CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 février 2015

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CROATIA   (Application no. 66408/12)           JUDGMENT     This version was rectified on 7 April 2015 under Rule 81 of the Rules of Court     STRASBOURG       12 February 2015     FINAL   06/07/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Sanader v. Croatia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Erik Møse,   Ksenija Turković,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 20 January 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 66408/12) 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 and Serbian national, Mr Mile Sanader (“the applicant”), on 14 September 2012. 2.     The applicant was represented by Mr Ð. Dozet, a lawyer practising in Belgrade. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     The applicant alleged, in particular, that he had not been able to obtain a rehearing after his conviction in absentia , and that he had not been effectively represented by a legal-aid lawyer during the proceedings conducted in his absence, as required by Article 6 §§ 1 and 3 (c) of the Convention. 4.     On 11 June 2013 the application was communicated to the Government. 5.     On 12 June 2013 the Government of Serbia was informed of the case and invited to exercise their right to intervene if they wished to do so. On 30   August 2013 the Government of Serbia informed the Court that they did not wish to exercise their right to intervene. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1957 and lives in Vrdnik, Serbia. A.     The criminal proceedings against the applicant 7.     On 19 November 1991 the Sisak Police Department ( Policijska uprava Sisak ) lodged a criminal complaint against the applicant alleging that he had participated in a group of members of the Serb paramilitary forces who, in September 1991, had shot twenty-seven prisoners of war in Petrinja, killing twenty-two and severely injuring five of them. The police noted in their report that the applicant could not be apprehended because he lived in an area of Croatia which was, at the time, outside the country’s effective control. 8.     On 8 January 1992 [1] an investigating judge of the Sisak County Court ( Županijski sud u Sisku ) opened an investigation in respect of the applicant, his brother, D. Sanader, and two others, M.D. and S.D., in connection with a suspicion that they had committed war crimes against the prisoners of war. As all the suspects were at large, the judge ordered their pre-trial detention and issued arrest warrants. 9.     During the investigation the investigating judge questioned a number of witnesses. Several of them testified about the applicant’s brother’s involvement in the killings and his position as commander of the paramilitary group. They also named M.D. as a direct perpetrator of the killings. One of the witnesses, D.P., testified that after the killings he had heard people saying that “Sanader’s group” had committed the crime and he had later seen the applicant with that group. Another witness, M.Ž., who had survived the shootings, testified that after the event he had been shown the applicant’s photo and it had appeared to him that the applicant had also been there and had personally killed three people. Another survivor of the shooting, I.B., testified that after the crime one of the newspapers in Croatia had published photos of the applicant and his brother. He had recognised the applicant’s brother as one of the participants in the shooting but he had not recognised the applicant as having been at the scene. 10.     On 25 November 1992 the Sisak County State Attorney’s Office ( Županijsko državno odvjetništvo u Sisku ) indicted the applicant, D.Sa., M.D. and S.D. in the Sisak County Court on charges of war crimes against prisoners of war. 11.     On the same day the Sisak County State Attorney’s Office asked the Sisak County Court to try the applicant and the other accused, who lived on the occupied territory of Croatia, in absentia , as they were not available to the Croatian authorities, and requested that warrants for their arrest be issued. 12.     On 15 December 1992 a three-judge panel of the Sisak County Court ordered the applicant’s detention pending trial and issued an arrest warrant. 13.     It also granted the request for the applicant’s trial in absentia on 30   December 1992. The relevant part of the decision reads: “On 25 November 1992 D. Sanader and others were indicted in this court on a reasonable suspicion that they had committed the offence [specified] under Article   144 of the Criminal Code. The State Attorney further requested that they be tried in absentia . The request is granted. The accused are at large and a detention and arrest warrant have been issued, as noted in the police report. Since the accused have been indicted for a crime against humanity and international law – a war crime against prisoners of war under Article 144 of the Criminal Code, and given that they are at large, [this court] considers that highly justified reasons for their trial in absentia exist.” 14.     On 5 January 1993 the President of the Sisak County Court appointed the applicant and the other accused a legal-aid lawyer, E.F. 15.     At a hearing on 21 January 1993 the trial court heard eight witnesses, including M.Ž. and I.B. (see paragraph 9 above). They all confirmed the statements they had made to the investigating judge. The Deputy State Attorney and the applicant’s legal-aid lawyer asked no questions and made no objections to their statements. The parties also agreed that the written records of statements by thirteen other witnesses, including D.P. (see paragraph 9 above), be admitted in evidence without those witnesses having been questioned at the trial. In his closing statement, the applicant’s legal-aid lawyer stated: “The defence notes that the pre-trial and trial procedure has been thorough and invites the court to assess all the evidence adduced, in particular each witness statement taken alone and in conjunction with other statements, and, based on that assessment, to deliver a decision in accordance with the law.” 16.     On the same day the applicant was convicted as charged and sentenced to twenty years’ imprisonment. The trial court considered that the witness statements provided sufficient evidence for conviction and noted that the legal-aid lawyer had made no objections to those statements. 17.     The applicant’s legal-aid lawyer lodged an appeal with the Supreme Court ( Vrhovni sud Republike Hrvatske ) on 26 February 1993 arguing that the first-instance judgment was not sufficiently reasoned. 18.     On 24 May 1995 the Supreme Court allowed the appeal, quashed the first-instance judgment and remitted the case for retrial on the grounds that the first-instance judgment lacked sufficient reasoning 19.     In the resumed proceedings, three hearings, scheduled for 7 and 8   November 1995 and 2 July 1996 [2] were adjourned, because the defence lawyer could not be summoned. A further hearing scheduled for 11 September 1996 was adjourned owing to the absence of one of the members of the trial panel. During this period the trial court also obtained a number of autopsy reports concerning the victims of the crime at issue. 20.     At a hearing held on 3 March 1999 the trial court, with the approval of the parties, read out the evidence from the case file and concluded the hearing. The legal-aid lawyer reiterated his previous closing statement (see paragraph 15 above). 21.     On the same day the trial court found the applicant guilty and sentenced him to twenty years’ imprisonment. It based its judgment on the witness statements and the autopsy reports concerning the victims of the crime. 22.     On 30 April 1999 the legal-aid lawyer lodged an appeal with the Supreme Court arguing that the first-instance judgment lacked sufficient reasoning. 23.     On 2 August 2000 one of the accused, S.D., was apprehended and brought before the investigating judge, who informed him of the proceedings and ordered his pre-trial detention. 24.     On 6 September 2000 the Supreme Court upheld the first-instance judgment of the Sisak County Court in the part which concerned the applicant, D. Sanader and M.D., and quashed it and ordered a retrial in respect of S.D., on the grounds that the latter had been apprehended and that therefore he had the right to a fresh trial in his presence. 25.     On 16 January 2004, after the applicant’s conviction had become final, a sentence-execution judge of the Sisak County Court issued an arrest warrant for the applicant’s arrest and imprisonment. B.     The applicant’s request for the reopening of the proceedings 26.     Meanwhile, the applicant learned through a lawyer in Croatia about his criminal conviction in the Sisak County Court. 27.     On 9 November 2009 the applicant asked the Sisak County Court to reopen the proceedings on the grounds that he had learned about the judgment of 3 March 1999 only in December 2008 and that he had not committed the crime at issue. He argued that the witnesses had just mentioned his name and that the only witness statement directly implicating him in the crime, that of M.Ž., had not been properly interpreted in the judgment. He stressed that he would be prepared to take part in a witness confrontation with any of those who had testified against him or counter any evidence against him. He also asked that a number of witnesses be heard on his behalf, and that the possibility of trying him before a war crimes tribunal in Belgrade be considered. Together with his request the applicant submitted certified statements by six people excluding the possibility of his involvement in the crime on the grounds that at the relevant time he had not been in Petrinja. 28.     Based on the information provided by the applicant, and given that the witnesses at issue lived in Serbia, the Sisak County Court asked the Serbian authorities to question them. During their questioning the witnesses reiterated their statements excluding the possibility that the applicant had been in Petrinja at the time of the events. 29.     After receiving the witness statements from the Serbian authorities in July 2010, the Sisak County Court forwarded the case file to the Sisak County State Attorney’s Office for their observations on the applicant’s request for a retrial. 30.     