CASE OF PAIĆ v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-d - Examination of witnesses);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1974 and lives in Šibenik. 6. On 26 August 2005 the Šibenik Municipal State Attorney’s Office opened an investigation against the applicant on suspicion of the theft of a mobile telephone from E.R., who had come to Croatia as a tourist from the Czech Republic. 7. On 20 September 2005 an investigating judge of the Šibenik County Court heard the applicant, who denied the charges against him. He explained that on the occasion in question some children from a house in Betina had thrown water-filled balloons at him. He had approached the house the children had come from and had knocked at the door, but no one had answered. He had then walked away. When he was back at home, two young women had come to ask for the mobile telephone belonging to one of them, but he told them he had not taken it. 8. In response to a request for international legal assistance from the Croatian prosecuting authorities, on 9 June 2006 the Chomutovo County Court in the Czech Republic heard evidence from E.R. She said that on 12 July 2005 in Betina, Croatia, her children had thrown water-filled balloons at the applicant. He had then approached the house they were staying in and through a window she had seen him steal her mobile telephone from a table on the terrace of that house. Together with her step-daughter she had followed the applicant to his house and asked him to return her telephone. However, he had denied taking it. 9. On 9 November 2006 the Šibenik Municipal State Attorney’s Office indicted the applicant in the Šibenik Municipal Court (Općinski sud u Šibeniku) on the charge of stealing a mobile telephone from E.R. 10. During his trial before the Šibenik Municipal Court the applicant gave oral evidence on 18 May 2010. He reiterated the statement he had given before the investigating judge. Throughout these proceedings the applicant challenged the allegation against him, contending that, although there had been a dispute between him and E.R. over the behaviour of her children, he had not stolen her mobile telephone. The applicant’s account was confirmed in essence by his former wife, who was also questioned as a witness during the proceedings. 11. At a hearing held on 27 October 2010 the Šibenik Municipal Court decided to admit the record of E.R.’s questioning as evidence without examining her directly. The applicant objected to the reading out of E.R.’s statement. 12. On 28 October 2010 the Šibenik Municipal Court found the applicant guilty as charged and sentenced him to four months’ imprisonment suspended for one year. The finding of the applicant’s guilt was based solely on the evidence given by E.R. The trial court held that it was clear that the applicant had been the person who had approached the house where E.R. and her family were staying. The evidence given by E.R. conclusively showed that the applicant had committed the offence at issue and that E.R. had no reason “to blame the accused without basis”. The relevant part of the first-instance judgment reads: “Under Article 331 § 1(12) of the Code of Criminal Procedure this court read out the statement given by E.R. before the Chomutovo County Court, the Czech Republic, on 9 June 2009 without the parties’ consent because there were sound reasons for doing so, namely that the victim gave her evidence more than four years ago and this court considers that, owing to the passage of time, it would not learn any new facts or circumstances relevant for assessing the circumstances of the event [at issue], and was also mindful of the fact that the [charges against the accused] will become time-barred in July 2011 and ... summoning the victim would protract the criminal proceedings unnecessarily. ... ... considering the evidence given by witness and victim E.R. as being credible and truthful, this court has established the criminal responsibility of the accused because it has not found in the victim’s statement any reason for which she would blame the accused without basis. ...” 13. In his appeal of 28 January 2011 the applicant argued, inter alia, that E.R. had never been summoned to a hearing during his trial before the Šibenik Municipal Court and that he had had no opportunity to question her. He also argued that E.R.’s mobile telephone had not been found in his possession. On 3 March 2011 the Šibenik County Court (Županijski sud u Šibeniku) dismissed the applicant’s appeal as ill-founded, upholding the first-instance judgment. The relevant part of the appeal judgment reads as follows: “In the reasoning of its judgment, the [first-instance] court stated the reasons why it had decided ... to read out the statement of the witness-victim E.R., stating that the victim had given her evidence more than four years previously, at which time her recollection of the event [at issue] would have been fresher than later, that the prosecution would become time-barred in July 2011 and since [the victim] was a foreign citizen ... summoning her [to a hearing] would protract the criminal proceedings unnecessarily. ... This decision of the first-instance court did not violate the defence rights of the accused ... ... ... it should also be said that the mobile telephone could not have been found in the accused’s possession because nobody looked for it. The documents in the case-file show that the accused’s home was not searched, which was a mistake on the part of the police. However, even without it, the [first-instance] court undoubtedly established that the accused had stolen the mobile telephone from the victim ...” ... ” 14. On 13 May 2011 the applicant lodged a complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that he had not had a fair trial as he had not been given an opportunity to question E.R. 15. On 8 December 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. This decision was served on the applicant’s counsel on 12 January 2012.