FIRST SECTION

DECISION

Application no. 53561/17 Mladen MIKOLIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 23 March 2021 as a Committee composed of:

Péter Paczolay , President, Gilberto Felici, Raffaele Sabato, judges, and Attila Tepl á n , Acting Deputy Section Registrar ,

Having regard to the above application lodged on 17 July 2017,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Mladen Mikolić , is a Croatian national who was born in 1976 and lives in Belišće . He was represented before the Court by Mr D. Pejić , a lawyer practising in Osijek.

2 . The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik .

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 27 February 2013 the State Attorney ’ s Office for the Suppression of Corruption and Organised Crime ( Ured za suzbijanje korupcije i organiziranog kriminaliteta – hereinafter “the State Attorney ’ s Office”) indicted the applicant and several other individuals in the Osijek County Court ( Županijski sud u Osijeku ) on charges of abuse of power and authority.

5 . The applicant, a police officer, was indicted on charges of incitement to abuse of authority for inciting another police officer, T.C., to enable a third person, Z.S., to import from Serbia to Croatia an engine block for a motorcycle without submitting it to any border or customs controls or payment of import duties, although there had been no purchase receipt or any other document showing the origin of the engine block. The indictment further stated that Z.S. had purchased the engine block for a motorcycle owned by the A. company, of which he was the owner and managing director.

6 . The indictment was based on testimonies and physical evidence, including reports of the customs supervision carried out by the Customs Administration and secret surveillance recordings of communications between the applicant, T.C. and Z.S.

7 . On 14 October 2013 the applicant ’ s lawyer lodged an objection to the indictment in which he pointed out that the offence with which the applicant had been charged was not a criminal offence because, given the low pecuniary value of the engine block, there had been no need to subject it to the calculation and payment of import duties. His subsequent proposal to obtain an expert valuation of the imported engine block was denied on the grounds that that fact had already been established.

8 . At a hearing held on 30 September 2013 the trial court read out relevant material evidence from the case file including the report of the customs supervision carried out by the Customs Administration. That report determined that the engine block had been imported for the purposes of the A. company and that it had subsequently been fitted into a motorcycle owned by that company. Thus, the goods in question were of a commercial character, in which case the simplified procedure for clearing goods for free circulation at border crossings was not applicable, nor was the exemption from customs duties and value-added tax (VAT). In the above-mentioned situation, in accordance with sections 74 and 91 of the Customs Act (see paragraph 16 below) , a person carrying such goods should be referred to the regular customs clearance procedure, which implied submitting a written customs declaration along with other necessary commercial and customs documents for clearing the goods for free circulation.

9 . The customs report further established that, even though engine blocks for motorcycles were classified under the 0% customs rate (the “free” rate), they were nonetheless subject to VAT at a rate of 25% upon clearance for free circulation. According to internet research, the value of a second-hand engine ranged between HRK 1,200 and HRK 3,600. The failure to calculate and charge import duties (specifically VAT) on these goods had thus caused damage to the State budget in an amount between HRK 300 and HRK 900. The applicant ’ s lawyer did not object to that evidence.

10 . At the same hearing the applicant ’ s lawyer reiterated the request to obtain a valuation of the engine block by a competent expert. The trial court dismissed it as a means aimed at unnecessarily prolonging the proceedings and reiterated that the said value had been established by the authorised customs office within the framework of customs supervision.

11 . On 23 October 2013 the applicant was convicted as charged and given a suspended sentence. The trial court concluded that the applicant ’ s guilt had been established on the basis of several pieces of evidence, including secret surveillance recordings of communications between the applicant, T.C. and Z.S., which showed that on several occasions conversations between them had taken place with a view to enabling Z.S. to import the engine block while avoiding customs controls. Furthermore, it followed from statements by another police officer, L.C., and a customs officer, Z.G., and from the police report on the secret surveillance of the event in question that the engine block had not been checked by any customs officer at the border. Relying on the customs supervision carried out by the Customs Administration (see paragraph 9 above), the trial court further concluded that the damage to the State budget amounted to at least HRK 300. It also stated that it had dismissed the applicant ’ s request to obtain an expert valuation of the engine block given that its value had already been determined within the framework of the customs supervision.

12 . The applicant appealed, arguing, inter alia , that the trial court should have commissioned an expert valuation of the engine block, which would have shown that its value was less than HRK 1,000, and that it was therefore exempt from customs duties and accordingly no criminal offence had been committed. He challenged the fact that the court had determined the value of the engine block by relying solely on the customs evaluation and argued that the court had wrongly determined that the pecuniary gain had been acquired by a private individual when it was evident that the motorcycle in question had belonged to the A. company.