On 24 August 2010 the Sisak County State Attorney’s Office submitted their observations on the applicant’s request for a retrial which, in the relevant part, read: “Given that the trial proceedings in the case at issue were fair and given that the first and second-instance courts gave sufficient reasons for their judgments, we consider that the request for a retrial in the absence of the second accused Mile Sanader should not be granted because none of the witnesses ... confirmed the arguments from the request for retrial ...” 31.     On 30 August 2010 a three-judge panel of the Sisak County Court dismissed the applicant’s request on the grounds that he had failed to show that there were any new facts which could alter his conviction. The relevant part of this decision reads: “... this panel of the Sisak County Court considers that Mile Sanader’s request for a retrial does not contain any new facts or evidence which could, in themselves or in conjunction with the previously adduced evidence, lead to his acquittal or his conviction under more lenient law. All the witnesses stated that they had known Mile Sanader from the period before the war. Although they all, and in particular witnesses M.Žil. and V.V., attempted to exclude the possibility of the convict’s presence in the area where the killings of the Croatian soldiers took place in September 1991, this panel considers that these statements are not sufficiently credible or precise to completely exclude the possibility of the convict’s participation in the massacre. In the proceedings before the Sisak County Court Mile Sanader was found guilty of the offence under Article 122 of the Criminal Code and the Supreme Court upheld that judgment. Based on the comprehensively and correctly established facts [the trial court] found beyond reasonable doubt that the massacre of the Croatian soldiers had been committed by the so-called ‘Sanader group’ and that the leader of that group had been the convict’s brother, D. Sanader. Witness M.T., who had been a soldier in the paramilitary group, testified that the third convict, M.D., had told him that he had killed the prisoners at the request of D. Sanader, while witness M.Ž., one of the survivors of the shooting, testified that he had recognised D. Sanader as the perpetrator of the crime from a photo and Mile Sanader as having killed three prisoners while they had been lying face down on the ground with their hands on their heads. Against this background, the panel considers that the second convict, Mile Sanader, has not managed to cast doubt on the facts established during the trial which led to his conviction for the offence under Article 122 of the Criminal Code and his sentencing to twenty years’ imprisonment.” 32.     The applicant lodged an appeal with the Supreme Court on 8   September 2010, arguing that the relevant domestic law required an automatic reopening of proceedings where an accused had been tried in absentia and then sought a fresh hearing, a fact to which the Sisak County Court had given no consideration. He also argued that the evidence suggested that he was not guilty of the offences he had been convicted of. 33.     On 19 January 2011 the Supreme Court dismissed the applicant’s request on the grounds that he could not rely on the provision granting automatic reopening of the proceedings since he lived in Serbia and was not available to the Croatian judicial authorities. It examined, therefore, whether any new facts warranted the reopening of the proceedings and found that no such facts existed. Accordingly, the applicant’s request was dismissed. 34.     The applicant lodged a complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 5 December 2011, arguing that he had not been able to obtain a retrial and that during the proceedings conducted in his absence he had not been effectively represented. 35.     On 23 February 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the constitutional complaint concerned the proceedings for the reopening of the criminal proceedings and not any criminal charge against the applicant. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant domestic law 1.     Constitution 36.     The relevant provision of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010) reads as follows: Article 29 “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law. In respect of any criminal charge brought against him, the suspect, defendant or accused shall have the following rights ... -   to [the services of] a lawyer ..., -   to mount a defence on his own or through the lawyer of his choice, and, if he does not have sufficient means to pay for legal assistance, to be given it free as provided under the law, -   to be present at the trial, if he is available to the court ...” 2.     Criminal Code 37.     The relevant provision of the relevant Criminal Code ( Krivični zakon Republike Hrvatske , Official Gazette no. 53/1991) reads: War crime against prisoners of war Article 122 “Whoever acts contrary to the rules of international law by ordering that prisoners of war be killed, tortured or ill-treated, subjected to biological, medical or other scientific tests, that their tissue or organs be taken for transplantation, that they be subjected to severe suffering or damage to their mental integrity or health, that they be forced to serve the enemy army forces, that they be prevented from exercising the right to a fair trial by an impartial tribunal, and whoever commits any of these acts shall be punished by a term of imprisonment of between five and twenty years. 3.     Code of Criminal Procedure 38.     