Resolution CM/ ResDH (2011)50 [1]

Execution of the judgment of the European Court of Human Rights

Kovač against Croatia

(Application No. 503/05, judgment of 12/07/2007, final on 12/10/2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the right to a fair trial in that the applicant had not been given the opportunity to challenge a witness statement which was of decisive importance for his conviction (violation of Article 6, paragraph 1, taken together with Article 6, paragraph 3 (d)) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2011)50

Information on the measures taken to comply with the judgment in the case of

Kovač against Croatia

Introductory case summary

This case concerns the violation of the right to a fair trial in that the applicant had not been given the opportunity to challenge a witness statement, which was of decisive importance for his conviction in criminal proceedings brought against him for sexual abuse of a child in 2002 (violation of Article 6, paragraph 1, taken together with Article 6, paragraph 3 (d)).

The Court noted that the statement made by the alleged victim to the investigating judge was not recorded or videotaped, so that neither the applicant nor the trial court judges were able to observe the girl ’ s behaviour during questioning and thus form their own impression of her reliability. The applicant was not at any stage of the proceedings provided with an opportunity to have questions put to the alleged victim or to contest her statement. The trial court did not undertake a careful examination of the statement taken from her since this statement was not read before the trial court with or without the applicant being present. Finally, the domestic courts disregarded the applicant ’ s contention that he had not been given an opportunity to question the alleged victim.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1000 EUR

4000 EUR

5000 EUR

Paid on 19/11/2007

b) Individual measures

The criminal proceedings at issue were reopened in 2007. In the new proceedings a first-instance court heard the applicant ’ s arguments, examined the new evidence which was presented and re-examined the evidence already presented at the first trial. In particular, it should be stressed that the testimony of the alleged victim was heard and the applicant was able to ask her questions. The new criminal proceedings were closed with a final judgment of 7/02/2008. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

It seems that the existing legal framework provides sufficient safeguards in such situations and that the violation was of an isolated character resulting from a wrongful application of the law. According to Croatian law, as referred to in the judgment of the Court, the investigating judge shall order the video recording of testimony given by a child who is a victim of an offence. If the parties to the proceedings are not present during the examination of the child, either during the investigation or at the court hearing, they may ask questions through the investigating judge, psychologist, counsellor or other qualified person (Articles 248 (5) and 346 (3) of the Code of Criminal Procedure). When a child or a younger minor has been questioned in such manner, his or her statement shall always be read out or the recording of the testimony viewed at the court hearing (Article 119 (4) of the Juvenile Courts Act).

In view of the direct effect of the Convention in Croatia , the publication of the Court ’ s judgment and its dissemination to the relevant courts should be sufficient to prevent similar violations. In this context it should be noted that the Court ’ s judgment has been translated into Croatian and sent out to the Constitutional Court , the Supreme Court and to the courts involved in this case. It is also available on the Internet site of the Ministry of Justice ( www.mprh.hr ).

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Croatia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies