CASE OF LUČIĆ v. CROATIA
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 - Examination of witnesses)
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1970 and lives in Zagreb. 6. On 3 May 1999, at around 8.00 p.m., J.N. lodged a criminal complaint with the Zagreb Police Department (Policijska uprava Zagrebačka – “the police”) alleging that during the previous night the applicant had raped her. He had offered to drive her home from bar A., where she worked, but had then driven into the nearby woods and raped her in his car. She had then asked him to drive her to a night-club, “S.”, where he had dropped her off and left. 7. The applicant was arrested on the same evening and J.N. identified him as her rapist. 8. During the night of 4 May 1999 J.N. was examined by a doctor who found no injuries on her body or genitals. The applicant was also taken to a doctor and the doctor found abrasions on his right upper arm and elbow and his right knee. 9. On 4 May 1999 the applicant was questioned by an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu). He admitted to having had sexual intercourse with J.N. in his car but argued that it had been consensual. He contended that the abrasions on his right arm and leg were the result of friction during the intercourse. After the questioning the applicant was released. 10. On 31 May and 17 June 1999 J.N.’s lawyer asked the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) to request the investigating judge to have the applicant detained on the grounds that he had been trying to contact J.N., threatening her in order to make her withdraw her criminal complaint. She also argued that J.N. had sought psychiatric help and submitted medical reports in that connection. 11. On 18 June 1999 the Zagreb County State Attorney’s Office asked the investigating judge of the Zagreb County Court to open an investigation in respect of the applicant on charges of rape and to order his detention on the basis of the information submitted by J.N. 12. The investigating judge opened the investigation on 6 July 1999 but refused to order the applicant’s detention on the grounds that there was no reliable evidence suggesting that he might influence the witness or reoffend. 13. On 9 July 1999 J.N., in the presence of her lawyer, gave oral evidence at a hearing before the investigating judge. The applicant and his defence lawyer were not informed of the hearing and were not present during the questioning. 14. During the questioning, J.N. reiterated her previous allegation that the applicant had raped her. 15. On 13 July 1999 the Zagreb County State Attorney’s Office lodged an appeal with a three-judge panel of the Zagreb County Court against the investigating judge’s decision refusing the request for the applicant’s detention. 16. The three-judge panel granted the application and on 16 July 1999 ordered the investigating judge to re-examine the request for detention. 17. On 27 August 1999 the investigating judge again dismissed the request for the applicant’s detention on the grounds that there were no relevant reasons for his remand in custody. The Zagreb County State Attorney’s Office appealed, but on 2 September 1999 a three-judge panel upheld that decision. 18. In the course of the investigation the investigating judge heard several witnesses and commissioned medical reports. 19. On 24 September 1999 S.S., a colleague of J.N., testified before the investigating judge that she had been working with J.N. in bar A. on the day in issue and that when J.N. had wanted to go home, S.S. had asked the applicant to give her a lift. The next day, J.N. had told her that she had been raped by the applicant. S.S. had also seen the applicant later, and he had denied the rape accusation, stating that J.N. had had sex with him voluntarily. S.S. also stressed that she knew the applicant well and she had never heard of him attacking girls or doing anything of that kind. 20. An expert medical report of 10 November 1999 found that the reports on J.N.’s gynaecological and psychiatric examination showed no objective evidence of any injuries. 21. On 14 February 2000 the investigating judge heard evidence from K.N., who stated that on the night in issue he had been working as a musician in the night-club “S.” when J.N. had come in. She had bought a drink for the musicians and then he had taken her home. There had been nothing unusual about her; she had appeared normal and had not made any mention of rape. 22. Another witness, J.M., was questioned on 28 March 2000. She stated that on the morning after the event J.N. had come to a bar where she worked and told her that she had been raped the evening before. She had been very distressed and frightened. J.M. had told her to report the rape to a policeman who had been in a nearby bar. 23. A forensic report of 23 November 2000 found biological traces from J.N. on the applicant’s underwear. 