The Code of Criminal Procedure in force at the time of the applicant’s trial in absentia ( Zakon o krivičnoom postupku , Official Gazette no. 53/1991) provided: Article 10 “ ... (2)     If the defendant does not have a lawyer, the court shall appoint him one whenever the law so requires. ...” Article 63 “(1)     Several accused can have the same defence lawyer it that is not contrary to the interests of their defence. ...” Article 65 “ ... (3)     When an accused is tried in absentia (Article 290) he must have a lawyer from the moment of the decision allowing for the trial in his absence. ...” Article 67 “ ... (4)     The President of the court can, on a request by the accused or with his consent, dismiss a legal-aid lawyer who fails to perform his duties properly. The President of the court shall appoint another lawyer in his place. The Bar Association shall be notified of the dismissal of a lawyer.” Article 290 “ ... (3)     The accused can be tried in absentia if he is at large or is otherwise unable to be reached by the State authorities, and there are highly important reasons to conduct the trial in his absence. (4)     A trial in absentia shall be ordered by a panel of judges at the request of the prosecutor. An appeal against this decision does not have suspensive effect.” 39.     The provisions of the Code of Criminal Procedure relevant to the applicant’s request for the reopening of the proceedings ( Zakon o kaznenom postupku , Official Gazette, nos. 152/2008 and 76/2009) read: Article 98 Preventive Measures “(1)     Where the conditions for ordering detention under Article 123 of this Code have been fulfilled, and where the same purpose may be achieved by other preventive measures, the court or the State attorney shall order the application of one or more preventive measures ... (2)     Preventive measures are: 1)     prohibition on leaving one’s place of residence; 2)     prohibition on being in a certain place or area; 3)     obligation of the defendant to report periodically to a certain person or a State body; 4)     prohibition on contact with a certain person; 5)     prohibition on establishing or maintaining contact with a certain person; 6)     prohibition on undertaking a certain business activity; 7)     temporary seizure of a passport or other document necessary for crossing the State border; 8)     temporary seizure of a driving licence ...” Article 102 Bail “(1)     Detention ordered pursuant to Article 123 paragraphs 1 to 3 of this Code may be lifted provided that the defendant himself, or another person on his behalf, posts bail and the defendant personally promises that he will not hide or leave his place of residence without permission, that he will not interfere with the criminal proceedings and that he will not commit another criminal offence. (2)     In the decision on detention, the court may set bail to substitute detention.... Bail shall always be set in a pecuniary amount determined with regard to the gravity of the criminal offence and the personal circumstances and financial situation of the defendant. (3)     If the court considers that bail cannot substitute detention, it shall set out the reasons why it considers that [to be so]. (4)     Complementary to bail, the court may order the application of one or more preventive measures.” Article 123 Grounds for Ordering Detention “(1)     Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention: 1.     if he has absconded or there are special circumstances suggesting that he might abscond ... 2.     if there is a risk that he might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might suborn witnesses, or where there is a risk of collusion; 3.     special circumstances justify the suspicion that the person concerned might reoffend; ... 4.     if pre-trial detention is necessary for the normal conduct of proceedings concerning an offence punishable by a long term of imprisonment and if the circumstances of the offence are particularly serious.” 1. Reopening of Criminal Proceedings Article 497 “(1)     Criminal proceedings terminated by a final decision or judgment may be reopened upon the request of an authorised person only in the cases and under the conditions provided for by this Code. (2)     Criminal proceedings in which a person was sentenced in his absence (Article   402 paragraph 3 and 4), if there is a possibility of a re-trial in his presence, shall be reopened also under the conditions provided for in Article 498 and Article   501 of this Code, if the accused or his counsel submits a request for the reopening of the proceedings within a period of one year from the day the accused learned about the judgment by which he was sentenced in his absence. (3)     In a decision allowing the reopening of criminal proceedings under the provision of paragraph 1 of this Article, the court shall decide that the indictment is to be served on the accused if it was not served earlier, and may also decide to return the case to the investigation stage or to conduct an investigation if one was not conducted. (4)     Upon the expiry of the time-limit under paragraph 2 of this Article, the reopening of criminal proceedings shall be allowed only under the conditions provided for in Article 498 and Article 501 of this Code.” Article 498 “(1)     A final judgment may be revised without the