FIRST SECTION

DECISION

Application no. 73553/16 Tomislav TONČIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 29 March 2022 as a Committee composed of:

Péter Paczolay, President, Alena Poláčková, Davor Derenčinović, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 73553/16) against Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 December 2016 by a Croatian national, Mr Tomislav Tončić, who was born in 1938 and lived in Zagreb (“the applicant”), and was represented by Ms I. Bojić, a lawyer practising in Zagreb;

the decision to give notice of the application to the Croatian Government (“the Government”), represented by their Agent, Mrs Š. Stažnik;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the fairness of criminal proceedings against a lawyer for falsely reporting three judges for abuse of power.

2. The applicant, who was an attorney at law, represented family G. in civil proceedings concerning several property disputes (for detailed factual information see Gurdulić and Others v. Croatia (dec.), no. 5076/09, §§ 3-30, 8 April 2014). In one of those proceedings, on 17 October 2005 a three-judge panel of the Split County Court dismissed family G.’s claim.

3 . On 16 January 2006, on instruction by family G., the applicant lodged a criminal complaint against those three judges for alleged abuse of power. He stated that, despite being competent judges, they had intentionally misapplied the domestic law and adopted an unlawful judgment, which was contrary to an earlier judgment of the Supreme Court deciding the same preliminary issue.

4. On 2 February 2006 the criminal complaint was dismissed. The Split County State Attorney’s Office explained that a reasonable doubt of abuse of power must be supported by certain evidence, which did not exist in the criminal complaint. Given the independence of the judiciary, judges were in principle not bound by earlier decisions of another court. Decisions of lower courts deviating from the opinion of a higher court could only be quashed using appropriate remedies and could not serve as basis for a judge’s disciplinary proceedings, let alone criminal prosecution. Criminalising a judge’s decision only because it was different from an earlier decision of another court would amount to an unlawful and unconstitutional interference with the functioning of the judiciary.

5. On 24 September 2007 that Split County State Attorney indicted the applicant for bringing a false criminal complaint under Article 302 (1) of the Criminal Code.

6. On 28 May 2010 the applicant’s lawyer sought access to the criminal file against him. The applicant reiterated that request on 7 June 2010. A day later, the trial judge instructed that photocopies of the entire file, save for several pages, be sent to the applicant. The applicant thereafter unsuccessfully sought the trial judge’s recusal.

7 . On 14 October 2010 the applicant again requested copies of the entire file and his request was granted on 21 October 2010. The trial began on 10 November 2010.

8. During the proceedings, the applicant proposed hearing the three judges in question, Mr G. as his client in the civil proceedings and three other persons who were to testify that certain documents had unlawfully reached the Split County Court in the civil proceedings which had been the origin of the criminal complaint. At the hearing of 21 October 2011, during the testimony of judge A.M., the applicant and his lawyer were prohibited from asking her further questions related to the merits of the said civil proceedings because she had already stated that she did not remember them, and their conduct and outcome were irrelevant to the criminal proceedings against the applicant. The trial court also refused to hear three further witnesses proposed by the applicant concerning the allegedly illegally submitted documents considering them irrelevant to the facts of the criminal proceedings at issue.

9 . On 21 October 2011 the Šibenik Municipal Court found the applicant guilty as charged and fined him. The court held that the applicant as a lawyer must have known that the judges’ decision in a case, which had been based on relevant legislation, judicial practice and the Constitution, could not be considered a criminal act, regardless of whether or not his client was satisfied therewith. He should thus have advised his client that a criminal complaint could not be lodged against judges for decisions they had adopted. Instead, according to Mr G.’s testimony, he had told his client that lodging a criminal complaint against the judges may be a way to “influence their case”. The court thus concluded that it was in fact the applicant who had lodged the criminal complaint and not his client, who had also stated that he did not know for which criminal offence the complaint had been lodged.

10. The first-instance judgment was upheld on appeal on 5 January 2012 by the Šibenik County Court. The applicant’s subsequent constitutional complaint was dismissed by the Constitutional Court on 25 May 2016.

11. The applicant complained under Article 6 of the Convention about the unfairness of the proceedings, in particular that he had not been given sufficient time to prepare his defence because his request to consult the case ‑ file had been denied, that the trial court prohibited him from asking witness A.M. further questions and that it refused to hear further witnesses crucial for his defence. He also complained under Article 7 of the Convention that he should not have been convicted of the crime in question because he had acted on instruction by his client and thus he had had no direct intent to falsely report the judges, which was a constitutive element of the offence he had been found guilty of.

THE COURT’S ASSESSMENT

12. The applicant died on 1 July 2021. On 9 July 2021 his wife and two children expressed their wish to continue the application on his behalf, which the Government opposed.

13. According to its well-established case-law on the matter (see Mile Novaković v. Croatia , no. 73544/14, §§ 33-34, 17 December 2020, with further references), the Court considers that the applicant’s heirs have standing to continue the proceedings in the applicant’s stead and rejects the Government’s objection in this respect.

14. The general principles concerning adequate time for preparation of defence under Article 6 §§ 1 and 3 (b) of the Convention have been set out in Gregačević v. Croatia (no. 58331/09 , §§ 49-52, 10 July 2012).

15. Applying those principles to the present case, the Court notes that the applicant was sent photocopies of a large portion of the criminal file against him already in June 2010. Despite a certain delay, the Government submitted, and the applicant did not disagree, that the copy of the entire case file had been sent to him on 21 October 2010, whereas the main hearing against him started on 10 November 2010 (see paragraph 7 above).

