FIRST SECTION

DECISION

Application no. 46657/15 Tomo ĆAĆIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 4 February 2020 as a Committee composed of:

Tim Eicke, President, Jovan Ilievski, Raffaele Sabato, judges,

and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 14 September 2015,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1 . The applicant, Mr Tomo Ćaćić, was a Croatian and Serbian national who was born in 1947 and lived in Beograd. He was represented before the Court by Mr Ð. Dozet, a lawyer practising in Belgrade.

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

3 . The applicant complained, under Article 6 of the Convention, that he was not able to obtain a rehearing after his conviction in absentia , and that he was not effectively represented by a legal aid lawyer during the proceedings conducted in his absence.

4 . On 15 September 2016 the Government were given notice of the above complaints and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The Government of Serbia did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention).

5 . The applicant died on 25 March 2018 and on 10 February and 26 March 2019 the applicant ’ s representative informed the Court that his statutory heirs, Ms Lj. Ćaćić, Ms S. Reković and Ms T. Gostimirović, wished to pursue the application (see paragraph 35 below).

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

7 . On 26 May 1993 the Gospić County State Attorney ’ s Office ( Okružno državno odvjetništvo u Gospiću ) indicted the applicant and fourteen other persons before the Gospić County Court ( Okružni sud u Gospiću ) on charges of war crimes against the civilian population.

8 . On 12 July 1993 the Gospić County Court ordered that the applicant, together with thirteen of the other accused, be tried in absentia as they were not available to the Croatian authorities.

9 . During the proceedings the applicant and the other accused were represented by a legal aid lawyer. On 21 July 1993 the applicant was convicted as charged and sentenced to fifteen years ’ imprisonment.

10 . The applicant ’ s legal aid lawyer lodged an appeal with the Supreme Court ( Vrhovni sud Republike Hrvatske ) challenging the sentence imposed. On 24 February 1994 the Supreme Court dismissed the appeal and upheld the first-instance judgment. The applicant ’ s conviction thus became final.

11 . On 25 January 2010 the applicant asked the Gospić County Court to reopen the proceedings on the grounds that he had learned about the final judgment of 21 July 1993 only on 12 March 2009 and that he had not committed the crime at issue. He asked that a number of witnesses be heard on his behalf. He also contended that during the proceedings conducted in his absence he had not been effectively represented.

12 . On 15 May 2013 a three-judge panel of the Rijeka County Court ( Županijski sud u Rijeci ) refused the applicant ’ s request on the grounds that the proposed evidence could not have led to his acquittal. It also refused to apply the relevant domestic provision granting an automatic reopening of proceedings conducted in absentia on the grounds that the applicant lived in Serbia and was not available to the Croatian authorities.

13 . The applicant lodged an appeal with the Supreme Court, arguing that the proposed evidence alone and in relation to the previous evidence indicated his innocence of the crime of which he had been convicted and that during the proceedings conducted in his absence he had not been effectively represented.

14 . On 23 September 2014 the Supreme Court dismissed the applicant ’ s appeal and upheld the decision of the Rijeka County Court.

15 . The applicant lodged a complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), arguing that he had not been able to obtain a retrial and that during the proceedings conducted in his absence he had not been effectively represented.

16 . On 19 February 2015 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible on the grounds that it concerned proceedings for the reopening of the criminal proceedings and not any criminal charge against the applicant. This decision was served on the applicant on 25 March 2015.

17 . On 12 November 2013 the applicant asked the Rijeka County State Attorney ’ s Office ( Županijsko državno odvjetništvo u Rijeci ) to seek reopening of the criminal proceedings against him arguing that the evidence indicated his innocence of the crime of which he had been convicted.

18 . Following the applicant ’ s request the Rijeka County State Attorney ’ s Office and the Office of the War Crimes Prosecutor of Serbia ( Tužilaštvo za ratne zločine Republike Srbije ) interviewed several witnesses proposed by the applicant.

19 . On 5 November 2015 the Rijeka County State Attorney ’ s Office forwarded the applicant ’ s request and the witnesses ’ statements to the Rijeka County Court.

20 . On 23 November 2016 the Rijeka County Court declared the applicant ’ s request inadmissible. It held that the applicant had submitted his request to an authority who had no competence to examine it and that in any event the proposed evidence could not have led to his acquittal.

21 . The applicant lodged an appeal and on 20 April 2017 the Supreme Court quashed the Rijeka County Court ’ s decision and remitted the case to that court.

