CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 9 avril 2021

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CROATIA (Application no. 30373/13 )         JUDGMENT ( Striking out ) Art 37 • Striking out applications • Applicant’s death in the course of the proceedings • Continued examination not justified • Wish of the late applicant’s closest family members not to pursue the application • Respect for human rights not requiring examination to be continued   STRASBOURG 9 April 2021   This judgment is final but it may be subject to editorial revision. In the case of Mraović v. Croatia, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Robert Spano, President,   Jon Fridrik Kjølbro,   Ksenija Turković,   Paul Lemmens,   Síofra O’Leary,   Yonko Grozev,   Dmitry Dedov,   Georges Ravarani,   Georgios A. Serghides,   Marko Bošnjak,   Péter Paczolay,   María Elósegui,   Erik Wennerström,   Saadet Yüksel,   Lorraine Schembri Orland,   Peeter Roosma,   Ana Maria Guerra Martins, judges, and Søren Prebensen, Deputy Grand Chamber Registrar, Having deliberated in private on 1 April 2021, Delivers the following judgment, which was adopted on that date: PROCEDURE AND FACTS 1.     The case originated in an application (no. 30373/13) 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 Josip Mraović (“the applicant”), on 10 April 2013. 2.     The applicant was represented by Ms V. Drenški Lasan, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š.   Stažnik. 3.     The applicant alleged, in particular, that his right to a public hearing had been violated contrary to Article 6 § 1 of the Convention. 4.     The application was allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). On 14 May 2020 a Chamber of the same Section, composed of the following judges: Krzysztof Wojtyczek, President, Ksenija Turković, Armen Harutyunyan, Pere Pastor Vilanova, Pauliine Koskelo, Jovan Ilievski, Raffaele Sabato, and also of Abel   Campos, Section Registrar, delivered a judgment in which it held by six votes to one that there had been no violation of Article 6 § 1 of the Convention. The dissenting opinion of Judge Koskelo was appended to the judgment. 5.     In a letter of 16 June 2020, the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73. The panel of the Grand Chamber granted that request on 12   October 2020. 6.     The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 2 and 3 of the Convention and Rule 24. 7 .     On 9 November 2020 the applicant died. On 11 November 2020 the Government informed the Court of this event. They submitted that there was no need to continue the examination of the case and invited the Court to strike the application out of its list of cases, a proposal reiterated in their observations of 1 December 2020. On 8   December 2020 the applicant’s lawyer informed the Court of the wish of his heirs not to pursue his application before the Court. On 15 December 2020 the Government again invited the Court to strike the case out. THE FACTS The background and the domestic proceedings 8.     The applicant was born in 1948 and lived in Gospić. 9.     On 30 June 2005 the applicant was indicted in the Gospić County Court ( Županijski sud u Gospiću ) on a charge of rape of I.J., a foreign basketball player with the local basketball club. 10 .     The proceedings before the Gospić County Court were closed to the public at the applicant’s request, in order to protect the private life of both the applicant and the victim. 11.     On 1 December 2005 the Gospić County Court acquitted the applicant.   That judgment was quashed on appeal by the Supreme Court ( Vrhovni sud Republike Hrvatske ) in a sitting that was closed to the public at the request of the applicant, with a view to protecting the private and family lives of the accused and the victim in accordance with Article 293(4) of the Code of Criminal Procedure. 12.     At the first retrial hearing held on 13 September 2007, the applicant requested that the proceedings be conducted in open court. He argued that representatives of the Organisation for Security and Co-Operation in Europe (OSCE) had already attended the sitting before the Supreme Court, and that the victim had given numerous statements to the media concerning the case. He stressed that during the proceedings he had been “continuously stigmatised by the media due to the exclusion of the public” from his case and by “the inability of the media to transmit the real and objective state of the presented evidence”. The State Attorney disagreed with the applicant’s request, stressing that reasons for excluding the public persisted. 13 .     On the same date, the trial court dismissed the applicant’s request for the proceedings to be heard in open court. 14 .     At the next hearing held on 3 December 2007, the applicant reiterated his request for the proceedings to be heard in open court. He pointed out that, in the meantime, I.J. had given four interviews to the media in which she had provided various details about her private life and the incident at issue. The State Attorney disagreed with the applicant’s request, stressing that reasons for exclusion of the public persisted. In particular, he maintained that during the cross-examination of the victim she might be asked to reply to very intimate questions, providing details not revealed in her interviews. 15 .     The trial court again dismissed the applicant’s request as ill-founded. 16 .     On 7 February 2008 the Rijeka County Court found the applicant guilty of rape and sentenced him to three years’ imprisonment. The judgment was pronounced in public and was covered by three television channels. 