SECOND SECTION

CASE OF ARPS v. CROATIA

(Application no. 23444/12)

JUDGMENT

STRASBOURG

25 October 2016

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

 In the case of Arps v. Croatia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Julia Laffranque, President,
	Nebojša Vučinić,
	Paul Lemmens,
	Valeriu Griţco,
	Ksenija Turković,
	Stéphanie Mourou-Vikström,
	Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 4 October 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 23444/12) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Adriana Arps (“the applicant”), on 28 March 2012.
2.  The applicant was represented by Mr S. Babić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3.  The applicant alleged that she had not had a fair trial in that the session of the appeal panel in the criminal proceedings against her on charges of aggravated fraud had been held in her absence, contrary to Article 6 §§ 1 and 3 (c) of the Convention.
4.  On 26 May 2014 the complaint concerning the applicant’s absence from the session of the appeal panel was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1958 and lives in Hamburg.
6.  On 26 August 2004 the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu; hereinafter: the “State Attorney’s Office”) indicted the applicant and another person in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of aggravated fraud under Article 224 §§ 1 and 4 of the Criminal Code (see paragraph 14 below).
7.  The applicant was tried in summary proceedings (skraćeni postupak). On 11 February 2009 the Zagreb Municipal Criminal Court found the applicant and the other accused guilty as charged and sentenced the applicant to one year’s imprisonment, suspended for four years. She was also ordered, jointly with the other accused, to pay damages to the victims in the total amount of 230,335.22 Croatian kunas (HRK; approximately 31,100 euros (EUR)).
8.  The applicant appealed against her conviction and sentence, challenging all legal and factual aspects of the case and asking that her conviction be quashed and a retrial ordered. She submitted, in particular, that she had not had fraudulent intentions, but had merely acted as an intermediary between the loan provider and the borrowers in order to earn commission for herself. Moreover, she stressed that the trial judge had erred in the factual findings and had failed to obtain certain evidence requested by her, which meant that some crucial facts had been left undetermined. She also asked that she and her defence lawyer be allowed to appear at the session of the appeal panel.
9.  On 20 January 2011 the Bjelovar County Court (Županijski sud u Bjelovaru), without informing the applicant or her lawyer, examined the case without holding a hearing. After examining all of the factual and legal issues of the case it dismissed the appeal and upheld the applicant’s conviction and sentence.
10.  On 5 April 2011 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining of a lack of fairness of the criminal proceedings against her. She contended in particular that she had not been allowed to appear at the session of the appeal panel.
11.  On 29 September 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.
Article II.	II.  RELEVANT DOMESTIC LAW
(a)	1.  Constitution
12.  The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 113/2000, 28/2001, 76/2010, 5/2014) read as follows:
Article 29
“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 event 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;
...”
13.  The relevant part of section 62 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999, 29/2002, 49/2002) reads:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) by a State body, or a body of local or regional self-government, or a legal person with public authority that has decided a matter concerning his or her rights and obligations or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...”
(b)	2.  Criminal Code
14.  The relevant part of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 190/2003, 105/2004, 84/2005 and 71/2006) provides:
Fraud
Article 224
“(1) Anyone who, with the aim of obtaining unlawful pecuniary gain for himself or a third party, by false representation or concealment of facts deceives another or continues the deception of another, thereby inducing him to do or to omit to do something to the detriment of his property or the property of another, shall be punished by imprisonment lasting from three months to three years.
...
(4) If the perpetration of the offence referred to in paragraph 1 of this Article results in significant pecuniary gain or if it causes significant damage, and the perpetrator acted with intent to obtain such pecuniary gain or to cause such damage, he shall be punished by imprisonment from six months to five years.”
(c)	3.  Code of Criminal Procedure
15.  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:
CHAPTER II – COMPETENCE OF THE COURTS
1. Jurisdiction and composition of the courts
Article 16
“1.  The municipal courts, county courts and the Supreme Court shall have competence in criminal matters.
...”
Article 19
“The county courts shall be competent:
...
(2) to decide on appeals lodged against decisions of the municipal courts rendered in the first-instance.
...”
CHAPTER XXIV – ORDINARY LEGAL REMEDIES
1. Appeal against the first-instance judgment
(c) Grounds on which a judgment can be challenged
Article 366
“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 a decision to publish the judgment.”
(d) Appeal proceedings
Article 371
“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.
...”
