I incorrectly predicted that there's no violation of human rights in PETROVIĆ v. CROATIA.

Judgment

FIRST SECTION
CASE OF PETROVIĆ v. CROATIA
(Application no. 63093/16)

JUDGMENT
STRASBOURG
10 December 2020

This judgment is final but it may be subject to editorial revision. In the case of Petrović v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Alena Poláčková, President,Gilberto Felici,Raffaele Sabato, judges,and Renata Degener, Deputy Section Registrar,
Having regard to:
the application (no. 63093/16) 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, Mr Predrag Petrović (“the applicant”), on 22 October 2016;
the decision to give notice to the Croatian Government (“the Government”) of the complaint concerning the applicant’s inability to examine a witness in criminal proceedings against him, and declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 17 November 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns summary minor-offence proceedings in which the applicant was found guilty of a traffic-related minor offence on the basis of a statement by a witness who had given evidence in court in the absence of the defence. THE FACTS
2. The applicant was born in 1971 and lives in Viškovo. The applicant was represented by Mrs S. Vizjak, a lawyer practising in Viškovo. 3. The Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 29 December 2013, while driving at an intersection of two streets near his home, a police officer, D.I., signalled to the applicant with a traffic paddle marked with the words “Stop – Police” to pull his car in on the right side of the road. Instead, the applicant started turning left towards another street. The police officer again issued him the order to pull his car in on the right side of the road. The applicant did not stop, but increased his speed and continued driving. Shortly after that, the police established the identity of the driver and went to his home address, where he was given a notice of the committed traffic-related minor offence. The applicant refused to sign the document. 6. On 14 January 2014 the Rijeka traffic police unit of the Primorsko-goranska police (Policijska uprava Primorsko-goranska, Postaja prometne policije Rijeka – hereinafter “the police”) issued a penalty notice (obvezni prekršajni nalog) which stated that the applicant had committed the minor offence of failing to comply with a police order to stop a car under section 32 of the Road Traffic Safety Act (Zakon o sigurnosti prometa na cestama, see paragraph 24 below), fining him with 3,000 Croatian kunas (HRK) and imposing a six-month driving ban as a precautionary measure. The statement of facts, which was printed on a form, stated that the offence had been established through the personal observations of Officer D.I., who had submitted a report on it. 7. On 28 January 2014 the applicant challenged the penalty notice before the Rijeka Minor Offences Court (Prekršajni sud u Rijeci), arguing that he had not committed the offence and asking to be allowed to make his case in the proceedings. He argued that during the event he had seen the police officer, who had signalled with the traffic paddle for him to pull his car over on the right side. However, after he had started turning right so as to comply with the police officer’s order, the same police officer had given him another order, indicating with the traffic paddle that he turn left. The police officer repeated the same order once more. Accordingly, he had complied with the given order and had turned left towards his neighbourhood and had continued driving until he had reached his house. Afterwards, two police officers had come to his house and informed him that he had committed the minor offence of failing to comply with a police order to stop a car. He had also been asked to take a breathalyser test for alcohol. One of those police officers had identified himself as Officer D.I. The applicant further argued that it was not true that he had been speeding on that occasion or running away from the police, because, as a lawyer, he had never acted contrary to official orders and he had known that the police had frequently checked traffic in the area, so he had been driving slowly. 8. On the basis of the applicant’s challenge to the penalty notice, summary minor-offence proceedings were opened before the Rijeka Minor Offences Court. 9. On 29 April 2014 the applicant made his case before a judge of the Rijeka Minor Offences Court in the presence of his lawyer. He denied the charges against him and reiterated his account of events (see paragraph 7 above). The applicant applied to the judge for the right to put questions to Officer D.I. 10. The trial court summoned D.I. to appear before the court as a witness. However, the next three hearings, scheduled for 3 June and 8 July 2014 and 4 March 2015, were adjourned, because D.I. failed to appear despite proper service of the summons. The applicant and his lawyer duly appeared at those hearings. 