24. An expert medical report of 7 February 2001 found that the abrasions on the applicant’s right upper arm could have resulted from finger nail scratches, while the injuries on his elbow and right knee could have been the result of a fall or friction. 25. On 19 February 2001 the Zagreb County State Attorney’s Office indicted the applicant in the Zagreb County Court on charges of rape. 26. At a hearing on 19 March 2003 the applicant pleaded not guilty. J.N., although properly summoned, failed to appear. 27. On 29 April 2003 the Zagreb County Court instructed the police to take J.N. to the hearing, scheduled for 2 June 2003. 28. On 27 May 2003 J.N., through her lawyer, informed the Zagreb County Court that she was living abroad and asked that the hearing be postponed until September 2003 when she would be in Croatia. The Zagreb County Court agreed to her request and scheduled a hearing for 22 September 2003. 29. At the hearing on 22 September 2003 J.N., although properly summoned, again failed to appear. Her lawyer, present at the hearing, informed the trial court that meanwhile she had not had any contact with J.N. 30. On 1 October 2003 the Zagreb County Court again ordered the police to take J.N. to a hearing scheduled for 4 November 2003. 31. However, that hearing was again adjourned because the police were unable to locate J.N. The only information available was that she had been living in Spain for the last four years. 32. On 19 December 2003 J.N.’s lawyer informed the trial court that she was no longer representing J.N. 33. On 19 March 2004 the Zagreb County Court requested the police to establish J.N.’s exact address, and the police informed it that the only information available was that she was living in Spain. 34. After several adjourned hearings, on 24 May 2005 a hearing was held at which the applicant pleaded not guilty. The Deputy State Attorney asked the trial court to admit in evidence the written record of J.N.’s oral statement given to the investigating judge. The defence opposed that request, arguing that given the gravity of charges against the applicant it was necessary to question J.N. at the hearing. The defence also stressed that she was a Croatian citizen and that her whereabouts in Spain could be established through the relevant police records and the appropriate diplomatic channels. 35. On 19 July 2005 the police informed the Zagreb County Court that from an interview with J.N.’s mother they had learned that J.N. was living in Madrid, Spain, and that she would be in Croatia for only a couple of days during the summer. 36. At a hearing on 20 October 2005 the trial court heard evidence from the witness K.N., who reiterated his statement given to the investigating judge (see paragraph 21 above). The Deputy State Attorney again requested the trial court to admit in evidence the record of J.N.’s oral statement to the investigating judge. The defence insisted that she should be questioned and provided an address in the Netherlands where she allegedly resided. 37. On 21 October 2005 the Zagreb County Court requested that J.N. be summoned to a hearing by means of international legal assistance in criminal matters through the authorities in the Netherlands. 38. On 24 February 2006 the Zagreb County Court was informed that the authorities in the Netherlands had not been able to serve the court summons on J.N. 39. At a hearing on 10 April 2006 the trial court heard evidence from the witness S.S., who reiterated her previous statement (see paragraph 19 above). The Deputy State Attorney requested that the record of J.N.’s oral evidence to the investigating judge, as well as the records of the statements of the witness J.M., who had never appeared before the trial court, and the witness K.N., be admitted in evidence without their questioning at the hearing. The defence agreed with regard to admitting the written statements of the other witnesses but insisted on that J.N. should be questioned at the hearing. The trial court agreed to the prosecution’s request and admitted the written record of J.N.’s oral evidence given before the investigating judge as evidence. 40. On the same day, the Zagreb County Court found the applicant guilty on the charges of rape and sentenced him to one year’s imprisonment. 41. On 7 June 2006 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against the first-instance judgment, complaining that the Zagreb County Court had failed to secure the presence and examination of J.N. at the trial. 42. On 13 December 2007 the Supreme Court quashed the first-instance judgment and ordered a retrial. The Supreme Court found that the Zagreb County Court had failed to take all reasonable steps to secure the presence of J.N. at the trial even though her evidence was decisive for the case. 43. During the retrial, on 27 February 2008 the Zagreb County Court requested that J.N.’s whereabouts in Spain be established through contacting the Spanish national authorities by means of international legal assistance in criminal matters. 