CASE OF PREZEC v. CROATIA
Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1972. 5. Following a criminal conviction for murder, the applicant was sent to Lepoglava State Prison on 15 December 1997 to serve a twelve-year prison sentence. Since that date he has served his sentence in various prisons in Croatia. 6. On 3 December 2003, while the applicant was serving his prison term in Pula Prison, the Pula Municipal State Attorney's Office indicted him on a charge of threatening a prison employee on 21 May 2003. Criminal proceedings were instituted against the applicant before the Pula Municipal Court (Općinski sud u Puli). A hearing scheduled for 18 December 2003 was adjourned because the applicant had not been duly summoned. A further hearing scheduled for 2 March 2004 was also adjourned because at that time the applicant was undergoing treatment in Zagreb Prison Hospital. At a hearing held on 25 May 2004 the applicant stated that he had neither understood the content of the indictment against him nor the warning given to him by the presiding judge. The court then ordered a psychiatric examination of the applicant and adjourned the hearing. 7. On 28 June 2004 the applicant lodged a written request for a legal aid counsel. The request was received at the Pula Municipal Court on 30 June 2004 and enclosed in the case file on 15 July 2004. No written decision was made in respect of his request at that stage of the proceedings. 8. The applicant was examined by a psychiatrist in Vrapče Psychiatric Hospital (Psihijatrijska bolnica Vrapče) from 23 to 29 June 2004. The report, drawn up on 6 July 2004, shows that the applicant was treated in the Psychiatric Ward of the Zagreb Prison Hospital during the following periods: - 12 to 17 February 1999 for depression; - 26 February to 15 March 1999 for a suicide attempt; - 1 to 6 April 1999 for allegedly falling out of bed and hurting his head; - 3 December 1999 to 10 January 2000 for depression and anxiety; - 17 February to 6 March 2000 for self-injury; - 21 December 2000 to 31 January 2001 for a suicide threat; - 12 to 24 April 2001 for personality disorder; - 6 to 25 November 2002 for personality and behavioural disorder; - 17 December until 2 January 2003 for a suicide attempt; - 3 to 22 April 2003; - 28 July to 20 August 2003 for a suicide attempt; - 21 to 22 August 2003 for refusal to drink water; - 22 August to 22 September 2003 for a suicide attempt; - 24 September to 27 November 2003 for a suicide attempt; - 20 February to 18 March 2004 for a suicide attempt; - 8 to 14 April 2004 for swallowing batteries; The conclusions of the report read as follows: “1. Zlatko Prežec is a person suffering from serious and permanent personality disorder with a prevalence of paranoia [paranoid personality disorder], schizophrenic disorder and a pronounced narcissistic pathology, as well as a strong tendency towards destructive and self-destructive behaviour. 2. The patient's mental disorders do not fall into the category of a temporary or permanent mental illness, insufficient mental development or a mental illness with physical causes. 3. During psychiatric examination no elements indicating alcohol dependency or dependency on any psychoactive substance were found. 4. Bearing in mind the gravity and nature of the patient's personality disorders and their close link with the offences with which he has been charged, we consider that his ability to understand and control his own actions was diminished when the offences in question were committed. 5. Bearing in mind the serious and genuine risk [that the patient] might commit further criminal offences, we recommend that he undergo compulsory psychiatric treatment. 6. The patient maintains the capacity to participate in the proceedings against him for the time being.” On 12 July 2004 the report was submitted to the Pula Municipal Court. 9. At a hearing held on 13 July 2004 the applicant stated that he was going to defend himself in person although he was of the opinion that his constitutional rights were thus violated. At the same time he also stated that he did not understand anything. The relevant part of the written transcript of the hearing reads: “The defendant is informed, under Article 5 of the Code of Criminal Procedure, that he has the right to defend himself in person or with assistance of a defence counsel. The defendant states: 'I do not understand anything.' The judge again informs the defendant of his rights under Article 5 of the Code of Criminal Procedure. The defendant states: 'I will defend myself in person although I think that my constitutional rights have thus been violated.' The defendant then states that he has not understood anything.” During the trial the applicant remained silent. On 13 July 2004 the Pula Municipal Court (Općinski sud u Puli) found the applicant guilty as charged and sentenced him to five months' imprisonment. In addition, it ordered the applicant to undergo compulsory psychiatric treatment because he had been diagnosed as suffering from a mental disorder. With regard to the applicant's mental state, the judgment stated: “... the defendant ... is a person suffering from serious and permanent [chronic] personality disorders with a prevalence of paranoia [paranoid personality disorder], schizophrenic disorder and a pronounced narcissistic pathology, as well as a strong tendency towards destructive and self-destructive behaviour.” 