reopening of proceedings: 1)     if in two or more judgments concerning the same person several punishments were imposed without the subsequent fixing of an aggregate sentence for concurrent offences; 2)     if, when imposing an aggregate sentence by application of the provisions on concurrent offences, a punishment which had already been included in the sentence was duplicated; 3)     if a final judgment imposing an aggregate punishment for several offences is partially unenforceable due to an act of amnesty, pardon, or for other reasons. ...” Article 501 “(1)     Criminal proceedings terminated by a final judgment may be reopened to the benefit of the defendant, regardless of whether he was present: 1)     if the judgment was based on a false document or recording, or the false testimony of a witness, expert witness or interpreter; 2)     if the judgment resulted from a criminal offence committed by the State Attorney, judge, lay judge, investigator or person who collected evidence; 3)     if new facts or new evidence are presented which alone or in relation to previous evidence may lead to the acquittal of the person who was convicted or to his conviction on the basis of a more lenient criminal-law provision; 4)     if a person was convicted more than once for the same offence, or if more than one person was convicted for the same offence where that offence could only have been committed by one person or by some of those convicted; 5)     if, in the case of a conviction for a continuous act or any other offence which under the law encompasses several acts of the same kind, new facts or new evidence are presented indicating that the convicted person did not commit an act included in the offence at issue, provided that these facts are likely to substantially affect the punishment. ...” Article 504 “ ... (2)     A request for the reopening of proceedings under Article 501 paragraph 1(3) may be lodged by the parties or the defence lawyer if the defendant has been tried in absentia (Article 402 paragraphs 3 and 4) irrespective of the defendant’s presence [at the time of the lodging of the complaint] ...” Article 505 “(1)     A decision on a request for the reopening of proceedings shall be adopted by a panel of judges of the court where the trial was held. ...” Article 506 “(1)     The court shall reject a request for reopening if it finds that the request has been lodged by an unauthorised person or that there are no legal grounds for the reopening of the proceedings, that the same facts and evidence have already been raised in a request for the reopening of the proceedings which has been dismissed by way of a final decision, if it is clear that the facts and evidence would not lead to the reopening of the proceedings, [or if the request has not been sufficiently substantiated]. (2)     If the request is not rejected, the court shall forward it to the other party, which has the right to reply within eight days. When the court receives the reply, or if there is no reply within the relevant period, the president of the panel shall, alone or through an investigating judge, examine the facts and obtain the evidence referred to in the request. (3)     ... In the case of an offence prosecuted ex officio , the president of the panel shall order that the case file be forwarded to the State Attorney, who shall return the case file together with his or her opinion.” Article 507 “(1)     When the State Attorney returns the case file, the court shall, unless it decides to make a further inquiry based on the results of its examination, order that the proceedings be reopened or dismiss the request for reopening if the new evidence does not warrant the reopening of the proceedings. ... (3)     In a decision allowing for the reopening of the proceedings, the court shall specify whether the trial should be reopened or the case returned to the indictment stage. (4)     If the court considers, based on the evidence submitted, that in the new proceedings the convict could receive a sentence which would, taken into account the time he has already served, lead to his release, or could be acquitted, or that the charges could be dismissed, it shall order that the execution of sentence be postponed or discontinued. (5)     When a decision allowing for the reopening of proceedings becomes final, the serving of the sentence shall be stayed and the court shall, if so requested by the State Attorney and if the conditions under Article 123 of this Code have been met, order pre-trial detention.” Article 508 “(1)     The same provisions of substantive law applicable in the previous proceedings, save for the provisions concerning prescription periods, shall be applicable in the new reopened proceedings. In the new proceedings the court shall not be bound by the decisions it rendered in the previous proceedings. ... (3)     In its judgment rendered in the new proceedings, the court shall set aside the previous judgment partially or in whole, or rule that it remain in force. ...” 40.     The 2011 amendments to the Code of Criminal Procedure ( Zakon o izmjenama i dopunama Zakona o kaznenom postupku , Official Gazette no.   80/2011) changed the manner of calculation of the one-year period for lodging a request for the reopening of proceedings by a defendant who has been tried in absentia . These amendments specified that such a request can be lodged within a period of one year from the moment at which the defendant became available to the domestic judicial authorities. 