44. On 21 April 2008 the police informed the Zagreb County Court that they had obtained J.N.’s address in Spain from her parents, and the trial court summoned J.N. from that address. 45. On 25 September 2008 the Zagreb County Court received information from the Spanish authorities in respect of J.N.’s exact address and telephone number in Spain. 46. A hearing scheduled for 29 October 2008 was adjourned because J.N. failed to appear. There was, at the time, no information on whether she had received the court summons. 47. Another hearing was held on 18 December 2008 at which the trial court found that J.N. had been properly summoned both to that hearing and to the hearing of 29 October 2008. 48. At the hearing the applicant pleaded not guilty to the charges of rape and the trial court again questioned the witness K.N., who reiterated his previous statements. The Deputy State Attorney asked for all the witness statements to be admitted in evidence without the questioning of the witnesses. The defence agreed to this save for the evidence of J.N., insisting that she should be cross-examined at the trial and pointing out that the defence had been denied the opportunity to question her when she had given her statement to the investigating judge. The trial court accepted the Deputy State Attorney’s proposal and admitted the written record of J.N.’s oral statement to the investigating judge as evidence. However, it adjourned the hearing in order to question another witness on behalf of the defence, I.P. 49. At a hearing held on 21 January 2009 the Zagreb County Court noted that I.P. had died and concluded the trial. On the same day it found the applicant guilty of the charges of rape and sentenced him to one year’s imprisonment. The trial court relied on the statement given by J.N. and held that it had been corroborated with other evidence. In particular, it noted: “It follows from the statements given by witnesses S.S. and [J.M.], and the evidence provided by the forensic expert and other medical evidence concerning the victim, that the relevant (so-called control) facts, important for the assessment of contradictory statements of the accused and the victim, support the statement given by the victim.” 50. On 16 February 2009 the applicant lodged an appeal with the Supreme Court complaining that the first-instance court had failed to take all reasonable steps to secure the presence of J.N. at the trial and that her evidence had been crucial for his case. 51. On 5 May 2009 the Supreme Court dismissed the applicant’s appeal and upheld the first-instance judgment. The relevant part of the Supreme Court’s judgment reads: “As can be seen from the case file, after the investigation had been opened on 15 June 1999 ... the victim J.N. was questioned as a witness on 9 July 1999 ... The accused had been legally represented ever since 4 May 1999 ... and the defence counsel did not ask to be present during the questioning of this witness, within the meaning of Article 198 § 4 of the Code of Criminal Procedure, nor did any circumstances at the time suggest that she might be absent from the hearing. Following the investigation, and after the accused had been indicted [in the Zagreb County Court], the victim’s representative informed the court that ‘... the victim is at the moment working abroad and therefore she is unable to appear at the trial, so she has asked if the hearing can be adjourned until September 2003, when she will be in Croatia ...’ ... The victim failed to appear at the hearing of 22 September 2003, although she had been properly summoned ... After that, on 24 November 2003, the Sesvete Police Station informed the court that the they had learned from the victim’s father that she ‘[had] been living in Spain for about four years and he [didn’t] know when she [would] return.’ ... On 1 July 2004 the court was again informed that she ‘... work[ed] in Spain’ ... Following the Sesvete Police Station’s further investigations into J.N.’s whereabouts, on 15 July 2005 the court was informed that she lived in Madrid, Spain, ‘with her husband’ ... However, after her exact address in Spain had been established, as this court had requested in its earlier decision, the court summoned the victim twice to a hearing ... Although she was properly summoned, she failed to appear and did not give any reason for her absence. Thus, the victim J.N. was questioned during the investigation as required by law, after which it appears she did not want to appear at the hearing, although she did not give reasons for her absence. Since she lived abroad the trial court had no way of securing her presence at the hearing and therefore it rightly decided, under Article 331 § 1(1) of the Code of Criminal Procedure, to read out the written record of her oral statement.” 52. On 21 July 2009 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), reiterating his previous complaints. 53. On 7 July 2010 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. The decision of the Constitutional Court was served on the applicant’s representative on 19 July 2010.