17.     The applicant appealed against the first-instance judgment before the Supreme Court, claiming, inter alia , that the proceedings had been unjustifiably closed to the public. 18 .     Following a hearing, which was closed to the public, on 8 June 2009 the Supreme Court dismissed the applicant’s appeal and upheld his conviction, while reducing his sentence to two years’ imprisonment. As regards the closed nature of the proceedings against him, the Supreme Court held that the public had been excluded from the main hearing with the aim of protecting the victim’s private life in accordance with the law. 19.     The applicant then challenged these findings before the Constitutional Court ( Ustavni sud Republike Hrvatske ). In a decision of 8   November 2012, served on the applicant on 22 November 2012, the Constitutional Court dismissed his constitutional complaint as ill ‑ founded, finding no breach of his constitutional rights. RELEVANT LEGAL FRAMEWORK Relevant domestic law 20 .     The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette nos. 110/97 with subsequent amendments), as in force at the material time, read as follows: Public nature of the main hearing Article 292 “1.     The main hearing shall be held in open court ...” Article 293 “From the start until the conclusion of the main hearing, the panel may at any time, of its own motion or following an application by the parties, but always after hearing their statements on the matter, exclude the public from the entire main hearing or a   part thereof, if this is necessary for ... ... 4.     the protection of the personal or family life of the defendant, the injured person or of another participant in the proceedings ...” Article 294 “1.     Exclusion of the public does not relate to the parties, the injured person, their representatives or defence counsel.” Article 295 “1.     The panel shall decide on the exclusion of the public by a reasoned and publicly pronounced decision. 2.     An appeal against the decision referred to in paragraph 1 of this Article does not stay its enforcement.” THE LAW Request for the application to be struck out of the list 21.     In view of the Government’s request and of the wish expressed by the late applicant’s family (see paragraph 7 above), the Court must consider whether to strike the application out of its list of cases. 22.     Article 37 § 1 of the Convention provides: “The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (a)     the applicant does not intend to pursue his application; or (b)     the matter has been resolved; or (c)     for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” 23.     The Court notes that in a number of cases in which an applicant died in the course of the proceedings it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings (see López Ribalda and Others v. Spain [GC], nos.   1874/13 and 8567/13, §§ 71-73, 17 October 2019), or the existence of a legitimate interest claimed by a person wishing to pursue the application (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR   2000-XII). 24.     On the other hand, it has been the Court’s practice to strike applications out of the list of cases in the absence of any heir or close relative who has expressed the wish to pursue an application (see Léger v.   France (striking out) [GC], no. 19324/02, § 44, 30 March 2009, and the authorities cited therein; Gładkowski v. Poland (striking out), no.   29697/96, §§ 10-13, 14 March 2000; Borovská v. Slovakia (revision), no. 48554/10, §§   8-10, 16 February 2016). 25.     This is the situation in the present case, the late applicant’s closest family members having expressed their wish not to pursue the application with the Court (see paragraph 7 above). In the light of the foregoing, in accordance with Article   37 §   1(c) of the Convention, the Court considers that it is no longer justified to continue the examination of the application. 26.     As to the further question whether there are special circumstances regarding respect for human rights, as defined in the Convention and the Protocols thereto, which require the continued examination of the application in accordance with Article 37 § 1 in fine , it may be reiterated that in previous cases the Court has, inter alia , had regard to whether the case raises important issues providing it with an opportunity to elucidate, safeguard and develop the standards of protection under the Convention or whether the impact of the case goes beyond the particular situation of the applicant (see Berlusconi v. Italy [GC], no. 58428/13, § 68, 27 November 2018, with further references), including whether the relevant legislation has changed in the meantime (see, for example, Léger , cited above, § 51; and Scherer v. Switzerland , 25 March 1994, § 32, Series A no. 287). 27.     In the present case, it was not the content of the relevant legislation as such but the manner in which it was applied in the applicant’s case which gave rise to his complaints under the Convention. In view of this, and having regard, in particular, to the applicant’s heirs’ unequivocal wish not to pursue his application, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. 28.     Accordingly, the application should be struck out of the list of cases. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to strike the application out of its list of cases. Done in English and in French, and notified in writing on 9 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Søren Prebensen   Robert Spano Deputy to the Registrar   President