11. On 9 June 2014, the applicant’s lawyer filed a submission, in which she challenged the facts of the case. In particular, she reiterated that the applicant had not increased his speed, since that had not even been possible given the configuration of the intersection. Besides, the intersection had not been an appropriate location for the police officer to monitor vehicles and issue orders to drivers, as it had in the given circumstances obviously created ambiguity as to exactly how the applicant should have acted. 12. On 2 April 2015, the trial judge issued a warrant for the compulsory appearance of D.I. and ordered the Rijeka Police Department to bring him to the next hearing scheduled for 14 May 2015. 13. On 11 May 2015 the police informed the trial court that they could not execute the warrant, as D.I. had been transferred to another police force in Slavonski Brod, located approximately 350 km from Rijeka. At the next hearing, the trial judge informed the applicant and his lawyer of this fact. 14. On 21 May 2015 the applicant’s lawyer lodged a submission with the court, in which she stated that the applicant should have the opportunity to put questions to D.I. She noted that, if the trial court were to ask for D.I. to be questioned by another minor offences court by way judicial assistance, that would lead to a breach of the principle of adversarial hearing and the applicant’s right to examine that witness. 15. On 27 May 2015 the trial court sent the case file to the Slavonski Brod Minor Offences Court (Prekršajni sud u Slavonskom Brodu), requesting that it examine D.I. as a witness. The applicant and his lawyer were not informed of that request. 16. On 23 September 2015, D.I. was examined before the Slavonski Brod Minor Offences Court. The applicant and his lawyer were not informed of the hearing. D.I. stated that he recalled the event in question because the applicant had told him that he had been a lawyer. He further stated that the applicant had not complied with the police signal to pull his car in on the right side of the road. Instead, he had first slowed down, but then increased his speed. The police found him through his vehicle registration. 17. At the next hearing held on 11 November 2015, the trial judge read out D.I.’s witness statement (see paragraph 16 above). The applicant’s lawyer challenged D.I.’s testimony, stating that it had been obtained at odds with the applicant’s defence rights and applied for the applicant to be allowed to confront D.I. 18. On 28 January 2016, the trial court found the applicant guilty of failing to comply with the police order, imposed a fine in the amount of HRK 3,000 and ordered him to pay the costs and expenses of the proceedings in the amount of HRK 300. 19. In its reasoning, the court mentioned that the applicant’s lawyer had objected to D.I. being questioned before another court, claiming it would violate the applicant’s right to an adversarial hearing. The court also stated that it had dismissed the applicant’s request to be confronted with D.I. because the facts of the case had been sufficiently established on the basis of the evidence taken. The court based its reasoning entirely on the evidence given by D.I., stating that the offence had been established by his personal observations and that there had been nothing suggesting that his statement had not been credible. 20. The applicant’s appeal against the first-instance judgment was declared inadmissible on 15 February 2016, as there was no possibility of lodging an appeal in summary minor-offence proceeding. That decision was further upheld on 16 March 2016 by the High Minor Offences Court (Visoki prekršajni sud). 21. The applicant then lodged a constitutional complaint against the first-instance judgment, complaining, inter alia, of a breach of his right to a fair trial and of his defence rights. 22. On 7 April 2016, the Constitutional Court (Ustavni sud Republike Hrvatske) declared his constitutional complaint inadmissible as manifestly ill-founded, deeming that there was no constitutional-law issue in the case for the Constitutional Court to decide on. RELEVANT LEGAL FRAMEWORK
23. The relevant provisions of the Minor Offences Act (Prekršajni zakon, Official Gazette no. 107/2007, with further amendments) are set out in the case of Marčan v. Croatia (no. 40820/12, §§ 21-22, 10 July 2014). Section 173 of that Act reads as follows:
Section 173(2)
“A witness or an expert witness who does not have residence or domicile in the geographical jurisdiction of the court conducting the proceedings may also, following and application for judicial assistance, be questioned before a court where the witness or expert witness has domicile or residence.”