41.     The same amendments, as additionally revised by a 2013 amendment to the Code of Criminal Procedure ( Zakon o izmjenama i dopunama zakona o kaznenom postupku , Official Gazette no. 145/2013), also provide: Article 502 “... (2)     The provisions concerning the reopening of criminal proceedings shall be applicable in case of a request for revision of any final court decision in connection with a final judgment of the European Court of Human Rights by which a violation of the rights and freedoms under the Convention for the Protection of Human Rights and Fundamental Freedoms has been found. (3)     A request for the reopening of proceedings in connection with a final judgment of the European Court of Human Rights can be lodged within a thirty-day time-limit starting from the date on which the judgment of the European Court of Human Rights becomes final.” B.     Relevant practice 42.     In decision no. I Kž-347/1998-3 of 20 July 1998 the Supreme Court dealt with a situation partially similar to the case at issue, in which it assessed the possibility of reopening proceedings at which the accused had been convicted in absentia under the procedural legislation pre-dating the 2008 Code of Criminal Procedure, which contained requirements identical to those provided under Article 497 § 2 of the 2008 Code of Criminal Procedure (see paragraph 39 above). The relevant part of the decision reads: “According to the first-instance court ‘there is no possibility of a retrial in the presence of the convicted persons given that ... despite arrest warrants having been issued for the purpose of bringing them to serve their sentences, they are still at large’ and the fact that they, save for N.P. and M.K., who live in the Federal Republic of Yugoslavia at unknown addresses, ‘were found by the police at their addresses, does not mean that there is a possibility for a trial in their presence’ because such a possibility would exist ‘only if they had started serving their prison sentences [which is] a requirement for adopting a decision on their requests for retrial. The decision of the first-instance court that there is no possibility for a retrial in the presence of the convicted persons is, for the time being, correct only with regard to M.K. and N.P. According to the police report of 4 February 1998, M.K. and N.P. live in the Federal Republic of Yugoslavia, in Serbia, M.[K.] in G. and [N.]P. in M. ... There is therefore no possibility for a retrial in their presence ... Only when they return to Croatia will M.K. and N.P. be able to request a retrial ...” 43.     In the same decision the Supreme Court examined the situation of the other convicted persons, who lived in Croatia, and found that in their case it was not necessary to start serving their prison sentences before they could lodge a request for a retrial, since the necessity of the deprivation of their liberty could be assessed based on the general provisions on pre-trial detention. 44.     In the decision no. I Kž-368/01-3 of 30 January 2002 the Supreme Court dismissed an appeal against a decision rejecting a request for reopening of the proceedings lodged by a person convicted in absentia who was not present in Croatia. The Supreme Court noted the following: “The Supreme Court considers that the convicted person should personally approach the court and provide his or her address in Croatia where he or she would be available during the criminal proceedings, but also allow the execution of the final conviction to the prison sentence, which can be, under the conditions provided for in Article 410 §§   1 and 5 of the Code of Criminal Procedure, postponed, suspended or terminated.” 45.     In decision no. I Kž-664/09-7 of 19 November 2009 the Supreme Court quashed a first-instance judgment adopted after the trial in absentia of an accused who, upon his arrest and detention, had requested the reopening of the proceedings. The relevant part of the decision reads: “The criminal proceedings against the accused, F.I., had been conducted in his absence. In the meantime, the accused, F.I., was arrested based on an arrest warrant and detention order, and since 18 September 2009 he has been detained in Z. Prison. As it can be seen from the case file, the accused, F.I., has requested a retrial. Therefore, without going into the question of the merits of B.Z. and F.I.’s appeals, this second-instance court finds that it is possible to retry F.I. in his presence, as provided under Article 497 paragraph 2 of the Code of Criminal Procedure (Official Gazette nos. 152/08 and 76/2009). This is because where an accused has been tried in absentia , when there is a possibility for a trial in his presence the proceedings shall be reopened under the conditions laid down in Articles 498 and 501 of the 2008 Code of Criminal Procedure if either the convicted person or his lawyer submits a request for the reopening of the proceedings within a period of one year from the date the convicted person learned about the judgment. ...” 46.     