22 . On 23 February 2018 the Rijeka County Court invited the applicant and the Rijeka County State Attorney ’ s Office to clarify which one of them had sought reopening of the criminal proceedings against the applicant and on the basis of which legal grounds and evidence.

23 . On 14 March 2018 the Rijeka County State Attorney ’ s Office asked the Rijeka County Court to reopen the proceedings against the applicant. It based its request on Article 501 § 1(3) of the Code of Criminal Procedure, submitting statements of nine witnesses.

24 . On 20 April 2018 the Rijeka County Court scheduled a hearing for 9 May 2018 and invited witnesses M.J., P.Č., B.B., K.T. and S.P. to attend. On 9 May 2018 it heard witnesses B.B. and S.P., and on 6 June 2018 it heard witness K.T.

25 . On 1 June 2018 the Ministry of Justice of the Republic of Croatia ( Ministarstvo pravosuđa Republike Hrvatske ) informed the Rijeka County Court that the applicant had died on 25 March 2018.

26 . On 12 December 2018 the Rijeka County Court decided to hear two further witnesses and to forward the case file to the Rijeka County State Attorney ’ s Office for their observations on the possibility of retrial.

27 . On 13 March 2019 the Rijeka County State Attorney ’ s Office replied that they considered that the request for a retrial should be granted.

28 . On 17 April 2019 the Rijeka County Court granted the Rijeka County State Attorney ’ s Office ’ s request that the proceedings against the applicant be reopened deeming that the gathered evidence warranted a retrial. It noted that under Article 504 § 1 of the Code of Criminal Procedure the competent State Attorney could lodge a request for reopening of the proceedings even after the convicted person ’ s death.

29 . On 6 June 2019 the president of Rijeka County Court appointed a defence counsel to represent the deceased applicant.

30 . The proceedings are currently pending before the trial court.

31 . The provision of the Code of Criminal Procedure relevant to the proceedings for the reopening of the proceedings against the applicant ( Zakon o kaznenom postupku , Official Gazette, nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012, 56/2013, 154/2013, 152/2014 and 70/2017) reads:

Article 504(1)

“A request for the reopening of proceedings may be lodged by the parties or the defence lawyer, and after the convicted person ’ s death, [it may be lodged] by the State Attorney or persons referred to in Article 464(2) of this Code.”

Article 508(5)

“In its judgment rendered in the new proceedings, the court shall set aside the previous judgment partially or in whole, or rule that it remain in force. ...”

32 . The other relevant domestic law and practice are set out in the case of Sanader v. Croatia , no. 66408/12, §§ 36-49, 12 February 2015.

COMPLAINTS

33 . The applicant complained under Article 6 of the Convention that he was not able to obtain a rehearing after his conviction in absentia , and that that during the proceedings conducted in his absence he had not been effectively represented.

THE LAW

34 . The Court must first address the issue of the applicant ’ s heirs ’ entitlement to pursue the application originally introduced by the applicant, who died on 25 March 2018.

35 . In his letters of 10 February and 26 March 2019 the applicant ’ s representative informed the Court that the applicant ’ s wife and two daughters, Ms Lj. Ćaćić, Ms S. Reković and Ms T. Gostimirović, wished to pursue the application (see paragraph 5 above). He submitted a decision issued by a notary public of 2 August 2018 declaring Ms Lj. Ćaćić, Ms S. Reković and Ms T. Gostimirović to be the applicant ’ s statutory heirs. The Government proposed that the case be struck out of the Court ’ s list of cases.

36 . Having regard to its case-law on the subject (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII), the Court holds that the applicant ’ s heirs have a legitimate interest in pursuing the present proceedings in the applicant ’ s stead. However, the Court ’ s examination is limited to the question of whether or not the complaints, as originally submitted by Mr Tomo Ćaćić, disclose a violation of the Convention (ibid. and compare Miščević v. Croatia (dec.) [Committee], no. 72174/13, 16 January 2018).

37 . The applicant relied on Article 6 §§ 1 and 3 (c) of the Convention, which reads as follows:

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

...

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; ...”

