SECOND SECTION

DECISION

Application no . 33137/14 Branimir GLAVAÅ against Croatia

The European Court of Human Rights (Second Section), sitting on 13 September 2016 as a Committee composed of:

Paul Lemmens, President, Ksenija Turković , Jon Fridrik Kjølbro , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 23 April 2014,

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 Branimir Glavaš , is a national of Croatia and Bosnia and Herzegovina, who was born in 1956 and lives in Osijek. He was represented before the Court by Ms V. Drenški Lasan and Mr R. Kova č , lawyers practising in Zagreb and Osijek respectively.

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

The circumstances of the case

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

1. Criminal proceedings

4. By a decision of 17 May 2006 the investigation judge of the Zagreb County Court ( Županijski sud u Zagrebu ) at the request of the Zagreb County State Attorney ’ s Office ( Županijsko državno odvjetništvo u Zagrebu ) opened investigation against the applicant finding that there was a reasonable suspicion that he in 1991 had detained, tortured and killed Serbian civilians in town of Osijek, and thereby committed war crimes against civilian population.

5. On 9 May 2007 the same State Attorney ’ s Office indicted the applicant before the same court for having committed war crimes against civilian population, and thereby instituted criminal proceedings against him .

6. By a judgement of 7 May 2009 the Zagreb County Court found the applicant guilty as charged and sentenced him to ten years ’ imprisonment.

7. By a judgment of 2 June 2010 the Supreme Court ( Vrhovni sud Republike Hrvatske ) allowed an appeal by the applicant in part and reduced his sentence to eight years ’ imprisonment.

8. In the period between 3 September 2010 and 1 December 2010 the applicant lodged altogether four constitutional complaints with the Constitutional Court ( Ustavni sud Republike Hrvatske ) against the Supreme Court ’ s judgment.

9. By a decision of 12 January 2015 the Constitutional Court quashed the contested judgement and remitted the case to the Supreme Court.

10. In the fresh proceedings, by a decision of 7 June 2016 the Supreme Court quashed the Zagreb County Court ’ s judgment of 7 May 2009 and remitted the case.

11. The proceedings are currently pending before the Zagreb County Court.

2. Relevant facts concerning the friendly-settlement proceedings before the Court

12. On 23 April 2014 the applicant lodged his application with the Court.

13. By letter of 14 January 2015 the applicant was informed that on 9 January 2015 the Acting President of the Section to which the case had been allocated had decided that notice of the application should be given to the Government. Enclosed were:

- the instructions on the procedure that the applicant was asked to follow; and

- friendly settlement declarations (in the light of the jurisprudence and practice of the Court, it appeared that the case could have been settled if the Government had accepted the terms of those declarations).

14. The relevant part of those instructions reads as follows:

3. Friendly settlements:

“In the light of the jurisprudence and practice of the Court, it appears that a case such as this one could be settled if the parties accepted the terms of the enclosed declaration and, in particular, if the Government made a payment to the applicant to cover any damages, together with any costs and expenses incurred

You are invited to inform the Registry of the Court (see deadline in the margin) whether the applicant accepts this proposal. If so, you are invited to return the enclosed declaration, duly dated and signed. A letter in the same terms has been sent to the Government and you will find enclosed a copy of the draft declaration sent to them.

If the parties accept the proposal and the terms of the declarations, the Court could then decide to strike the application out of its list in accordance with Article 39 of the Convention.

There is a requirement of strict confidentiality in respect of friendly settlement negotiations under Rule 62 § 2, and any proposals or submissions in this respect should be set out in a separate document, the content of which must not be referred to in any submissions made in the context of the main proceedings.”

15. By a letter dated 10 February 2015 the Government informed the Court that they could not accept the friendly settlement in the present case.

16. By a letter of 24 February 2015 the Court notified the applicant about the Government ’ s position suggesting that there was no basis for reaching a friendly settlement.

17. By a letter of 27 February 2015 the applicant also declined friendly settlement.

18. By a letter of 5 March 2015 the Government submitted that the applicant had not respected the confidentiality of friendly-settlement negotiations because on 4 March 2015 he had disclosed to the media the contents of the Court ’ s friendly-settlement proposal. In support of their allegations, the Government enclosed copies of the articles published on 5 March 2015 on the websites of several daily newspapers such as Jutarnji list , Slobodna Dalmacija and 24 sata containing the applicant ’ s public statements.

19. Those articles, inter alia , reported that the applicant in his public speech given on 4 March 2015 during campaign for the parliamentary elections referred to the contents of friendly settlement negotiations before the Court.

20. In particular, the relevant part of the articles published in Jutarnji list and Slobodna Dalmacija , reads as follows:

“ ‘ I was offered a friendly settlement with the Republic of Croatia of 2,500 euros as compensation and costs of proceedings. I said: No! I said I wanted a judgement in which it would be written that the Republic of Croatia was at fault, that it had violated my human, constitutional and international rights and that it had to pay me one single euro in compensation. I am not interested in any kind of pecuniary redress but only in legality and morality of the judgment in Strasbourg, and in finding the Republic of Croatia responsible. By offering me a friendly settlement, the International Court already acknowledged that the Republic of Croatia was responsible and that it had violated my human rights, however, I insist that this be acknowledged by a judgement as well. ’ said Glavaš at the campaign gathering of [his political party] in Baranjsko Petrovo Selo ’ ”

21. The relevant part of the article published in 24 sata reads as follows:

“In his speech he mentioned a curiosity from two weeks ago when they called him from the Strasbourg International Court and informed him of the judgement in his favor against the Republic of Croatia [and] offering him a friendly settlement of 2,500 euros.

