CASE OF ZAHIROVIĆ v. CROATIA
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Violation of Article 6+6-3-c - Right to a fair trial (Article 6-3 - Rights of defence) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person);Non-pecuniary damage - award
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
4. The applicant was born in 1975 and lives in Zagreb. 5. On 22 October 2003 an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) opened an investigation in respect of the applicant in connection with suspicions that on 5 July 2003 he had put at risk the life and limb of others by firing shots in his partner’s flat and that on 6 July 2003 he had attempted to murder three persons by shooting at them in a nightclub. The investigating judge ordered the applicant’s detention but the applicant remained at large. 6. The applicant appeared before the investigating judge of the Zagreb County Court on 28 April 2004. He was questioned and remanded in custody on the same day. 7. On 24 June 2004 the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) indicted the applicant in the Zagreb County Court, alleging that on 5 July 2003 he had put at risk the life and limb of others and that on 6 July 2003 he had attempted to murder three persons. 8. Judge Z.K. assumed responsibility for the applicant’s case as the president of a trial panel of the Zagreb County Court. 9. On 2 September 2004 a three-judge panel of the Zagreb County Court, composed of Judges D.T., E.D. and M.G., extended the applicant’s detention on the grounds provided for under Article 102 § 1(3) of the Code of Criminal Procedure (risk of reoffending). The relevant part of the decision reads: “... the accused is indicted under count two, namely that on 5 July 2003 in the flat of his partner S.O. he fired two shots from a gun at a wall, irrespective of the fact that R.Z. and Z.Kor. were present in the same room and that he was aware that the bullets could ricochet from the wall and hurt any of the persons present. Under count one, he is indicted on the ground that on 6 July 2003 in a nightclub, after a verbal dispute with K.G., he fired several times from a gun and then fired all the remaining bullets from the gun at A.P. and M.V. ... with the aim of murdering them, and K.G.’s life was saved by medical intervention. The above shows the accused’s brutality, determination, high degree of criminal resolve and obvious propensity towards such criminal behaviour, all of which, in the opinion of this court, continues to justify the extension of his detention because of the fear that [if at large] he would commit a further criminal offence.” 10. On 28 April 2006 a three-judge panel of the Zagreb County Court found that the maximum statutory period of the applicant’s detention had expired and ordered that he be released from detention. Judge M.G. was a member of that panel. 11. On 16 September 2008 the Vice-President of the Criminal Division of the Zagreb County Court reassigned the applicant’s case to Judge M.G. because in the meantime Judge Z.K. had become a judge of the Supreme Court (Vrhovni sud Republike Hrvatske). 12. On 27 November 2009 a trial panel of the Zagreb County Court, presided over by Judge M.G., found the applicant guilty of the attempted murder of three persons and dismissed the charge of putting at risk the life and limb of others on the ground that the prosecution had withdrawn that charge. The applicant was sentenced to six years’ imprisonment. 13. On 2 February 2010 the Zagreb County State Attorney’s Office lodged an appeal with the Supreme Court against the Zagreb County Court’s judgment, seeking a more severe sentence. 14. The applicant lodged an appeal against the Zagreb County Court’s judgment with the Supreme Court on 16 February 2010, complaining of a number of substantive and procedural flaws, and notably that Judge M.G. had not been impartial. The applicant contended that by being a member of a panel which had extended his pre-trial detention, Judge M.G. had already formed his opinion about the charges against the applicant. 15. On an unspecified date in 2010, the Supreme Court, acting under Article 373 § 1 of the Code of Criminal Procedure, forwarded the parties’ appeals and the Zagreb County Court’s case file to the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) for their examination and opinion. 16. On 16 March 2010 the State Attorney’s Office of the Republic of Croatia submitted an opinion to the Supreme Court on both appeals, however, this opinion was not communicated to the defence. The opinion reads: “Please find enclosed the Zagreb County Court’s case file no. K-124/04 concerning the criminal proceedings against the accused Zajko Zahirović, charged with the offences under Article 90 in conjunction with Article 33 of the Criminal Code, which was forwarded [to the State Attorney’s Office of the Republic of Croatia] after the [Zagreb] State Attorney’s Office and the accused’s lawyer had submitted their appeals ... As to the appeal lodged by the [Zagreb] State Attorney’s Office concerning the sentence, we consider that it was correctly pointed out that the [first-instance] court sentenced [the applicant] to a rather lenient sentence of imprisonment which appears absolutely inappropriate in view of the