CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 10 décembre 2020

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CROATIA (Application no. 35375/15)             JUDGMENT   STRASBOURG 10 December 2020   This judgment is final but it may be subject to editorial revision. In the case of Zelić v. Croatia, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Alena Poláčková, President,   Péter Paczolay,   Gilberto Felici, judges, and Renata Degener, Deputy Section Registrar, Having regard to: the application (no.   35375/15) 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 Marino Zelić (“the applicant”), on 16 July 2015; the decision to give notice to the Croatian Government (“the Government”) of the complaint concerning the applicant’s inability to examine witnesses in criminal proceedings against him, and declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 17 November 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns minor-offence proceedings in which the applicant was found guilty of charges of domestic violence on the basis of statements by two witnesses who had been heard in the absence of both the prosecution and the defence. THE FACTS 2.     The applicant was born in 1987 and lives in Zadar. He was represented by Mr I. Stanić, a lawyer practising in Zadar. 3.     The Government were represented by their Agent, Ms Š. Stažnik. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5 .     On 4 November 2010 the Zadar Police Department lodged a request with the Zadar Minor Offences Court ( Prekršajni sud u Zadru) for minor-offence proceedings to be instituted against the applicant, alleging that on 1   November 2010 he had verbally and physically attacked his aunt, S.K. The police submitted two reports signed by police officers, Officers C.J., Z.M., I.M. and M.B., which contained notes on interviews with the applicant, his father M.Z. and the injured party, S.K. 6.     At a hearing held on 8 February 2011, the applicant gave his statement in the presence of his lawyer. He denied that he had insulted or physically attacked S.K. on the day when she had come to visit his father. 7.     At the next hearing, held on 23 February 2011, the witness P.B. was questioned. She testified in favour of the applicant and confirmed his version of events. 8 .     On 25 February 2011 Officer Z.M. appeared at the trial court and was questioned outside the main hearing in the absence of both the defence and the prosecution. He stated that he had no immediate knowledge of the incident and that he had arrived at the applicant’s family house in response to a domestic violence report. He stated that he had conducted investigative interviews with the applicant and S.K. At the next hearing, held on 16 March 2011, Z.M.’s statement was read out and the applicant’s lawyer raised no objections to it. 9 .     The next twelve hearings were adjourned because summonses were not properly served on S.K., who had to be heard as a witness. 10 .     At the hearing held on 3 July 2012, S.K. gave her testimony before the trial court, in the presence of the applicant’s lawyer. She stated that the applicant had verbally insulted and physically attacked her. She answered questions put to her by the applicant’s lawyer. 11.     On the next day the trial court gave a judgment acquitting the applicant. 12.     Following an appeal by the police, on 20 March 2013 the High Minor Offences Court ( Visoki prekršajni sud ) quashed the judgment and ordered the trial court to question M.Z., S.K., P.B. and the police officers who had arrived at the scene on the occasion in question. 13.     In the resumed proceedings, on 1 August 2013, the applicant reiterated his defence and submitted medical documentation in respect of M.Z. which showed that he could not testify due to advanced dementia. 14.     At the hearing held on 26 August 2013, Officer I.M. was questioned in the presence of the applicant’s lawyer. He had no recollection of the incident, which had taken place three years earlier. 15 .     On 24 September 2013 P.B. was questioned in the presence of the applicant’s lawyer. She stated that the applicant had been her boyfriend at the material time, and confirmed his account of events. 16 .     On 7 October 2013 Officer C.J. was questioned in the presence of the applicant’s lawyer. He stated that he could not remember the event in question. 17 .     On 10 October 2013 Officer Z.M. appeared before the court of his own motion and the trial judge decided to question him outside the main hearing, in the absence of both the prosecution and the defence. Z.M. stated that on the day in question he had arrived at the applicant’s family house, where he had found that the applicant had been preventing S.K. from entering the house. He further stated that S.K. had been distressed and had told him that the applicant had verbally attacked her, but she had had no visible injuries. Z.M. was then summoned to the next hearing scheduled for 17   October 2013, but he failed to appear, despite the summons being properly served. The trial judge adjourned the hearing, stating that Z.M. had already been questioned outside the main hearing. 18 .     At the next hearing, held on 4 November 2013, Officer M.B. was questioned in the presence of the applicant’s lawyer. She stated that on the day in question she and Officer I.M. had interviewed S.K., who stated that the applicant had physically attacked her. Officer M.B. stated that she had seen red marks on the right side of S.K.’s face and that S.K. had been distressed throughout the interview. In reply to a question put to her by the applicant’s lawyer, M.B. stated that she remembered the event because she had consulted her interview notes beforehand. She also confirmed that she remembered the red marks on S.K.’s face, because it was her job to pay attention to such details, particularly if a person had sustained injuries. The applicant’s lawyer objected to M.B.’s testimony. S.K. failed to appear before the court, although she had been properly served with a summons at her address in Sweden, where she had been living. 