Article 372
“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.”
Article 373
“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.
...”
 (e)  Scope of the review
Article 379
“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).
...”
Article 381
“If the appeal has been lodged only in favour of the defendant, the judgment cannot be amended to his detriment.”
(f)  Decision of the second-instance court on appeal
Article 384
“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.
...”
D. Special provisions on the proceedings before a municipal court
CHAPTER XXV – SUMMARY PROCEEDINGS
Article 430
“In proceedings before a municipal court for offences punishable by a fine or up to five years’ imprisonment, the provisions of Articles 431-445 of this Code shall apply, and if they do not provide otherwise, other provisions of this Code shall apply.”
Article 445
“When a second-instance court decides on an appeal against the judgment of a first-instance court rendered in the summary proceedings, both parties shall be notified of the second-instance panel session if the first-instance judgment pronounced a prison sentence and if the parties requested to be notified of the session or if the president of the panel or the second-instance court panel consider that the presence of all or one of the parties would be of benefit for the clarification of the case.”
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION
16.  The applicant complained that she had not had a fair trial in that she had not been allowed to be present at the session of the appeal panel before the Bjelovar County Court. She relied on Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an ... impartial tribunal established by law. ...
3.  Everyone charged with a criminal offence has the following minimum rights:
...
(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
...”
Section 3.01	A.  Admissibility
(a)	1.  The parties’ arguments
17.  The Government argued that in the complaint the applicant lodged with the Constitutional Court she had not expressly relied on Article 29 § 2 (4) of the Constitution, which corresponds to Article 6 § 3 (c) of the Convention. Furthermore, the Government stressed that in her constitutional complaint she had merely alleged that the Bjelovar County Court had violated her constitutional right in that she and her defence lawyer had not been allowed to appear at the session of the appeal panel, without further substantiating this complaint. Thus, the Government considered that she had not properly argued her case before the Constitutional Court.
18.  The applicant maintained that she had properly exhausted the domestic remedies.
(b)	2.  The Court’s assessment
19.  In accordance with Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right violations alleged against them before those allegations are submitted to the Court (see, for example, Gherghina v. Romania [GC] (dec.), no. 42219/07, § 84, 9 July 2015; Hentrich v. France, 22 September 1994, § 33, Series A no. 296-A; and Remli v. France, 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II). Thus, a complaint submitted to the Court should first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).
20.  The Court notes that in the complaint the applicant lodged with the Constitutional Court she alleged, inter alia, a violation of her right to a fair trial. She contended in particular that she had not been allowed to appear at the session of the appeal panel. The Court considers that the applicant, having raised the issue in substance in her constitutional complaint, did raise before the domestic courts the complaint which she has submitted to the Court (see, by contrast, Mađer v. Croatia, no. 56185/07, § 137-139, 21 June 2011, and Merot d.o.o. and Storitve Tir d.o.o. v. Croatia (dec.), nos. 29426/08 and 29737/08, § 35-36, 10 December 2013). The applicant thereby provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them (see, for instance, Jaćimović v. Croatia, no. 22688/09, § 41, 31 October 2013). It therefore follows that the Government’s objection as to the non-exhaustion of domestic remedies must be dismissed.
21.  The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
(i)	(a)  The parties’ arguments
22.  The applicant submitted that her presence at the session of the appeal panel had been necessary because the Bjelovar County Court had been called upon to examine all the factual and legal circumstances of the case. Had she been allowed to attend the session she could have presented her case in person and elaborated on the failures of the Zagreb Municipal Criminal Court with respect to facts and law which she had alleged in her appeal. The applicant considered it irrelevant that the prosecution had not lodged an appeal against the first-instance judgment since it had been crucial for the Bjelovar County Court to hear her in person in order to properly assess the circumstances of her case and to amend the first-instance judgment in her favour.
23.  The Government argued that under the relevant domestic law and practice in situations such as that in the instant case − where the defendant had been tried in summary proceedings and given a suspended prison sentence − the appellate court had the discretion to decide whether it was expedient to allow the defendant to attend the session of the appeal panel. The Government argued that the Bjelovar County Court had correctly held that there was no reason for the applicant to attend the session of the appeal panel. This was so because the applicant had been heard during the trial and had been awarded the opportunity to effectively participate in the first-instance proceedings. The Government also contended that since the prosecution had not appealed against the first-instance judgment and had not been summoned to the session of the appeal panel, the applicant had not been placed in a disadvantageous position vis-à-vis the prosecution. Moreover, they asserted that the Bjelovar County Court had not had the power to impose a more severe sentence on the applicant and, in view of the applicant’s arguments in her appeal, it had had no reason to hear her in person.