circumstances of the offence and his personality ... It was correctly pointed out that certain aggravating factors had been significantly underestimated, namely the grave consequences for [the health of] K.G. and the other victims. Furthermore, the [first-instance] court failed to take into account the accused’s attitude towards the victims and the damage caused by the offences, as well as his lack of any remorse for or apology to the victims. This all should be taken into account in the sentencing procedure and should eventually lead to a more severe sentence as requested by the [Zagreb] State Attorney’s Office. As to the appeal lodged by the defence, it is to be noted that there has been no fundamental miscarriage of justice in the proceedings, within the meaning of Article 367 ... of the Code of Criminal Procedure, concerning the impartiality of the trial judge, who [allegedly] should have been excluded from the case. In his submission the appellant refers to the case-law of the Constitutional Court and the European Court of Human Rights concerning the exclusion of a judge who presides over a trial panel, having already decided on the accused’s detention at the pre-trial stage of the proceedings. The case-law of the Constitutional Court’s impartiality is presumed until there is proof to the contrary and since in the case at issue there are no objective circumstances which could raise doubts as to the impartiality of the judge who presided over the trial panel, such case-law is not applicable to the present case. As to the [complaint alleging] substantive flaws in that no reference was made to the Articles of the amended Criminal Code, it is to be noted that the Criminal Code was not amended as regards Article 90 and that the court in the present case correctly applied the relevant provision ... As to the factual findings [of the first-instance court], we consider that all the relevant facts have been sufficiently and comprehensibly established. The [first-instance court] based its findings on the report drawn up by the ballistics expert V.M. and, after the assessment of the relevant witness statements, it set out in detail its conclusion that the accused had caused the conflict. Therefore, the argument of self-defence raised in the appeal is not correct because, under the relevant case-law, the person who first drew a gun cannot invoke the defence of self-defence. We also find that sufficient reasons have been given as to the existence of all the elements of the offence, as regards the victims A.P. and M.V., as the accused’s mens rea. The exact place from which he shot the gun was also established without any doubt. As to the fact that the victim – a policeman [by profession] – also had a gun, we consider that this has no bearing on the factual findings set out in the [first-instance] judgment. This is because no bullets fired from the [victim’s] gun were found in the nightclub, but only one unfired bullet. Therefore, the appellant’s argument that the victim fired his gun is unsupported by the personal and physical evidence. In this connection it is also to be noted that all the relevant facts, other than the statements of the victims and the other witnesses unrelated to the accused Zajko Zahirović, are supported by a 3D reconstruction [of the crime scene] and the report of the ballistics expert M. Against the above background we propose that the appeal by the State Attorney’s Office be allowed and the appeal lodged by the defence be dismissed as ill-founded.” 17. On 22 March 2010 the Supreme Court informed the parties that a public hearing would be held on 20 April 2010. The applicant’s defence lawyer, who had represented him throughout the proceedings, was invited to attend but it was expressly stated that the applicant, who in the meantime had been remanded in pre-trial detention until the judgment became final, was not to attend. 18. On 20 April 2010 the Supreme Court held a public hearing in the presence of the applicant’s defence lawyer and the Deputy State Attorney of the Republic of Croatia (Zamjenik Glavnog državnog odvjetnika Republike Hrvatske). 19. At the appeal hearing the applicant’s defence lawyer reiterated the arguments set out in his appeal and the Deputy State Attorney of the Republic of Croatia endorsed the arguments set out in the opinion of 16 March 2010 (see paragraph 16 above). The relevant part of the summary record of the appeal hearing reads: “With the permission of the President, the ... defendant gave the necessary explanations for his submissions, in particular: The defence counsel reiterated the appeal submissions. The Deputy State Attorney of the Republic of Croatia stated that he endorsed the proposal submitted under Article 373 § 2 of the Code of Criminal Procedure, ... After that, at 10 a.m., the President decided that the part of the session at which the parties were allowed to be present had concluded and that the decision which the panel would adopt in the course of the session would be made available to all interested parties by means of the delivery of a certified copy of the decision through the first-instance court.” 