24. Section 32 of the Road Traffic Safety Act (Zakon o sigurnosti prometa na cestama, Official Gazette no. 67/2008, with further amendments) provides that road users must comply with instructions on signs or with orders of police officers or other authorised persons who supervise and manage traffic on the roads. A fine in the amount of HRK 3,000 to HRK 7,000 may be imposed on a motor vehicle driver if he or she acts contrary to an instruction on a sign or an order of a police officer or other authorised person. THE LAW
25. The applicant complained that his trial had been unfair because he could not question the only witness against him. He relied on Article 6 §§ 1 and 3 (d) of the Convention which reads, in so far as relevant, as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”
26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 27. The applicant argued that he had been deprived of the opportunity to examine the only witness in his case. Officer D.I.’s testimony should have been given at an adversarial hearing, where he could have put questions to the witness. Although he had expressly applied to be allowed to put questions to that witness, the trial court had asked for judicial assistance from another court, where that witness had been examined in the absence of the defence. Neither the applicant nor his lawyer had been informed that D.I. would be questioned before another court, nor had they been notified of the date, time or place thereof. Throughout the proceedings the applicant had not had a single opportunity to put questions to the said witness, and consequently he had been deprived of an effective opportunity to challenge the credibility of D.I.’s testimony, especially bearing in mind that he had failed to refer to many relevant circumstances of the event, which had been set out in the applicant’s defence, such as that he had allegedly issued other traffic orders to the applicant, or the fact that it was not possible to increase the speed of a car at that intersection. 28. The applicant further argued that there had been no valid reasons not to examine D.I. before the Rijeka Minor Offences Court. D.I.’s coming to Rijeka would not have entailed any difficulties or unnecessarily delay the proceedings, especially taking into account that the trial court had already adjourned a number of hearings owing to his failure to appear without any valid reason. Possible witness travel expenses in the amount of about EUR 30 could not have been an acceptable reason for not allowing the defence to examine the only and crucial witness against the applicant. Lastly, the applicant emphasised that the fine imposed on him had amounted to a half of his monthly salary and that the charges against him had seriously affected his life, considering that he was a lawyer employed by the local municipality. 29. The Government noted that the present case concerned a traffic offence which did not belong to the traditional category of criminal law to which the criminal-head guarantees of Article 6 of the Convention applied with their full stringency. Therefore, as the Court had found in Marčan v. Croatia (cited above), the minor-offence proceedings against the applicant had not called for the application of the stronger criminal-head guarantees of Article 6 of the Convention. Furthermore, the applicant had had the opportunity to challenge the charges against him, to put forward all his relevant defence arguments and to ask to make his case before the relevant court. 30. As regards the examination of D.I., the Government stressed that the trial court had availed itself of the possibility to request judicial assistance from another court, asking it to put questions to D.I., being aware of the distance of 350 km between the residence of the said witness and the trial court in Rijeka and as well of the fact that the witness had already failed to appear before the trial court three times. Insisting on examining D.I. before the Rijeka Minor Offences Court would have caused further delays to the proceedings and unnecessary costs in the amount of at least EUR 60, which had been disproportionate to the overall cost of the summary minor-offence proceedings of about EUR 40. The applicant also only requested to be confronted with D.I., but did not explain the reasons for his request. There had thus been sufficient reasons for examining D.I. before another court in the absence of both the prosecution and the defence. The defence had had an opportunity to object to D.I.’s statement after the trial judge had read it out and, in any event, that statement had not been the sole or decisive evidence on which the applicant’s conviction had been based. 31. General principles regarding the admission of untested incriminating witness evidence in criminal proceedings have been summarised in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011) and Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-31, ECHR 2015). 32. At the outset, the Court would stress that although the criminal law aspect of Article 6 is applicable in the present case, the minor road-traffic offence for which the applicant was convicted, does not as such belong to the traditional categories of criminal law to which the criminal-head guarantees of Article 6 apply with their full stringency (see, amongst others, Marčan, cited above, § 37, with further references). 33. In the Marčan case (cited above, §§ 40-41) the Court found that there was nothing allowing it to conclude that the system of summary minor-offence proceedings, which leaves the decision as to the need to hold an oral hearing or take particular procedural actions with the possible participation of the parties to the judge’s discretion, to be incompatible per se with the guarantees enshrined in Article 6. However, in each case it was necessary to examine whether, in the particular circumstances of the case, the domestic courts’ discretion as to the conduct of the summary minor-offence proceedings had been exercised in a way which was compatible with the requirements of Article 6. 34. In the present case the applicant was found guilty of disobedience of a police order issued by Officer D.I. Accordingly, D.I.’s description of the events constituted the sole and therefore also the decisive evidence on which the national courts’ findings of the applicant’s guilt were based, since no other witnesses gave evidence before the court nor was any further evidence obtained by means of an objective method. 