19 .     The trial court scheduled the next hearing for 18 November 2013 and posted a summons for S.K. on the court’s noticeboard. S.K. then appeared at the court at her own initiative on 13 November 2013, and the trial judge questioned her outside the main hearing, in the absence of both the prosecution and the defence. She reiterated her statement given on 3   July 2012 (see paragraph 10 above), stating that the applicant had used insulting words, had pushed her down the stairs, and had slapped her several times on the left side of her face. 20.     At the hearing held on 2 December 2013, the trial judge read out all the witness statements. The applicant’s lawyer objected to the statements of S.K. and Z.M. being read out, because they had been given outside the main hearing, in the absence of the applicant and his lawyer, who had not been notified of the date and time when those witnesses had been questioned. He requested that those witnesses be questioned again so that the defence could have the opportunity to ask them questions and further clarify the credibility of their statements and discrepancies in their testimony. The trial judge refused that request, noting that the witnesses had already been questioned outside the main hearing. 21 .     On the same day the trial court found the applicant guilty of domestic violence and imposed on him a fine in the amount of 1,200 Croatian kunas (HRK; approximately 160 euros (EUR)). Regarding the applicant’s lawyer’s request for S.K. and Z.M. to be heard again, the relevant parts of the judgement read as follows: “... such a complaint is ill-founded ... by examining [Z.M.’s] earlier statement, the court has determined that it was not inconsistent with his new statement, because the witness Z.M. had previously stated that he had no immediate knowledge [of the event], and that was also his statement when he was questioned again, [and in that later statement] he did not present immediate knowledge of the event, but only knowledge [which he had] obtained by interviewing [the applicant] and [S.K.] ... ... the reading out of [S.K.’s] statement did not deny [the applicant] the right to question the witness, because the witness had presented all relevant circumstances in her statement and had been questioned on all relevant facts, [facts] which had been challenged during the proceedings ... questioning her again would in no way have contributed to a better assessment of the facts ... that request was aimed at unnecessarily delaying the proceedings, particularly taking into consideration the questions which the defence lawyer had asked the witness when she had first been questioned in the minor-offence proceedings.” 22 .     The applicant appealed, arguing, inter alia , that the trial court had violated his defence rights by refusing his request for Z.M. and S.K. to be questioned at the main hearing in the presence of the defence. He further pointed out the discrepancies between the crucial witness statements in his case. Namely, Z.M. had stated that he had interviewed S.K. on the day in question, but she had had no visible injuries. However, Officer M.B. had stated that she and another police officer, Officer I.M., had interviewed S.K., who had had red marks on the right side of her face. Furthermore, S.K. had stated that the applicant had slapped her several times on the left side of her face, which contradicted M.B.’s statement. 23 .     On 10 July 2014 the High Minor Offences Court dismissed the applicant’s appeal. The relevant parts of that judgment read as follows: “... the reading out of the statements which Z.M. and S.K. had given outside the main hearing ... [allowed] the defendant and his lawyer to respond to all allegations made by those witnesses ... Thus, the first-instance court acted in accordance with the Minor Offences Act and questioned all witnesses who appeared before the court outside the scheduled hearings, since the requirements for conducting the main hearing were not fulfilled ..., and it read out the transcripts of their questioning at the main hearing held on 2 December 2013. It is clear that the defendant’s right to defence was not violated, because during the proceedings in which he presented his defence (after which he did not receive most of the summonses), he had the right to participate in the proceedings and make objections to witness statements, [and] he failed to do this, therefore the first-instance court properly concluded that the adjournment of the main hearing in order to re-examine [S.K.] and witnesses who had been questioned outside the main hearing, so that [the applicant] could question them, would have no bearing on the lawfulness of the rendered judgment. ... the facts of the case were entirely determined on the basis of statements given by S.K., Z.M. and M.B., and their statements were justifiably accepted as convincing and credible. The statements of Z.M. and M.B. are not contradictory; they both gave an account of their own observations ... The fact that they gave different accounts as to who had interviewed [S.K.] is irrelevant, because they both testified as to what they had personally seen when meeting [S.K.] after the event in question, regardless of who had conducted the interview. ... when [she was] first questioned before the same court in the same case (in the presence of [the applicant]), [S.K.] gave a statement which, in respect of all the relevant facts, was identical to the one given in the resumed proceedings.” 