20. On the same day the Supreme Court adopted a judgment in which it upheld the applicant’s conviction and increased his sentence to eight years’ imprisonment. The relevant part of the judgment reads: “The Deputy State Attorney of the Republic of Croatia, after consulting the case file ... in a reasoned opinion of 16 March 2010 ... asked for the appeal lodged by the State Attorney’s Office to be allowed and the appeal lodged by the accused to be dismissed. ... The accused Zajko Zahirović, in his appeal ... asked to be invited together with his defence lawyer ... to the hearing before the appeal court. The request as regards the defence lawyer has been complied with ..., whereas the appeal court has not found it useful to have the accused brought from pre-trial detention ... ... The mere fact that the president of the trial panel had ruled on the appellant’s pre-trial detention is not a reason for excluding that judge from the trial ... Since the appellant failed to substantiate any circumstances which could raise doubts as to the impartiality of the president of the trial panel, his argument appears ill-founded. ... The appeal lodged by the State Attorney’s Office concerning the sentence is well founded ... The first-instance court ... treated as mitigating circumstances the appellant’s decent behaviour in court, his relative youth, his lack of previous convictions, the fact that he was unemployed, had no assets and was a father of three minor children, one of whom was seriously disabled, and the fact that he was charged with attempting to commit criminal offences. His exceptional determination and criminal resolve, as manifested in committing three criminal offences putting life and limb at risk, were assessed as aggravating circumstances. Contrary to the criminal offences committed to the detriment of A.P. and M.V., where no harm occurred – which is an additional mitigating factor that, together with other mitigating factors, could have led to the application of the rules on applying a more lenient penalty – the criminal offence committed to the detriment of K.G. resulted in grave consequences since he sustained serious and life-endangering wounds to his vital organs in his twenty-seventh year and at the peak of his career, which was then interrupted by long-term treatment and rehabilitation, although he had not contributed in any significant manner [to the situation], which amounts to an additional aggravating factor. The [appellant’s] behaviour after the commission of the criminal offences, as rightly pointed out in the appeal lodged by the State Attorney’s Office, namely that he escaped to another country, together with the lack of any remorse or apology to the victims, amount to additional aggravating circumstances which indicate that the rules on imposing a more lenient penalty should not have been applied in respect of that criminal offence.” 21. On 31 May 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that his right to a fair trial had been violated, inter alia, because of the lack of impartiality of Judge M.G.; because the submissions of the Deputy State Attorney of the Republic of Croatia to the Supreme Court had not been communicated to him; and because the Supreme Court had not examined him prior to increasing his sentence. 22. On 23 March 2011 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 on 4 April 2011. 23. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010) read as follows: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law. In the case of suspicion of a criminal offence or criminal charges [being brought], the suspect, defendant or accused shall have the right: ... - to defend himself in person or with the assistance of a defence lawyer of his own choosing, and if he does not have sufficient means to pay for legal assistance, to be given it free as provided by law; - to be tried in his presence, provided that he is available to the court; ...” 24. The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001) provide: “(1) Anyone who intentionally begins to commit an offence but does not finish it shall be punished for an attempted offence if the offence at issue is punishable by a sentence of imprisonment of five years or more or, for any other offence, if the law provides that such an attempt shall be punished. (2) A perpetrator who attempted to commit an offence shall be punished as if the offence had been committed but may be also punished by a more lenient sentence. ...” “Anyone who deprives another of his life shall be punished by a sentence of imprisonment of at least five years.” 25. At the material time, the relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provided: “1. The municipal courts, county courts and the Supreme Court shall have competence in criminal matters. ...” “The Supreme Court shall be competent: (1) to decide as the second-instance court on appeals lodged against decisions of the county courts; ...” “1. A judge or lay judge shall be excluded from sitting in a case: (1) if he has been injured by the offence; (2) if he is the spouse, a relative by blood, either lineal, descending or ascending, or collateral to the fourth degree, or related by affinity to the second degree, to the defendant, his counsel, the prosecutor, the injured person, their legal guardian or legal representative; (3) if he is a legal guardian, ward, adopted child or adoptive parent, foster parent or foster child to the defendant, his counsel, the prosecutor or the injured person; (4) if in the same criminal case he has carried out actions during the investigation, or has taken part in deciding on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness; (5) if in the same case he has taken part in adopting the decision of a lower court or in adopting a decision of the same court being challenged by means of an appeal or extraordinary remedy. 