have been of decisive importance for the crime [at issue] as such. That is because the [first-instance] court found the defendant guilty of the principal criminal offence under Article 230(1) of the Criminal Code in respect of which it is not relevant whether it resulted in significant financial gain or significant damage. Exactly for that reason the absence of the defence counsel at the hearing could not have been of influence for the adoption of the impugned judgment and its legality.”
II. RELEVANT DOMESTIC LAW
“(1) The defendant has the right to defend himself or herself in person or through a legal counsel of his or her own choosing among the members of the Bar ...
“After the evidence has been heard the president of the chamber shall allow the parties, the victim and defence counsel to present their closing arguments ...”
“(1) Defence counsel or the defendant personally shall present in their closing arguments the [main points of] the defence and may reply to the arguments of the [prosecution] and the victim.
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 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;
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
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 together with the possibility under national law to seek a fresh trial constitute sufficient just satisfaction;
(b) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,400 (five thousand four hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 16 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Jebens is annexed to this judgment.
DISSENTING OPINION OF JUDGE JEBENS
I respectfully disagree with the majority that there has been a violation of Article 6 in this case. For the reasons set out below, I am of the opinion that the applicant was afforded a fair trial at the Municipal Court.
I note firstly that the applicant's defence counsel was present at the previous hearings, including the hearing on 6 October 2003, when the applicant gave evidence. He also assisted the applicant at the examination of all witnesses which were heard at the previous hearings. Furthermore, he had ample opportunity to present his views on the facts of the case and all pertaining legal issues in written submissions before the final hearing. During the final hearing no further witnesses were heard. However, the applicant himself was heard once more at that hearing and he also gave the closing arguments.
It is also in my opinion relevant for the assessment of the complaint that the applicant was represented throughout the proceedings before the appellate Court and the Constitutional Court. The applicant's counsel thus had a further opportunity to present his views on the case both in an appeal against the first instance judgment and in a constitutional complaint.
More important is, however, in my opinion the fact that the appellate Court carefully examined whether the absence of the defence counsel could possibly have affected the outcome of the case. It answered that question in the negative, and explained it in a concrete and convincing manner, see the quotation in para 10. I see no reason to doubt the validity of the conclusion reached by the appellate Court, bearing in mind also the principle of subsidiarity, with regard to assessment of questions of fact.
Summing up, a scrutiny of the proceedings as a whole leads me to conclude that the applicant was not denied a fair trial (see, mutatis mutandis, Imbrioscia v. Switzerland, 24 November 1993, § 44, Series A no. 275). In the circumstance of the present case I find that the applicant was able to defend himself through legal assistance to the extent required under the Convention. There has therefore in my opinion not been a violation of Article 6 § 1 taken together with Article 6 § 3 c of the Convention.