CASE OF ŠKARO v. CROATIA
No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses)
Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1979 and lives in Šibenik. 6. On an unspecified date an investigation was opened in respect of the applicant and four other persons, A.B., D.D., G.A. and E.R., in connection with the killing in Split of S.I.T.J, a British national. During the investigation A.B. gave oral evidence twice. 7. On 28 May 1997 the applicant was indicted before the Split County Court on charges of murder, while A.B., D.D., G.A. and E.R. were charged under the same indictment with participating in a fight which resulted in the death of one person. During the proceedings before the trial court A.B. did not testify and the oral evidence he had given during the investigation was read out. The applicant denied the veracity of his evidence. 8. On 19 July 2000 the Split County Court, composed of a panel of two professional judges and three lay judges, acquitted the applicant and found the other accused guilty as charged. Upon an appeal by the Split County State Attorney’s Office, on 5 December 2002 the Supreme Court quashed the judgment in respect of the applicant and dismissed the charges against the other accused on account of the statutory prescription period. The Supreme Court also ordered that fresh proceedings against the applicant be conducted by a trial panel composed of different judges. 9. In the fresh proceedings a panel of two different professional judges and three different lay judges of the Split County Court heard evidence from A.B. in the presence of the applicant and his defence lawyer on 18 February 2004. However, since one of the lay judges changed during the proceedings, the trial had to start afresh. At a hearing held on 10 July 2007 the applicant agreed that A.B.’s statement could be read out and on the same day the Split County Court again acquitted the applicant. That judgment was also quashed by the Supreme Court, on 22 January 2008, which again ordered a fresh trial with different judges. 10. A third round of proceedings was held before a panel of two different professional judges (I.R. and Ar.B.) and three different lay judges (B.S., G.M. and S.B.) of the Split County Court. At a hearing held on 23 February 2010 A.B. gave oral evidence in the presence of the applicant and his defence counsel. On 24 March 2010 Judge Ar.B. was replaced by Judge M.Š. and the lay judge B.S. was replaced by another lay judge, J.B. At a hearing held on 8 July 2010 that panel heard evidence from A.B., in the presence of the applicant and his defence counsel. On 17 February 2011 Judge M.Š. was replaced by Judge M.M. and the trial had to start afresh. During the renewed proceedings the trial panel heard evidence from various witnesses, save for the witness A.B. whose prior statement was read out at a hearing held on 7 June 2011 because he was in a psychiatric institution. A.B. was the only witness who said that he had seen the applicant attacking the victim. A request by the applicant for the trial panel to hear the witness in person was denied on the grounds that the witness was undergoing treatment for alcoholism in a psychiatric institution and that any absence from the institution would have a negative effect on his treatment. 11. On 16 June 2011 the Split County Court found the applicant guilty of murder and sentenced him to eleven months’ imprisonment, suspended for five years. 12. In an appeal of 5 August 2011, the applicant, inter alia, challenged the veracity of the evidence given by A.B. and objected to the trial court’s decision not to hear evidence from that witness in person. The applicant countered the reason given by the trial court for not requesting A.B. to come to the hearing by submitting that the witness’s psychiatric treatment was scheduled to be completed in about two months and that such a delay would not affect the applicant’s trial. 13. On 27 March 2012 the Supreme Court upheld the judgment of 16 June 2011. The relevant part of the Supreme Court’s judgment reads: “The accused is not right in [alleging] that the first-instance court committed a serious breach of the rules of criminal procedure when it, without the [defence’s] consent, read out the statements of witnesses A.B. and G.A. The [first-instance] court was correct in deciding to read out the statement of witness A.B. (page 967 of the case file), who was questioned several times in these criminal proceedings, because a letter from the Rab Psychiatric Hospital shows that he was undergoing medical treatment, namely that ‘... the medical treatment is ongoing and possible absence would not contribute to the overall therapeutic procedure ...’ (page 965 of the case file).” 14. A subsequent constitutional complaint by the applicant was dismissed by the Constitutional Court on 12 July 2012.