38 . The Government contended that the application had not been lodged with the six-month time-limit which was to be calculated from the date when the Supreme Court ’ s decision of 23 September 2014 was served on the applicant since his constitutional complaint had been declared inadmissible (see paragraphs 14-16 above). They further contended that the applicant had not exhausted the domestic remedies since before bringing his case before the Court he ought to have waited that the proceedings concerning his second request for reopening of the proceedings became final (see paragraph 17 above). On the merits they argued that the proceedings conducted in the applicant ’ s absence had been fair, that his legal representation during those proceedings by a legal aid lawyer had been adequate, and that the two procedural means for reopening the proceedings conducted in absentia set in the Code of Criminal Procedure offered the applicant reasonable prospects of ha ving the charges against him re ‑ examined.

39 . The applicant maintained that the proceedings conducted in his absence had not been fair and that the evidence submitted in support of his request for the reopening of the proceedings had warranted his acquittal. His wrong conviction for war crime had damaged his reputation and honour and he sought the Court to award him pecuniary and non-pecuniary on that account. The applicants ’ heirs contended that they had also suffered non ‑ pecuniary damage since their husband and father had died as a “convicted war criminal”, even though he was innocent.

40 . The Court does not have to address all the issues raised by the parties. In the light of the new developments brought to its attention, it considers that, for the reasons set out below, there is no objective justification for continuing to examine the applicant ’ s complaints, and that it is thus appropriate to apply Article 37 § 1 of the Convention, which provides as follows:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

41 . In order to ascertain whether Article 37 § 1 (b) applies to the present case, the Court must answer two questions: firstly, whether the circumstances complained of directly by the applicant still obtain; and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002; Sisojeva and Others v. Latvia , no. 60654/00, § 97, 16 June 2005; and Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 48, 7 December 2007).

42 . The Court notes that, in the present case, the applicant complained about the refusal of the domestic authorities to reopen proceedings conducted in his absence in which he was sentenced to fifteen years ’ imprisonment, and about the alleged deficiency of his legal representation during those proceedings by a legal aid lawyer who, according to the applicant, never attempted to contact him or to plead any relevant arguments in his favour.

43 . In the case of Sanader v. Croatia (no. 66408/12, §§ 75-96, 12 February 2015), the Court found, after a detailed examination of the Croatian procedural means for reopening proceedings conducted in absentia set in the Code of Criminal Procedure, a violation of Article 6 § 1 of the Convention on account of the applicant ’ s inability to obtain a rehearing of his case in full respect of his defence rights. Having found a violation of Article 6 on that account, it considered it unnecessary to reach a separate decision as to the applicant ’ s complaints about the inadequacy of his legal representation (ibid. § 97-98).

44 . The Court notes that in the present case, after the domestic authorities dismissed the applicant ’ s request to reopen the proceedings on the grounds that the proposed evidence could not have led to his acquittal and refused to apply the relevant provision of the domestic law granting the applicant an automatic rehearing (see paragraphs 11-16 above), the applicant and the competent prosecutor lodged another request to reopen the proceedings which was finally granted (see paragraphs 17-28 above). The reopened proceedings, whose purpose is to set aside a wrongful conviction should the domestic courts so find (see Magnitskiy and Others v. Russia , nos. 32631/09 and 53799/12, § 282, 27 August 2019 ) are currently pending before the trial court and the applicant, now deceased, is being represented by a defence lawyer (see paragraphs 29 and 30 above). It therefore follows that the circumstances of which the applicant complained no longer obtain and that the first criteria under Article 37 § 1 (b) of the Convention (see paragraph 41 above) has been met.

45 . The Court notes further that reopening of the proceedings was precisely the purpose of the applicant ’ s application to the Court. Indeed, he contended that he had been wrongfully convicted and that therefore he should be awarded damages (see paragraph 39 above). However, it is not for the Court to rule on his guilt or innocence for the crime charged of; in the reopened proceedings which are pending before the trial court the domestic courts shall decide whether the applicant ’ s conviction can be set aside partially or in whole, or fully remain in force (see paragraph 32 above).

46 . The Court is satisfied that the applicant obtained a retrial and that in those circumstances his complaint about the inadequacy of his legal representation in the proceedings conducted in his absence became obsolete. The Court therefore considers that, in the present case, the second criteria under Article 37 § 1 (b) of the Convention (see paragraph 41 above) has also been met.

47 . In view of the above, the Court concludes that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention. Furthermore, it is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of this part of the application (Article 37 § 1 in fine ).

48 . Accordingly, the application should be struck out of the Court ’ s list of cases.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases.

Done in English and notified in writing on 27 February 2020 .

Renata Degener Tim Eicke Deputy Registrar President