(ii)	(b)  The Court’s assessment
24. In the cases of Zahirović v. Croatia (no. 58590/11, § 58-64, 25 April 2013) and Lonić v. Croatia (no. 8067/12, § 94-102, 4 December 2014), the Court found, after a detailed examination of the Croatian system of appeal proceedings, that when an appeal court was called upon to make a full assessment of an applicant’s guilt or innocence regarding the charges against him or her, in view of not only the arguments he or she had adduced before the first-instance court but also the arguments concerning the alleged failures of that court to establish all the relevant facts and to apply the relevant substantive and procedural rules correctly, this − as a matter of fairness − required the applicant’s presence at the session of the appeal panel. Moreover, in the case of Lonić (cited above, § 100) the Court considered it irrelevant that the appeal against the first‑instance judgment had been lodged only by the applicant, since that did not affect the principal question brought before the second-instance court, namely whether the applicant was guilty or innocent, which, in order for the trial to be fair, required the applicant’s presence at the session of the appeal panel.
25.  The Court sees no reason to hold otherwise in the present case. It notes that in her appeal the applicant contested the charges, her conviction, and the sentence imposed, on both factual and legal grounds. She submitted, in particular, that she had not had fraudulent intentions, but had merely acted as an intermediary between the loan provider and the borrowers in order to earn commission for herself. Moreover, she contended that the trial judge had erred in the factual findings and had failed to obtain certain evidence requested by her, as a result of which some crucial facts had been left undetermined (see paragraph 8 above).
26.  The Bjelovar County Court was therefore called upon to make a full assessment of the applicant’s guilt or innocence regarding the charges against her in the light of not only the arguments she had adduced before the first-instance court but also those concerning the alleged failures of that court to establish all the relevant facts and to apply the relevant substantive and procedural rules correctly (see Lonić, cited above, § 99, with further references).
27.  However, contrary to the requirements of the above case-law, the Bjelovar County Court eventually decided that the parties did not need be present at the session of the appeal panel (see paragraph 9 above). Having examined all the facts and legal issues submitted by the applicant, it dismissed her appeal as ill-founded and upheld the Zagreb Municipal Criminal Court’s judgment, finding the applicant guilty of aggravated fraud.
28. With regard to the Government’s argument that it was for the appeal courts to decide whether the applicant’s presence at the session of the appeal panel was expedient, as provided in the relevant domestic law, the Court has already explained in the case of Zahirović (cited above, § 62) that, notwithstanding the discretion of the appellate court to decide whether or not to afford the applicant an opportunity to be present at the session of the appeal panel, the issues to be examined by the appeal court required, as a matter of fairness, that the applicant be heard and be able to defend herself in person. In this connection the Court reiterates that although this is not expressly mentioned in paragraph 1 of Article 6, the object and purpose of the Article taken as a whole show that a person “charged with a criminal offence” is entitled to take part in the hearing. Moreover, sub-paragraph (c) of paragraph 3 guarantees to “everyone charged with a criminal offence” the right “to defend himself in person”, and it is difficult to see how the applicant could exercise these rights without being present (see Sejdovic v. Italy [GC], no. 56581/00, § 81, ECHR 2006 II).
29. Accordingly, in view of these findings, having regard to its case-law as set out in the Zahirović and Lonić cases (cited above), the Court finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
30.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Section 4.01	A.  Damage
31.  The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage.
32.  The Government deemed this claim excessive, unfounded and unsubstantiated.
33.  Having given due consideration to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.
Section 4.02	B.  Costs and expenses
34.  The applicant did not submit any claim for the costs and expenses incurred before the domestic courts, or for those incurred before the Court.
35.  Accordingly, the Court does not award any sum under this head.
Section 4.03	C.  Default interest
36.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amount, to be converted into Croatian kunas at the rate applicable at the date of settlement:
EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage.
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 25 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Julia Laffranque
	Registrar	President