35. The applicant expressly objected to the credibility of D.I.’s observations, challenging in detail the facts of the case and the material elements of the offence in both his written submissions and his defence before the court (see paragraphs 7, 9 and 11 above). He applied to the trial court, asking it to summon and question Officer D.I., and his application was allowed. Moreover, he explicitly objected to the examination of that witness before another court, arguing that it would prevent him from putting questions to that crucial witness. In those circumstances, the Court considers that the present case differs from that of Marčan (cited above §§ 44 and 46), in which the applicant’s arguments during the proceedings before the domestic courts had been of a general nature. It also differs from the case of Bojić v. Croatia ((dec.), no. 48134/15, §§ 27-28, 12 June 2018), in which the applicant never requested that the police officer who had observed the minor offence she had been charged with be heard as a witness in the case. 36. As regards the manner in which evidence from D.I. had been taken, there is no indication in the case file that he ever presented any reasons why he had been prevented from appearing before the Rijeka Minor Offences Court or that he asked to be questioned before the Slavonski Brod Minor Offences Court. Nor did the trial court refer to any relevant justification for that witness not to testify before that court in the presence of the defence. In the Court’s view, the facts that Officer D.I. resided in another town and that insisting on his appearance before the trial court would have caused additional costs in the amount of some EUR 60 could not justify the failure to allow the applicant an opportunity to confront and cross-examine the only witness in his case, whose statement was of decisive importance for his conviction (compare Mesesnel v. Slovenia, no. 22163/08, § 39, 28 February 2013). 37. The Court further notes that, although neither the applicant nor his lawyer had the opportunity to examine D.I. at any stage of the proceedings, there is no indication in the first-instance judgment that the trial court approached D.I.’s statement with any specific caution, or that the fact that the witness had been examined in the absence of the defence prompted the court to attach less weight to his evidence (compare, for instance, Al-Khawaja and Tahery, cited above, § 157; Bobeş v. Romania, no. 29752/05, § 46, 9 July 2013; and Paić v. Croatia, no. 47082/12, § 43, 29 March 2016). On the contrary, the court accepted D.I.’s. untested evidence as credible and refused the applicant the possibility to confront him, concluding that the facts of the case had been sufficiently established on the basis of the evidence taken. 38. Furthermore, despite the fact that the applicant explicitly requested an opportunity to put questions to D.I., he or his lawyer were never invited to be party to the hearing scheduled before the Slavonski Brod Minor Offences Court, either in person or by means of a video-link. There is also no indication that the applicant or his lawyer were ever invited to put questions to D.I. in writing (see Paić, cited above, § 47, with further references therein). 39. While it is true that the applicant had the opportunity to give his own version of the events during the trial and that he availed himself of that possibility, that fact alone could not in any event be regarded as a sufficient counterbalancing factor to compensate for the handicap under which the defence laboured (see Paić, cited above, § 51). 40. In the light of the foregoing, and examining the fairness of the proceedings as a whole, the Court notes that the trial court did not have before it any additional incriminating evidence regarding the offence of which the applicant was found guilty. Furthermore, neither the applicant nor his lawyer were given an opportunity to have a confrontation with and put questions to D.I. or to have him orally examined in the applicant’s presence at any stage of the proceedings (see Nechto v. Russia, no. 24893/05, § 125, 24 January 2012; and Vronchenko v. Estonia, no. 59632/09, § 65, 18 July 2013; and contrast Chmura v. Poland, no. 18475/05, § 56, 3 April 2012; Gani v. Spain, no. 61800/08, § 48, 19 February 2013; and Aigner v. Austria, no. 28328/03, § 41, 10 May 2012). The applicant was unable to test the truthfulness and reliability of the evidence given by D.I. by means of cross-examination despite the fact that it was the sole evidence against him (see Al-Khawaja and Tahery, cited above, §§ 162 and 165). Consequently, he was convicted on the basis of evidence in respect of which his defence rights had been restricted, which rendered the trial as a whole unfair. 41. The Court considers that the above deficiencies rendered the trial as a whole unfair and that there has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention. 42. 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.”
43. The applicant claimed 2,300 Croatian kunas (HRK – approximately 313 euros (EUR)) in respect of pecuniary damage relating to the fine and cost of the proceedings which he had been obliged to pay. He also claimed EUR 5,000 in respect of non-pecuniary damage. 44. The Government contested those claims. 45. The Court cannot speculate on the outcome of the proceedings concerned had there been no violation of the Convention (see Dvorski v. Croatia [GC], no. 25703/11, § 117, ECHR 2015); it therefore rejects the claim in respect of pecuniary damage. In respect of non-pecuniary damage, making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 1,500, plus any tax that may be chargeable. 46. The applicant also claimed EUR 4,553 for the costs and expenses incurred before the Court. 47. The Government contested that claim. 48. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the costs incurred before the Court. 49. 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,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:
(i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 10 December 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata Degener Alena PoláčkováDeputy RegistrarPresident