CASE OF PETRINA v. CROATIA
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1954 and lives in Primošten. 6. On 31 March 2003 the Šibenik Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Šibeniku) indicted the applicant in the Šibenik Municipal Court (Općinski sud u Šibeniku) on charges of attempted grievous bodily harm. 7. The first hearing before the Šibenik Municipal Court was scheduled for 16 March 2006. 8. On the day of the hearing, the applicant informed the Šibenik Municipal Court that he was unable to appear at the hearing owing to a medical condition. He also submitted medical documentation in that regard. 9. Several witnesses also failed to attend the hearing and the applicant’s lawyer informed the trial court that she no longer represented the applicant. The hearing was adjourned and the next hearing was scheduled for 26 April 2006. 10. At the hearing of 26 April 2006 the applicant, who was not properly summoned, failed to appear. The president of the trial panel ordered that the applicant be summoned by a letter indicating that his defence lawyer no longer represented him and that he should either appoint another lawyer or the hearing would be held in the absence of a lawyer. 11. On 22 May 2006 the applicant informed the Šibenik Municipal Court that he was not able to appear for trial owing to his medical condition. He explained that he would be unavailable for a certain period of time because he was required to undergo medical treatment and promised to inform the court of the progress of that treatment. He therefore asked that the proceedings be stayed until he was able to appear at the hearings. The applicant also submitted back-up medical documentation. 12. At a hearing on 23 May 2006 the Deputy State Attorney asked the trial court to commission a medical report concerning the applicant’s capacity to take part in the proceedings given his state of health. 13. On 30 May 2006 a medical expert, M.D.G., submitted a report indicating that the applicant suffered from heart arrhythmia. She considered that he would not be able to take part in the hearings for a period of time which was hard to predict. She therefore suggested that the trial court re-examine his condition after a month. 14. On 11 August 2006 the Šibenik Municipal Court invited the applicant to submit medical documentation noting the progress of his treatment. 15. The applicant complied with the order and submitted the documentation on 16 August 2006. The Šibenik Municipal Court then commissioned another medical report. 16. On 13 September 2006 medical expert M.D.G. submitted a further report, indicating that the applicant’s state of health had not stabilised despite the medical treatment he had been receiving and that he could not appear at the hearings. She reiterated that it was not possible to predict the exact period of time in which he would not be able to take part in the proceedings and suggested that his condition be reassessed at appropriate intervals. 17. Another medical report was commissioned on 13 March 2007 from a forensic expert, a cardiologist and a psychiatrist. 18. On 15 April 2007 the medical experts, M.D.G., D.M. and D.B., submitted a joint report. They found that the applicant was not able to take part in the hearings and that a strong triggering factor, such as stress, could lead to a heart attack with a possibly fatal outcome. 19. On 23 April 2007 the Šibenik Municipal Court commissioned a further medical report from medical experts M.D.G., D.M. and D.B. 20. The medical experts submitted their report on 19 June 2007, in which they noted: “... we still consider that the accused’s appearance at the hearing would be a risk factor which could (although it might not) lead to a heart attack, and how that will further develop it is hard to predict, which makes Stipe Petrina theoretically unable to appear at the hearing. However, we consider that his appearance at the hearing would be possible only in the presence of [a] doctor, namely a medical team equipped for prompt intervention in the event of a heart attack at the trial.” 21. The Šibenik Municipal Court scheduled a hearing for 20 November 2007. It summoned the applicant, the applicant’s lawyer, B.B., whose services he had engaged on 11 October 2007, and a cardiologist, A.S., to the hearing. 22. At a hearing on 20 November 2007 the Šibenik Municipal Court noted that the applicant’s defence lawyer had informed it on 19 November 2007 that she could not attend the hearing because she was on maternity leave. The applicant was not properly summoned and did not attend the hearing. The cardiologist, A.S., did not attend the hearing, nor did he excuse his absence. The hearing was adjourned and the next hearing was scheduled for 19 December 2007. 23. On 13 December 2007 the applicant informed the Šibenik Municipal Court that he could not appear at the hearing scheduled for 19 December 2007 due to his medical condition. He referred to the medical expert report of 19 June 2007. 24. On 19 December 2007 the Šibenik Municipal Court, relying on Article 10 of the Code of Criminal Procedure (see paragraph 34 below), dismissed the applicant’s request for adjournment as abusive on the grounds that the necessary medical back-up had been secured by summoning the cardiologist, A.S., to the hearing. The court considered that the applicant was trying to delay the proceedings. It also found that, according to the information available to it, the applicant had taken part in a number of other court proceedings as claimant and private prosecutor. 25. On the same date, the Šibenik Municipal Court held a hearing at which the applicant did not appear and to which his defence counsel had not been summoned. The cardiologist, A.S., again did not attend the hearing, nor did he excuse his absence. The hearing was held in the presence of the Deputy State Attorney and the victim’s representative. After the hearing, at which the trial court examined the evidence and written records of witnesses’ oral statements, it found the applicant guilty as charged and sentenced him to four months’ imprisonment, suspended for one year. 26. On 27 June 2008 the applicant lodged an appeal before the Šibenik County Court (Županijski sud u Šibeniku) against the decision to hold a hearing in his absence. The applicant complained that he had not been able to appear at the hearing owing to his medical condition and that the trial court’s findings that he had taken part in a number of other court proceedings had been unsubstantiated and untrue, as while he had been a party to the other proceedings he had never taken part in the trials. 27. On 17 and 18 July 2008 the applicant lodged further statements of appeal before the Šibenik County Court asking that court to quash the first-instance judgment and to order a retrial. He reiterated that the hearing of 19 December 2007 had been held in his absence, even though he had not been able to appear at the hearing owing to his medical condition. He also complained that the necessary medical back-up at the hearing had not been ensured, as a medical team had never been obtained and the cardiologist, A.S., had twice failed to attend the hearings. Moreover, the defence had never been informed that a back-up medical team would be provided, and had the trial court considered that he was abusing his procedural rights, it should have ensured that he had legal representation at the trial. 28. During the appeal proceedings, the Šibenik County State Attorney’s Office (Županijsko državno odvjetništvo u Šibeniku), which represented the prosecution case on appeal, asked the Šibenik County Court to allow the applicant’s appeal and to order a retrial. 29. On 10 October 2008 the Šibenik County Court, in closed session, without holding a hearing, dismissed all the appeals and upheld the first-instance judgment. That court found that the applicant had been abusing his procedural rights and that he had been doing nothing more than trying to delay the trial. 30. On 10 February 2009 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining that the hearing before the first-instance court had been held in his absence. 31. On 29 April 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.