16. Bearing in mind that the case against him was not particularly complex and the criminal file did not involve a large amount of documents, and especially not such as to require particular expertise or interpretation, the Court considers that in the circumstances the applicant had been afforded sufficient time to effectively prepare his defence.

17. The general principles concerning the examination of defence witnesses under Article 6 §§ 1 and 3 (d) of the Convention have been set out in Murtazaliyeva v. Russia ([GC], no. 36658/05, §§ 139-68, 18 December 2018).

18. The Court notes that in his written submission to the Šibenik Municipal Court the applicant requested hearing the three judges in question, a member of the family G. and another three persons who were supposed to testify about two documents which had allegedly been unlawfully sent to the Split County Court when deciding the applicant’s client’s case. The trial court heard the three judges and Mr G. and rejected the latter request as irrelevant to the criminal charges against the applicant.

19. The Court further observes that the applicant did not provide any explanations in support of the proposed three witnesses, including how and when he had learned about such alleged unlawful conduct before the Split County Court. Most importantly, he failed to explain why the testimonies of those witnesses would have been decisive for the criminal charges against him, seeing that he did not submit any of those facts in the criminal complaint against the judges, but argued that the unlawfulness of their behaviour exclusively lay in the fact that they had adopted a decision contrary to a previous judgment of the Supreme Court (see paragraph 3 above).

20. Indeed, the Court would agree with the domestic courts that the civil proceedings at the origin of the case had not been directly decisive in the context of the applicant’s criminal conviction. In any event, the Court has already examined those civil proceeding and concluded that the domestic courts’ decisions had been satisfactorily reasoned and not arbitrary, and that the family G. had at their disposal two legal avenues of addressing the inconsistency of case-law in their case (see Gurdulić and Others , cited above, §§ 63-70).

21. In such circumstances, the Court is satisfied that the domestic courts’ decision not to examine the said witnesses, as well as to prohibit the applicant and his lawyer from asking witness A.M. further questions about the merits of the civil proceedings, did not undermine the overall fairness of the proceedings in the present case (compare Bosak and Others v. Croatia , nos. 40429/14 and 3 others, § 117, 6 June 2019, and Gregačević , cited above, § 64).

22. The applicant further argued that the trial judge had unlawfully amended the hearing record of 15 April 2011, that his right to appeal had been violated by unlawful service of the first-instance judgment and that the reasons put forward by the domestic courts establishing his guilt had been insufficient.

23. As regards the impugned hearing record, the Court notes that the applicant lodged a criminal complaint against the trial judge in that connection, which was dismissed as ill-founded. The second-instance court also confirmed that there had been no unlawful amendments of the court hearing record. In such circumstances, the Court is unable to question the conclusion reached by two domestic authorities.

24. In relation to the applicant’s complaint concerning his right to appeal, alleging mainly that the service of the first-instance judgment had been unlawful, the Court notes that both the applicant and his attorney lodged timely appeals against the first-instance judgment, which were examined by the appeal court. The second-instance judgment contains specific replies to the various arguments raised in both appeals and the Court has no reason to question the fairness of the proceedings before the appeal court.

25. More generally, and in reply to the applicant’s remaining grievances, the Court considers that they are essentially of a “fourth instance” nature relating to the domestic courts’ interpretation and application of law to the facts of the case. However, it is not the Court’s function to deal with errors of fact or law allegedly committed by these courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I).

26. The applicant’s complaint in this sense amounts to a mere disagreement with the domestic courts’ assessment of the evidence, and the Court does not find that assessment arbitrary or manifestly unreasonable. The applicant challenged his conviction on appeal and before the Constitutional Court and was given ample opportunity to put forward his arguments throughout the proceedings. Himself a lawyer and represented by another attorney, he was able to conduct his defence effectively, comment without hindrance on the incriminating evidence, adduce evidence he considered relevant, and present his account of the events to the domestic courts. There is nothing in the file to suggest that the domestic courts’ conclusions were arbitrary or otherwise unfair or that the applicant did not receive a fair trial.

27. It follows that the above complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

28. The relevant principles emerging from the Court’s case-law under Article 7 of the Convention are summarised in Vasiliauskas v. Lithuania ([GC], no. 35343/05, §§ 153-55, ECHR 2015).

29. The applicant argued that he had been convicted of false reporting although he had acted on behalf of his client and the courts did not prove his direct intent necessary for the commission of the criminal offence in question. The Court reiterates that it is not its task to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see, for example, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 150, 20 March 2018).

30. The Court further notes that the domestic courts established (see paragraph 9 above) as follows:

– that the applicant had lodged a criminal complaint against three judges alleging that they had unlawfully decided his client’s civil case;

– that the applicant, as an experienced lawyer, must have known that judges could not be criminally liable solely for deciding a case in a certain way and that, nevertheless, he had told his client that lodging a criminal complaint could be a way of “influencing their case”; and

– that the applicant had acted with direct intent.

31 . For the Court, in the present case, there are no elements that would lead it to contradict these factual findings of the domestic courts.

32. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Holds that the applicant’s heirs have standing to pursue the application;

Declares the application inadmissible.

Done in English and notified in writing on 28 April 2022.

Liv Tigerstedt Péter Paczolay Deputy Registrar President