On 2 October 2012, in case no. I Kž-640/12-4 the Supreme Court upheld a first-instance decision of the Šibenik County Court ( Županijski sud u Šibeniku ) rejecting a request for the reopening of proceedings conducted in absentia which had been lodged by an individual living in Bosnia and Herzegovina. The relevant part of the decision reads: “Contrary to the appellant’s arguments, [this court considers that] the conclusion of the first-instance court that there is no ground for a retrial under Article 497 paragraph   2 of the 2008 Code of Criminal Procedure is correct. This is because in his appeal the convicted person failed to indicate any reason for the reopening of the proceedings under Article 501 paragraph 1 of the 2008 Code of Criminal Procedure, merely pointing out that he had been tried in absentia . However, his request and appeal show that he still lives on the territory of Bosnia and Herzegovina, and therefore his assertion that he is available to the Croatian authorities cannot be accepted. Irrespective of the fact that his address abroad is known and irrespective of his promise to come to every court hearing, he is still outside the jurisdiction of [the Croatian authorities]. It should be also noted that the time-limit for lodging a request for the reopening of proceedings under Article 497 paragraph 2 of the 2008 Code of Criminal Procedure starts to run on the day when the convicted person becomes available to the Croatian authorities and not from the moment he learns about his conviction, as the appellant wrongly suggested (Article 43 of the Amendments to the Code of Criminal Procedure, Official Gazette no 80/2011 of 13 July 2011).” C.     Relevant domestic legal theory 47.     In her two articles on the problem of the reopening of proceedings in Croatian criminal justice system, Ana Garačić, the Vice President of the Supreme Court and the President of its Criminal Department, provided a normative analysis of the general substantive and procedural issues of reopening (see A. Garačić, “Standard and Extraordinary Reopening of Proceedings” [ Prava i neprava obnova kaznenog postupka ], Hrvatska pravna revija (2005), pp. 108-119) and the specific issues associated with trials in absentia (see A. Garačić, “Reopening of Proceedings Conducted In Absentia ” [ Obnova kaznenog postupka kod suđenja u odsutnosti ], Hrvatska pravna revija (2009), pp. 106-110). 48.     She explained that Article 497 § 2 of the 2008 Code of Criminal Procedure (see paragraph 39 above) represented an exception in that an individual tried in absentia had the right, exclusively dependent on his will, to seek the reopening of the proceedings without any further substantive conditions. Thereby he could challenge the findings of the final judgment and potentially have it set aside. However, according to the settled practice of the domestic courts the person concerned should, at the time of making a request for reopening, be immediately available to the authorities and able to appear in court. The exception to this rule, which was notably the most important new feature introduced by the 2008 Code of Criminal Procedure, was provided under Article 504 § 2 of that Code (see paragraph 39 above) allowing a convicted person to seek the reopening of proceedings even if he or she was not immediately available to the court. But this was applicable only if he or she could show the existence of new facts or evidence which could lead to acquittal or resentencing under a more lenient provision (Garačić 2009, pp. 106-108). 49.     She also explained that from a procedural perspective if a person convicted in absentia made himself available to the court and obtained a retrial but later failed to participate effectively in the proceedings by not attending hearings, a decision upholding the previous conviction should be adopted (Garačić 2005, p. 118). III.     RELEVANT INTERNATIONAL MATERIAL A.     Council of Europe 50.     The relevant part of the European Convention on the International Validity of Criminal Judgments of 28 May 1970 (ETS No. 70) provides: Section 3 – Judgments rendered in absentia and ordonnances pénales Article 21 “... (2)     Except as provided in paragraph 3, a judgment in absentia for the purposes of this Convention means any judgment rendered by a court in a Contracting State after criminal proceedings at the hearing of which the sentenced person was not personally present. (3)     Without prejudice to Articles 25, paragraph 2, 26, paragraph 2, and 29, the following shall be considered as judgments rendered after a hearing of the accused: a.   any judgment in absentia and any ordonnance pénale which have been confirmed or pronounced in the sentencing State after opposition by the person sentenced; b.   any judgment rendered in absentia on appeal, provided that the appeal from the judgment of the court of first instance was lodged by the person sentenced.” Article 23 “(1)     If the requested State sees fit to take action on the request to enforce a judgment rendered in absentia or an ordonnance pénale , it shall cause the person sentenced to be personally notified of the decision rendered in the requesting State. ...