10. On 24 August 2004 the applicant lodged an appeal against the first-instance judgment alleging, inter alia, that his defence rights had been violated in that his request to have a defence counsel appointed in the proceedings before the first-instance court had been ignored. The case file was sent to the Pula County Court (Županijski sud u Puli) sitting as an appeal court. On 3 August 2005 the appeal court returned the case file to the Pula Municipal Court because it had failed to decide upon the applicant's further, written request of 28 June 2004 to have a defence counsel appointed to him. 11. On 6 September 2005 the Pula Municipal Court heard the applicant in connection with his request for a legal aid lawyer. In a decision of 22 September 2005 the Pula Municipal Court appointed a lawyer practising in Pula as the applicant's defence counsel. In the operative part of the decision a lawyer T.S. was appointed, while in the reasoning another lawyer, T.B., is named as the officially appointed defence counsel. The relevant part of this decision reads as follows: “This court has ... established that the defendant's financial situation ... does not allow him to engage the services of a defence counsel and that reasons of fairness require that a defence counsel be officially assigned to him.” 12. On 30 September 2005 the appointed counsel, T.S., also lodged an appeal against the first-instance judgment. 13. On 20 April 2006 the Pula County Court dismissed both appeals. As regards the lack of legal representation for the applicant during the trial before the first-instance court, it held: “The defendant ... maintains that the first-instance court took no heed of the fact that he suffers from mental illness and that therefore a defence counsel should have been assigned to him ... This appeal court finds, however, that no procedural error was made which could have affected the defendant's defence rights. The record of the hearing held on 25 May 2004 shows that the defendant stated that he did not feel capable of defending himself, after which the first-instance court adjourned the hearing and ordered a psychiatric examination of the defendant ... The report showed that the nature and intensity of the defendant's mental illness did not put in question his ability to defend himself. The [first-instance court] held a hearing on 13 July 2004 at which the defendant, although expressly advised in accordance with Article 5 of the Code of Criminal Procedure that he could defend himself in person or with the assistance of a defence counsel, stated 'that he is going to defend himself in person although his constitutional rights are thus infringed'. It follows that the defendant, who had been found capable of defending himself in person, that is to say that he understood his role in the trial and the information about his rights, expressly stated that he was going to defend himself in person.” 14. In his subsequent constitutional complaint of 26 June 2006 the applicant complained that he had no means to pay for legal assistance since he had been serving a prison term since 1997. Furthermore, owing to his mental state, the interests of justice required that he be granted such assistance. He alleged that he had asked the presiding judge on several occasions, both orally and in writing, to be granted legal assistance. However, she had completely ignored his requests until the appeal court remitted the case file to her in order to decide on his request for legal assistance. A decision of the President of the Pula Municipal Court of 22 September 2005 appointing two defence counsel had been served on the applicant in prison but it did not contain the address or telephone number of either of the appointed counsel. Neither of them had contacted the applicant. 15. On 13 November 2008 the Constitutional Court dismissed the applicant's complaint. 16. The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides as follows: “(1) A defendant has the right to defend himself in person or with the assistance of a defence counsel of his own choosing from among the members of the Bar. Where prescribed by this Code, and in order to ensure [that the rights of] defence [are respected], a defence counsel shall be assigned to a defendant who has not appointed a defence counsel of his own choice. (2) Under the conditions prescribed by this Code, a legal aid lawyer shall be appointed, on the request of the defendant, to a defendant who has no means to pay for legal assistance. (3) A court or other State body participating in the criminal proceedings shall inform the defendant of his right to a defence counsel when he or she is first questioned. (4) The defendant shall be afforded adequate time and facilities for the preparation of his or her defence.” 17. Pursuant to Article 430 of the Code of Criminal Procedure, where the defendant requests an amendment of a final judgment following a finding by the European Court of Human Rights of a violation of, inter alia, the right to a fair trial, the rules governing a retrial shall apply. 18. The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows: “1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional self-government, or a legal person invested with public authority, on his or her rights or obligations, or about suspicion or accusation of his or her having committed a criminal offence, has violated his or her human rights or fundamental freedoms, or right to local or regional self-government, guaranteed by the Constitution (hereinafter: constitutional rights)... 2. If another legal remedy is allowed against the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] are allowed, remedies shall be considered exhausted only after the decision on these legal remedies has been given.” “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual's rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.” 19. The relevant part of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/05 and 16/07), which entered into force on 29 December 2005, reads as follows: “(1) A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with the immediately higher court. (2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Petty Offences Court of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia. (3) The proceedings for deciding the request referred to in paragraph 1 of this section shall be urgent.” “(1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time. (2) The compensation shall be paid out of the State budget within three months from the date the party's request for payment is lodged. (3) An appeal, to be lodged within fifteen days with the Supreme Court, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against the Supreme Court's decision but one may lodge a constitutional complaint.”