‘ I declined that and told them I wanted a judgement in which it would be written ‘ the Republic of Croatia is responsible ’ and that one single euro would suffice as compensation. ”

22. On 9 March 2015 the Government ’ s letter of 5 March 2015 (see paragraph 18 above) was forwarded to the applicant, who was also requested to comment on it and submit an explanation for the alleged breach of the confidentiality of friendly-settlement negotiations.

23. By a letter dated 19 March 2015 the applicant rejected the Government ’ s allegations (see paragraph 27 below).

COMPLAINT

24. The applicant complained under Article 6 § 1 of the Convention about the excessive length of the above criminal proceedings in their part before the Constitutional Court.

THE LAW

1 . The parties ’ submissions

25. The Government argued that, by disclosing the exact terms of the friendly-settlement proposal to the media, the applicant had breached the confidentiality of friendly-settlement negotiations, in contravention of Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, which read as follows:

Article 39 of the Convention

“1. At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto.

2. Proceedings conducted under paragraph 1 shall be confidential.”

Rule 62 § 2 of the Rules

(Friendly settlement)

“In accordance with Article 39 § 2 of the Convention, the friendly-settlement negotiations shall be confidential and without prejudice to the parties ’ arguments in the contentious proceedings. No written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings.”

26. The Government therefore invited the Court to either stri k e the application out of its list of cases under Article 37 of the Convention or declare it inadmissible as an abuse of the right of application under Articles 34 and 35 of the Convention.

27. The applicant submitted that he had not made the impugned statements reported by the media and that he had not authorised publication of the relevant media articles. He further argued that, in any event, the negotiations between the parties had ended before he had allegedly made those statements, as by that time both parties had informed the Court that there was no basis for reaching a friendly-settlement (see paragraphs 12-17 and 19-21 above).

2. The Court ’ s assessment

28. According to Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court friendly-settlement negotiations are confidential. This rule is absolute and does not allow for an individual assessment of how much detail was disclosed (see Lesnina Veletrgovina d.o.o . v. the former Yugoslav Republic of Macedonia ( dec. ), no. 37619/04, 2 March 2010). Noting the importance of this principle, the Court reiterates that it cannot be ruled out that a breach of the rule of confidentiality might, in certain circumstances, justify the conclusion that an application is inadmissible on the ground of an abuse of the right of application (see, for example, Lesnina Veletrgovina d.o.o . , cited above; Miroļubovs and Others v. Latvia , no. 798/05, § 68, 15 September 2009; Benjocki and Others v. Serbia ( dec. ), nos. 5958/07, 6561/07, 8093/07 and 9162/07, 15 December 2009; Hadrabová v. the Czech Republic ( dec. ), no. 42165/02, 25 September 2007; and Popov v. Moldova , (no. 1) , no. 74153/01, § 48, 18 January 2005).

29. Turning to the present case the Court observes that three different daily newspapers in their reports mentioned the exact amount of compensation contained in the friendly-settlement proposal and that in all the reports the applicant was directly quoted by the journalists (see paragraphs 19-21 above). In the absence of any other explanation from the applicant as to the source of that information, the Court considers unconvincing the applicant ’ s argument (see paragraph 27 above) that he had not disclosed it in his speech of 4 March 2015. The Court therefore finds that the disclosure was attributable to the applicant.

30. As to the applicant ’ s alternative argument that, by the time he had allegedly disclosed that information, the friendly-settlement negotiations had already ended, the Court first notes that it had previously accepted similar argument but in different circumstances. In particular, in Lesnina Veletrgovina case (cited above) the Court held that it would have been disproportionate to declare the application inadmissible as an abuse of the right of application in the situation where the applicant ’ s lawyer had, after the friendly-settlement declarations had already been signed by the parties, disclosed to the media that friendly settlement proceedings had been underway and that a proposal had been made but had not revealed any details, such as the amount involved or the initiatives undertaken. However, the Court considers that the same reasoning cannot be applied in the present case because the parties did not reach a friendly settlement and because the applicant, by referring to the exact amount contained in the friendly-settlement proposal, disclosed details of the friendly-settlement negotiations.

31. The Court further notes that the instructions in Croatian, enclosed together with the Court ’ s letter of 9 January 2015, had made it clear that the nature of all friendly-settlement negotiations was strictly confidential (see paragraph 14 above). The applicant was therefore aware of this requirement and should have complied with it in any stage of the proceedings (see Benjocki and Others , cited above ). As already noted above (see paragraph 29 above), the Court considers that the applicant has failed to advance any convincing reasons for not doing so.

32. In conclusion, given that the applicant intentionally made public the terms of the friendly-settlement proposal, the Court considers that his conduct amounts to a breach of the rule of confidentiality, which must also be considered to constitute an abuse of the right of individual application.

33. It follows that the application is inadmissible under Article 35 § 3 (a) of the Convention as an abuse of the right of application and must be rejected pursuant to Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 6 October 2016 .

Hasan Bakırcı Paul Lemmens              Deputy Registrar President