24.     The applicant then lodged a constitutional complaint, complaining that his right to a fair trial and his defence rights had been breached. 25.     On 17 December 2014 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared the applicant’s constitutional complaint inadmissible, on the grounds that the contested decisions were not susceptible to constitutional review. RELEVANT LEGAL FRAMEWORK 26.     The relevant part of Article 29 of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette no. 56/1990, 135/1997, 113/2000, 28/2001, 76/2010 and 5/14) reads as follows: “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 the event of [a person being] suspected of a criminal offence or criminal charges [being brought], the suspect, defendant or accused shall have the right: ... - to question witnesses for the prosecution or have them questioned, and to have witnesses for the defence questioned under the same conditions as witnesses for the prosecution. ...” 27.     Section 20 of the Protection against Domestic Violence Act ( Zakon o zaštiti od nasilja u obitelji , Official Gazette no. 137/09 with subsequent amendments) provides that, where the minor offence of domestic violence has been committed against a family member, a court may impose either a fine of at least HRK 1,000 or a prison sentence of up to ninety days. 28 .     The relevant provisions of the Minor Offences Act ( Prekršajni zakon , Official Gazette no. 107/07 with subsequent amendments) read as follows: Section 85 “2.     The defendant must be given an opportunity to respond to all facts and evidence accusing him or her, and to present all facts and evidence in his or her favour.” Section 167 “3.     If properly summoned parties and other properly summoned participants in the proceedings fail to appear, the main hearing may be held and the judgment rendered. The main hearing may be held in the absence of the defendant if it is not necessary to question him or her, and if [his or her absence] has no bearing on the lawful and proper rendering of the judgment. 4.     If other summoned persons fail to appear at the main hearing, it shall be held in their absence, and if their presence is necessary, the hearing shall be adjourned and the court shall [either] summon them once again or, in the event that such requirements have been fulfilled, order that they be brought to the court. ... 6.     If the conditions for holding the main hearing in the absence of certain persons have been fulfilled, the previously presented or written defence of the defendant, witness statements, and findings and opinions by expert witnesses shall be read out. 7.     If the conditions for holding the main hearing have not been fulfilled, the judge may question, outside the main hearing, witnesses and expert witnesses who have responded to the summonses. Transcripts of their questioning shall be read out at the main hearing, when evidence is presented later.” 29 .     In its judgment no. Pž-64/2016 of 22 February 2017, the High Minor Offences Court gave the following interpretation of section 167(7) of the Minor Offences Act: “Section 167(7) of the Minor Offences Act ... clearly and undoubtedly provides that there has to be a procedural situation ‘if the conditions for holding the main hearing have not been fulfilled’, meaning that an examination of witnesses and expert witnesses outside the main hearing can take place only on the day when the main hearing is scheduled and the court finds that ‘no conditions have been fulfilled for holding the main hearing’, and not on another day when the main hearing has not even been scheduled. The transcripts of witnesses or expert witnesses who are questioned in this way shall be read out when evidence is presented at the next main hearing. In main trial proceedings, there is no legal possibility for witnesses or experts to be examined without the parties being summoned, which is what the trial court did in this case. Apparently, ... the witness N.J. had been unable to attend the main hearing scheduled for 20 October 2015 and was therefore questioned at the court on 5 November 2015, but, for the reasons stated above, the court was not allowed to do so. Accordingly, the trial court erred in the application of section 167(7) of the Minor Offences Act, which could influence the judgment.” THE LAW ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION 30.     The applicant complained that his trial had been unfair, because he had not been able to question the two prosecution witnesses, S.K. and Z.M., whose statements had constituted the basis for his conviction. He relied on Article 6 §§ 1 and 3   (d) of the Convention, which reads, in so far as relevant: “1.     In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal... ... 3.     Everyone charged with a criminal offence has the following minimum rights: ... ( d)     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...” Admissibility 31.     The Court observes that the Government did not contest the applicability of Article 6 of the Convention in the present case. It further notes that the minor offence of which the applicant was accused and convicted, according to the Engel criteria (see   Engel and Others v. the Netherlands , 8 June 1976, § 82, Series A no. 22), may be classified as “criminal” for the purposes of Article 6 of the Convention. Accordingly, Article 6 is applicable in the present case. 32.     The Court further notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions 33.     The applicant argued that he had never been informed that S.K. and Z.M. would be questioned outside of the main hearing. His defence lawyer had objected to those witness statements being read out and had requested that those witnesses be called and questioned again in the presence of the defence, but his requests had been wrongly rejected as an attempt to unnecessarily delay the proceedings, whereas the trial court had adjourned more than twenty hearings purely because of the fact that the witness S.K. had failed to appear. 34 .     The Government argued that the minor-offence proceedings against the applicant had been conducted in accordance with the requirements of Article 6 of the Convention. Witness S.K. had given a detailed first statement in the presence of the applicant’s lawyer, she resided abroad and a number of previous summonses had not been properly served on her. As regards Z.M., the trial court decided to question him outside the main hearing, in the absence of both the prosecution and the defence, and thus the principle of equality of arms had not been infringed. As a police officer, Z.M. had worked at different locations, so it had not been unusual that he had appeared before the court on a day on which the main hearing had not been scheduled. 35.     The applicant, who had had legal representation, had had the opportunity to present evidence, question witnesses and challenge their testimony. He had an opportunity to object to both S.K.’s and Z.M.’s statements after the trial judge had read them out, and in any event those statements had not been the sole or decisive evidence on which the his conviction had been based. The domestic courts had provided specific reasons for dismissing defence’s request for Z.M. and S.K. to be questioned again and the second-instance court dismissed all of the applicant’s complaints in a substantiated manner. The Court’s assessment (a)    General principles 36.     General principles regarding the admission of untested incriminating witness evidence in criminal proceedings have been summarised in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos.   26766/05 and   22228/06, ECHR 2011), and Schatschaschwili v. Germany ([GC], no.   9154/10, §§ 100-31, ECHR   2015). (b)    Application of the general principles to the present case (i)       Whether there was a good reason for not obtaining the statements of S.K. and Z.M. in the presence of the applicant and his lawyer 37.     The Court observes that Z.M. had been properly summoned to appear in person at the hearing scheduled for 17 October 2013, but instead, he gave his statement on 10 October 2013, when he spontaneously arrived at the court (see paragraph 17 above). As regards S.K., she gave her statement when she spontaneously arrived at the court on 13 November 2013, despite the fact that she had been summoned to appear at the hearing scheduled for 18 November 2013 (see paragraph 19 above). 38 .     The Court notes that neither of the two witnesses gave any explanation as to whether or why they had been prevented from attending the scheduled hearings, nor did the domestic authorities refer to any serious justification for those witnesses not testifying before the trial court (see Schatschaschwili , cited above, § 119). Moreover, it transpires from the Minor Offences Act that witnesses could be examined outside the main hearing only on the date on which the main hearing had been scheduled but for some reason could not be held (see paragraph 29 above). 39.     As regards the Government’s justification for S.K.’s absence (see paragraph 34 above), the Court has previously held that a witness’ absence from the country where proceedings are being conducted is not, in itself, sufficient to satisfy the requirements of Article 6 § 3 (d), which requires the Contracting States to take positive steps to enable an accused to examine or have examined witnesses testifying against him (see Sadak and Others v.   Turkey , nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67, ECHR   2001 ‑ VIII, and Gabrielyan v. Armenia , no. 8088/05, § 81, 10 April 2012). As regards Z.M., the Court reiterates the constraints of professional life are not, in themselves, sufficient to justify police officers’ failure to attend criminal proceedings in which they are involved in their capacity as witnesses (see Virgil Dan Vasile v. Romania , no. 35517/11, §   66 in fine , 15   May 2018). 40.     The Court thus considers that the first-instance court did not provide a good reason for failing to obtain statements from S.K. and Z.M. in the presence of the applicant and his lawyer. (ii)Whether the evidence given by S.K. and Z.M. was the sole or decisive basis for the applicant’s conviction 41.     The Court observes that the domestic court’s findings in respect of the applicant’s guilt were largely based on the statements of S.K. and Z.M. (see paragraph 21 above). The only other   corroborating evidence against the applicant was the statement by Officer M.B. However, that witness had been questioned only after the case had been remitted for a re-trial, with an express instruction by the second-instance court to re-examine S.K. and other relevant witnesses in the case (see paragraph 42 above). 43.     