13 . On 20 May 2015 the Supreme Court ( Vrhovni sud Republike Hrvatske ) upheld the first-instance judgment, concluding that there had been no need to obtain a separate expert valuation of the engine block, since the first-instance court had correctly concluded, on the basis of the results of the customs supervision, that VAT amounting to at least HRK 300 should have been charged on the imported engine block. In that regard, the Supreme Court pointed out that the lowest estimated value (HRK 1,200) of the goods had been used as the calculation base which favoured the defendant.

14 . The applicant ’ s subsequent constitutional complaint alleging, inter alia , that he could not have taken part in, or challenge the outcome of, the customs supervision, was declared inadmissible as manifestly ill-founded by the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 11 January.

15 . The relevant provisions of the Criminal Code ( Kazneni zakon , Official Gazette nos. 125/11 and 144/12) read as follows:

Article 37

“1. Whoever deliberately incites another to commit an offence shall receive the same penalty as if he had committed it himself ...”

Article 291

“1. An official or person in a position of responsibility who uses his or her position of power or authority, oversteps his or her authority, or fails in his or her duties, and thereby acquires a certain gain or causes damage to another, shall be punished by a term of imprisonment of six months to five years ...”

16 . The relevant parts of sections 74 and 91 of the Customs Act ( Carinski zakon , Official Gazette no. 94/99, with further amendments), as in force at the material time, provided that with regard to the regular customs clearance procedure, a written customs declaration had to be lodged using a specific form and providing all the necessary details for the implementation of the provisions relating to the customs procedure for which the goods were declared. The declarant was obliged to enclose with the declaration all the documents necessary for the application of the regulations relating to the customs procedure for which the goods were declared. The release of goods for free circulation involved, inter alia , the payment of customs duties and other charges including VAT and special taxes, which the customs office was required to charge on importation.

17 . Pursuant to the relevant part of section 3 of the Customs Administration Act ( Zakon o carinskoj službi , Official Gazette nos. 83/09, 49/11 and 34/12), the Customs Administration performs, inter alia , the following tasks: carries out customs supervision of foreign goods; conducts customs procedures; determines the basis for calculating customs duties, special taxes, VAT and other prescribed duties; calculates customs duties, taxes and other prescribed duties; and conducts investigative measures entrusted to it by the State Attorney ’ s Office in accordance with the Code of Criminal Procedure.

18 . Pursuant to sections 4 and 6 of the Regulations on the Conditions and Procedures for Exemption from Customs Duties ( Uredba o uvjetima i postupcima za ostvarivanje osloboÄ‘enja od plaćanja carine , Official Gazette nos. 5/07 and 153/09), goods carried in the personal luggage of travellers are exempt from customs duties when they are of “a non ‑ ‑ commercial character”, i.e. any items that the traveller or his or her family would logically need for personal use or that are intended as gifts, provided that the type and quantity of goods indicate that they are not being imported for commercial purposes. Other goods of non-commercial character are exempt from customs duties, provided that their total value does not exceed HRK 1,000. The relevant part of section 12 of the Value ‑ Added Tax Act ( Zakon o porezu na dodanu vrijednost , Official Gazette no. 47/95, with further amendments), as in force at the time, provided that exemption from VAT applied to the import of personal luggage and goods of a non-commercial character brought in from abroad by travellers, subject to the nature, value and quantity of goods as set out in customs legislation.

COMPLAINT

19 . The applicant complained under Article 6 § 1 of the Convention that the principle of equality of arms had been violated because his request to obtain an expert opinion had been dismissed.

THE LAW

20 . The applicant complained that his right to a fair trial had been infringed in breach of Article 6 § 1 which, in so far as relevant, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

21 . The Government stressed that the applicant had been given the opportunity to take part in adversarial proceedings during which he had not been put in a less favourable position than the opposing party. The value of the engine block in question had been established in a report by the Customs Administration within the limits of its jurisdiction and in accordance with the relevant legal provisions (see paragraph 17 above). The report in question had been the result of an independent procedure that had been conducted according to the rules of the profession and raised no doubts with regard to the procedure for determining the value of the goods. Furthermore, the domestic courts had provided sufficient reasons for dismissing the applicant ’ s request for an expert valuation of the goods. No exemption from import duties could have been applied given that the imported engine block had been of a commercial character. In any case, the value of the engine in question had not been relevant to the domestic courts ’ findings that the applicant ’ s actions had been unlawful and had constituted the criminal offence of inciting to abuse of authority.