2. A judge or lay judge may be recused in a particular case if it has been argued and proved that there are circumstances other than those listed in the previous paragraph which call his impartiality into doubt.” “1. A judge or lay judge, as soon as he discovers a ground for exclusion referred to in Article 36, paragraph 1, of this Code, shall discontinue all activity on the case and report the matter to the president of the court, who shall appoint a substitute judge. ... 2. If a judge or lay judge holds that other circumstances exist which would justify his standing down (Article 36, paragraph 2), he shall inform the president of the court thereof.” “1. Disqualification of a judge may also be requested by the parties. 2. The parties may lodge their request for disqualification before the opening of the trial, and if they learn at a later stage of a reason for the judge’s exclusion (Article 36, paragraph 1), they shall submit their request immediately after they have learned of that reason.” “A judgment can be challenged: (1) for a procedural miscarriage of justice; (2) for a violation of the Criminal Code; (3) for any error of fact; (4) in respect of any sanction, confiscation of the proceeds of crime, costs and expenses ordered or any civil claim lodged in the criminal proceedings, and in respect of the decision to publish the judgment.” “1. An appeal shall be lodged with the first-instance court in a sufficient number of copies for the court, the opposing party and the defence counsel to reply thereto. ...” “The first-instance court shall forward a copy of the appeal to the opposing party, which may submit a reply. The appeal together with all the files shall be forwarded by the first-instance court to the second-instance court, which shall also take into account any reply to the appeal received before its session begins. “1. When the second-instance court receives the files, the president of the appeal panel shall assign a reporting judge. If the case concerns an offence which is subject to public prosecution, the reporting judge shall forward the case file to the competent State Attorney, who shall examine it and then return it to the court without delay. 2. When the State Attorney returns the case file, the president of the panel shall schedule the session of the panel. The State Attorney shall be notified of the session. ...” “1. The accused and his defence counsel and any subsidiary prosecutor or private prosecutor who, within the time-limit for appealing or replying to an appeal, have requested to be notified of the session or have proposed that a trial be held before the appellate court, shall be notified of the session. The president of the panel, or the panel, may decide that the parties should be notified of the session, even if they have not so requested, if their presence would be useful for the clarification of the case. 2. If the accused is in pre-trial detention or is serving a sentence [of imprisonment] and has defence counsel, his presence shall be ensured only if the president of the panel, or the panel, considers it expedient. 3. The session of the panel shall begin with the report by the reporting judge on the facts of the case. The panel may request such explanations as are necessary from the parties present at the session concerning the appeal submissions. The parties may propose that certain files be read out in order to supplement the report and may, subject to the approval of the president of the panel, give such explanations as are necessary of the positions stated in their appeal or their reply to the appeal, without repeating the contents of the report. ...” “1. The second-instance court shall examine the first-instance judgment in the part and on the grounds referred to in the appeal (Article 366). ...” “1. The second-instance court may, after a session of the appeal panel or after a trial, reject the appeal as being lodged out of time or as being inadmissible, or dismiss the appeal as ill-founded and uphold the first-instance judgment, or quash the first-instance court’s judgment and remit the case to it for a retrial, or reverse the first-instance judgment. ...” 26. In case no. I Kir-163/10, concerning a criminal investigation in connection with a suspicion of offences of forgery of official documents under Article 312 of the Criminal Code, on 11 February 2011 the President of the Split County Court (Županijski sud u Splitu), further to a request by the defence, excluded a judge, M.P., from the case. He found that, although the request for exclusion of the judge had been highly vague, the judge had to be excluded in order to avoid any doubt as to his impartiality. Judge M.P. himself rejected any objection as to his impartiality but shared the view that he should be excluded to avoid any such objection from the defence.