In this connection, the Court notes that M.B.’s statement contained important discrepancies when compared to those of S.K. and Z.M., as was pointed out by the applicant in his appeal (see paragraph 22 above). In particular, the three witnesses gave different accounts as to whether Z.M. had actually seen or talked to S.K. on the day in question and whether S.K. had had any visible injuries (see paragraphs 17 and 18 above), as well as whether those injuries had been on the right or left side of her face (see paragraphs 18 and 19 above). Such inconsistencies necessarily cast doubt on all three witness statements and, in the Court’s view, merited further clarification. 44.     Bearing in mind that there was no other incriminating evidence to support S.K.’s and Z.M.’s testimony, other than M.B.’s statement, with which they were not fully in agreement, the Court concludes that their statements incriminating the applicant constituted, if not the sole evidence against him, then the decisive evidence at least (see Al-Khawaja and Tahery , cited above, § 160, and Ürek and Ürek v. Turkey , no.   74845/12, §§   58-59, 30 July 2019). (iii)Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured 45.     The Court notes that in the domestic courts’ decisions there is no indication that they approached the statements of S.K. and Z.M. with any specific caution, or that the fact that the witnesses were heard in the absence of the defence prompted the national courts to attach less weight to their statements (compare, for instance, Al-Khawaja and Tahery , cited above, §   157, and Bobeş v. Romania , no. 29752/05, § 46, 9 July 2013). On the contrary, the courts accepted the untested evidence as credible and refused to allow the witnesses to be questioned again in the presence of the defence, arguing that they had been questioned by the trial judge about all the relevant circumstances, and that in any event the applicant’s lawyer had had the opportunity to question S.K. when she had first given evidence. 46.     The Court further observes that S.K.’s and Z.M.’s untested evidence weighed heavily in the balance and required sufficient counterbalancing factors to compensate for the consequential difficulties caused to the defence by its admission (see Al-Khawaja and Tahery , cited above, §   161). 47.     In that connection, the Court observes that the Zadar Minor Offences Court, without attempting to contact the applicant or his lawyer, decided to question S.K. and Z.M. when they appeared before that court of their own motion, on days on which the main hearing had not been scheduled to take place, which was contrary to section 167(7) of the Minor Offences Act (see paragraphs 28 and 38 above). 48.     The Court cannot accept the Government’s argument that the foregoing did not result in a breach of the principle of equality of arms, since the trial court questioned the witnesses in the absence of both the prosecution and the defence. The mere fact that neither the defence nor the prosecution was present during the questioning of the crucial witnesses cannot constitute an excuse for disregarding the applicant’s right to confront and cross-examine witnesses whose statements were of decisive importance for his conviction. Moreover, the police, as the prosecutor in the applicant’s case, had already had the opportunity to question S.K. and Z.M. during the pre-trial stage of the proceedings (see paragraph 5 above). 49. The Court further observes that the applicant had the opportunity to give his own version of the events during the trial, and that he availed himself of that opportunity. However, that fact alone could not in any event be regarded as a sufficient counterbalancing factor to compensate for the handicap under which the defence laboured (see Paić v. Croatia , no.   47082/12, § 51, 29 March 2016). 50.     For the above reasons, the Court considers that the counterbalancing measures taken, if any, were insufficient to permit a fair and proper assessment of the reliability of the untested evidence in the applicant’s case. (ii)     Conclusion 51.     In the light of the foregoing, and examining the fairness of the proceedings as a whole, the Court notes that the trial court heard untested statements from S.K. and Z.M. contrary to the relevant legal provisions, and that there is no indication that the two witnesses were prevented from appearing before the court at the scheduled hearing or giving their evidence in the presence of the applicant or his lawyer. The trial court did not sufficiently consider the applicant’s arguments regarding the existing discrepancies between the testimony of those two witnesses and the only other corroborating testimony. In that sense, the applicant was unable to test the truthfulness and reliability of the evidence of S.K. and Z.M. by means of cross-examination, despite the fact that it was the decisive evidence against him (see Al-Khawaja and Tahery , cited above, §§ 162 and 165). Consequently, he was convicted on the basis of evidence in respect of which his defence rights had been appreciably restricted. 52.     The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 53.     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.” 54.     The applicant   did not submit any claim for just satisfaction as required under Rule 60 of the Rules of Court. In the circumstances of the present case, the Court considers that there is no exceptional situation, within the meaning of its case-law (see Nagmetov v. Russia   [GC], no.   35589/08, §§ 61 and 78-82, 30 March 2017), that would warrant making an award of just satisfaction. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention of the Convention. Done in English, and notified in writing on 10 December 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Renata Degener   Alena Poláčková Deputy Registrar   President