European Court of Human Rights

FIRST SECTION

CASE OF KOBAŠ v. CROATIA

(Application no. 27228/14)

JUDGMENT

STRASBOURG

4 October 2018

This judgment is final but it may be subject to editorial revision.

In the case of Kobaš v. Croatia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Aleš Pejchal, President,
Armen Harutyunyan,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,

Having deliberated in private on 11 September 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 27228/14) 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 Ivan Kobaš (-�the applicant-�), on 3 April 2014.

2. The applicant was represented by Ms D. Vidović, a lawyer practising in Zagreb. The Croatian Government (-�the Government-�) were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged that he had not had a fair trial in that the session of the appeal panel in the criminal proceedings against him on charges of causing a road accident had been held in his absence, contrary to Article 6 §§ 1 and 3 (c) of the Convention.

4. On 21 April 2016 the complaint concerning the applicant-�s absence from the session of the appeal panel was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1977 and lives in Županja.

6. On 5 July 2011 the applicant was indicted before the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu ) on charges of causing a road accident under Article 272 of the Criminal Code.

7. The applicant was tried in summary proceedings ( skraćeni postupak ). On 4 May 2012 the Zagreb Municipal Criminal Court convicted the applicant as charged and gave him a suspended sentence of four months-� imprisonment with two years-� probation.

8. On 23 May 2012 the applicant appealed against his conviction and asked to be allowed to appear at the session of the appeal panel.

9. On 15 January 2013 the Zagreb County Court ( Županijski sud u Zagrebu ), without informing the applicant or his lawyer, examined the case without holding a hearing. It dismissed the appeal and upheld the applicant-�s conviction and sentence.

10. The applicant then lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), complaining, inter alia , that he had not been allowed to appear at the session of the appeal panel.

11. On 18 September 2013 the Constitutional Court declared the applicant-�s constitutional complaint inadmissible as manifestly ill-founded. That decision was served on the applicant-�s representative on 4 October 2013.

II. RELEVANT DOMESTIC LAW

12. The relevant domestic law is set out in the judgment of Arps v. Croatia , no. 23444/12, §§ 12-15, 25 October 2016.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION

13. The applicant complained that he had not had a fair trial in that he had not been allowed to be present at the session of the appeal panel before the Zagreb County Court. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads:

-�1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an ... impartial tribunal established by law. ...

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;-�

A. Admissibility

14. The Court notes that this complaint is 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

15. The applicant submitted that his presence at the session of the appeal panel had been necessary because in his appeal he had challenged the first-�instance judgment on all appellate grounds, so the Zagreb County Court had been called upon to examine all the factual and legal circumstances of the case. Had he been allowed to attend the session, he could have presented his case in person and elaborated on the failures of the Zagreb Municipal Criminal Court with respect to the facts and law which he had alleged in his appeal. The applicant considered it irrelevant that the prosecution had not lodged an appeal against the first-instance judgment since it had been crucial for the Zagreb County Court to hear him in person in order properly to assess the circumstances of his case and to amend the first-instance judgment in his favour.

16. The Government argued that under the relevant domestic law and practice in situations such as that in the instant case − where the defendant had been tried in summary proceedings and had been given a suspended prison sentence − the appellate court had the discretion to decide whether it was expedient to allow the defendant to attend the session of the appeal panel. The Government further argued that the Zagreb County Court had correctly held that there was no reason for the applicant to attend the session of the appeal panel as he had been heard during the trial and had been granted the opportunity to participate effectively in the proceedings before the first-instance court. The Government also contended that the applicant-�s appeal was clear and lacked any allegations that would warrant his presence at the appeal session. Furthermore, since the prosecution had not appealed against the first-instance judgment and had not been summoned to the session of the appeal panel, the Government deemed that the applicant had not been placed in a disadvantageous position vis-à-vis the prosecution. Moreover, they asserted that the Zagreb County Court had not had the power to impose a more severe sentence on the applicant and, in view of the applicant-�s arguments in his appeal, it had had no reason to hear him in person.

2. The Court-�s assessment

17. The Court notes that it has already found a violation of Article 6 §§ 1 and 3 (c) of the Convention in cases raising a similar issue (see Zahirović v. Croatia , no. 58590/11, §§ 58-64, 25 April 2013; Lonić v. Croatia , no. 8067/12, §§ 94-102, 4 December 2014, and Arps, cited above, §§ 24-�29).

18. In the latter cases the Court has already addressed all the particular arguments put forward by the Government in the present case (ibid.). Having examined all the material submitted to it, the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

19. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

20. 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

21. The applicant claimed 10,670 euros (EUR) in respect of pecuniary and non-pecuniary damage.

22. The Government deemed this claim excessive, unfounded and unsubstantiated.

23. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this part of the claim. On the other hand, the Court finds that the applicant must have sustained non-�pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

B. Costs and expenses

24. The applicant also claimed EUR 840 for the costs and expenses incurred before the domestic courts and EUR 3,360 for those incurred before the Court.

25. The Government contested these claims.

26. 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 are reasonable as to quantum. As to the proceedings instituted by the applicant before the national authorities, the Court agrees that, as they were in part aimed at remedying the violation of the Convention alleged before the Court, the domestic legal costs may be taken into account in assessing the claim for costs (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 284, ECHR 2006-�V). Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 675 for costs and expenses in the proceedings before the national authorities, plus any tax that may be chargeable to him on that amount. As to the Convention proceedings, making its assessment on an equitable basis and in the light of its practice in comparable cases, the Court considers it reasonable to award the applicant, who was represented by counsel, the sum of EUR 1,350 plus any tax that may be chargeable to him on that amount.

C. Default interest

27. The Court considers it appropriate that the default interest rate 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, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:

(i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,025 (two thousand and twenty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) 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;

4. Dismisses the remainder of the applicant-�s claim for just satisfaction.

Done in English, and notified in writing on 4 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Renata Degener Aleš Pejchal
Deputy Registrar President