22 . The applicant maintained that the value of the imported engine block had been the decisive factor for the assessment of his criminal liability because there would have been no criminal offence had the value of the goods in question been determined to amount to less than HRK 1,000 . The domestic courts had accepted the value of the engine block as established by the Customs Administration on the initiative of the competent prosecutor. As this had been done outside the criminal proceedings, the applicant had not participated in, and accordingly could not have challenged, that valuation. Thus, he had asked the trial court to obtain an expert witness report with a view to having the precise value of the engine block established by a professional and objective expert. The ensuing refusal of the trial court to allow the evidence he had proposed had prevented him from proving a fact that could have led to his acquittal.

23 . The Court reiterates that the principle of equality of arms, which is one element of the broader concept of fair trial, requires “a fair balance between the parties”: each party must be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see Jasper v. the United Kingdom [GC], no. 27052/95, § 51, 16 February 2000).

24 . The Court reiterates in this connection that Article 6 does not impose on domestic courts an obligation to order an expert opinion or any other investigative measure solely because it is sought by a party. It is primarily for the national court to decide whether the requested measure is relevant and essential for deciding a case (see, mutatis mutandis , H. v. France , 24 October 1989, §§ 60-61, Series A no. 162-A ).

25 . The general principles concerning the examination of defence witnesses have been clarified in Murtazaliyeva v. Russia ([GC], no. 36658/05 , §§ 150-86, 18 December 2018), and are applicable, mutatis mutandis , to an applicant ’ s complaint concerning the refusal of the domestic courts to obtain an expert witness report (see Abdullayev v. Azerbaijan , no. 6005/08, § 60, 7 March 2019).

26 . Turning to the circumstances of the present case, the Court notes that the applicant ’ s lawyer did not explain to the trial court with sufficient clarity why an expert valuation was crucial and how it could strengthen the position of the defence or have had a decisive impact on the outcome of the case (compare, for example, Gregačević v. Croatia , no. 58331/09, § 64, 10 July 2012 ) . It is true that the applicant requested that the trial court obtain an expert valuation of the engine block ’ s value (see paragraphs 7 and 10 above). However, he gave little more than a brief indication of the relevance of the proposed evidence, arguing that the engine block in question should have been exempt from customs duties because of its low value and the consequent absence of a criminal offence. In doing so, the applicant failed to substantiate how exactly the engine block was exempt from the application of import duties, considering that it was of a commercial nature, a fact which was established in the domestic proceedings and not disputed by the applicant before any of the court instances (see paragraphs 8 , 12 and 18 above).

27 . As regards the reasons given by the trial court for declining to obtain the expert valuation, in the Court ’ s view they were appropriate in the circumstances of the case and adequate in their scope and level of detail with regard to the reasons advanced by the defence for its request (see paragraphs 7 , 10 and 11 above) . Moreover, the Supreme Court duly addressed the applicant ’ s argument concerning the trial court ’ s refusal to obtain another expert evidence (see paragraph 13 above), concluding that the first-instance court had correctly assessed all the relevant circumstances as regards the value of the goods in question and had applied them in a manner favourable to the defence (see Kadagishvili v. Georgia , no. 12391/06, § 165, 14 May 2020).

28 . The applicant further argued before the Court that the value of the engine had been established in customs proceedings in which he had not participated, and which accordingly he could not have challenged. However, it transpires from the case file that the applicant raised this argument for the first time in his constitutional complaint (see paragraph 14 above). He did not object to the customs supervision report when it was presented as evidence before the first-instance court, nor did he raise this issue in his appeal to the Supreme Court (see paragraphs 9 and 12 above). Accordingly, despite being represented by a lawyer, the applicant failed to raise an arguable complaint or to submit any evidence before the trial and the appeal courts which could have cast doubt on the objectivity and credibility of the value of the engine as assessed by the Customs Administration within its jurisdiction and in accordance with the relevant legal provisions (see paragraph 17 above) and which may have thus merited further clarification (see, for example, Wierzbicki v. Poland , no. 24541/94, § 44, 18 June 2002).

29 . Lastly, the Court notes that the applicant ’ s conviction was based on a large body of corroborating evidence (see paragraph 11 above), whereas the Court is satisfied that the value of the goods in question was indeed not crucial for the determination of his guilt and, accordingly, could arguably not have led to an acquittal or any other outcome favourable to the applicant (see Gregačević , cited above, § 64, and Murtazaliyeva , cited above, §§ 175 ‑ 76, and, by contrast, Topić v. Croatia , no. 51355/10, § 45, 10 October 2013, and Polyakov v. Russia , no. 77018/01, §§ 35-36, 29 January 2009).

30 . Thus, the Court considers that, in the circumstances of the present case, the refusal to obtain expert evidence did not undermine the overall fairness of the criminal proceedings against the applicant in a manner contrary to Article 6 § 1 of the Convention.

31 . It follows that the application is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 April 2021 .

Attila Tepl á n Péter Paczolay Acting Deputy Registrar President