“ Article 24 “(1)     After notice of the decision has been served in accordance with Article 23, the only remedy available to the person sentenced shall be an opposition. Such opposition shall be examined, as the person sentenced chooses, either by the competent court in the requesting State or by that in the requested State. If the person sentenced expresses no choice, the opposition shall be examined by the competent court in the requested State. (2)     In the cases specified in the preceding paragraph, the opposition shall be admissible if it is lodged with the competent authority of the requested State within a period of 30 days from the date on which the notice was served. This period shall be reckoned in accordance with the relevant rules of the law of the requested State. The competent authority of that State shall promptly notify the authority which made the request for enforcement.” Article 25 “(1)     If the opposition is examined in the requesting State, the person sentenced shall be summoned to appear in that State at the new hearing of the case. Notice to appear shall be personally served not less than 21 days before the new hearing. This period may be reduced with the consent of the person sentenced. The new hearing shall be held before the court which is competent in the requesting State and in accordance with the procedure of that State. (2)     If the person sentenced fails to appear personally or is not represented in accordance with the law of the requesting State, the court shall declare the opposition null and void and its decision shall be communicated to the competent authority of the requested State. The same procedure shall be followed if the court declares the opposition inadmissible. In both cases, the judgment rendered in absentia or the ordonnance pénale shall, for the entire purposes of this Convention, be considered as having been rendered after a hearing of the accused. (3)     If the person sentenced appears personally or is represented in accordance with the law of the requesting State and if the opposition is declared admissible, the request for enforcement shall be considered as null and void.” Article 26 “(1)     If the opposition is examined in the requested State the person sentenced shall be summoned to appear in that State at the new hearing of the case. Notice to appear shall be personally served not less than 21 days before the new hearing. This period may be reduced with the consent of the person sentenced. The new hearing shall be held before the court which is competent in the requested State and in accordance with the procedure of that State. (2)     If the person sentenced fails to appear personally or is not represented in accordance with the law of the requested State, the court shall declare the opposition null and void. In that event, and if the court declares the opposition inadmissible, the judgment rendered in absentia or the ordonnance pénale shall, for the entire purposes of this Convention, be considered as having been rendered after a hearing of the accused. (3)     If the person sentenced appears personally or is represented in accordance with the law of the requested State, and if the opposition is admissible, the act shall be tried as if it had been committed in that State. Preclusion of proceedings by reason of lapse of time shall, however, in no circumstances be examined. The judgment rendered in the requesting State shall be considered null and void. ...” Article 29 “If the person sentenced in absentia or by an ordonnance pénale lodges no opposition, the decision shall, for the entire purposes of this Convention, be considered as having been rendered after the hearing of the accused.” 51.     The Committee of Ministers Resolution (75)11 of 21 May 1975 on the criteria governing proceedings held in the absence of the accused provides: “The Committee of Ministers, ... I.     Recommends that the governments of the member states apply the following minimum rules: ... 8.     A person tried in his absence on whom a summons has not been served in due and proper form shall have a remedy enabling him to have the judgement annulled. ...” 52.     The relevant part of the Second Additional Protocol to the European Convention on Extradition of 17 March 1978 (ETS No. 98) provides: Chapter III Article 3 “The Convention shall be supplemented by the following provisions: “Judgments in absentia 1.     When a Contracting Party requests from another Contracting Party the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia, the requested Party may refuse to extradite for this purpose if, in its opinion, the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with criminal offence. However, extradition shall be granted if the requesting Party gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence. This decision will authorise the requesting Party either to enforce the judgment in question if the convicted person does not make an opposition or, if he does, to take proceedings against the person extradited. ...” B.     European Union 53.     The Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial, in its part relevant to the European arrest warrant and the surrender procedures between Member States (Framework Decision 2002/584/JHA) and the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (Framework Decision 2008/909/JHA), provides: Article 2 Amendments to Framework Decision 2002/584/JHA “Framework Decision 2002/584/JHA is hereby amended as follows: 1.     the following Article shall be inserted: ‘Article 4a Decisions rendered following a trial at which the person did not appear in person 1.     The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with