Communicated on 8 September 2015

SECOND SECTION

Application no. 68317/13 Rade MILJEVIĆ against Croatia lodged on 24 October 2013

STATEMENT OF FACTS

The applicant, Mr Rade Miljević , is a Croatian national, who was born in 1944 and lives in Glina . He is represented before the Court by Mr Z. Kostanjšek , a lawyer practising in Sisak .

The circumstances of the case

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

On an unspecified date in 2008 the applicant was indicted in the Sisak County Court ( Ž upanijski sud u Sisku – “the County Court”) on charges of war crimes against the civilian population.

Judge S.M. assumed control of the case as the president of the trial panel.

In his closing arguments at a hearing held on 16 December 2008 the applicant alleged that I.P., a war veteran and activist in matters concerning the Croatian Homeland War, had contacted and exerted pressure on certain witnesses instructing them how to testify, and had also instigated a vi rulent media campaign, which meant that he had led a crimin al enterprise aimed against him, and that the case concerned a politically motivated prosecution.

The appl icant based this conclusion on the fact that I.P. had had some contact with the witnesses and the media, and that some of the witnesses had changed their statements during the proceedings, while the case had attracted high media interest. The applicant had also alle gedly seen I.P. visiting Judge S.M. during the trial.

The applicant ’ s closing arguments were reported by the media.

On 5 January 2009 I.P. instituted a private criminal prosecution against the applicant in the Sisak Municipal Court ( Op ć inski sud u Sisku – “the Municipal Court”) on charges of defamation, an offence under Article 200 of the Criminal Code.

At a hearing on 22 February 2011 before the Municipal Court the applicant requested that Judge S.M. be questioned as a witness concerning, inter alia , whether she had been contacted by I.P. during the proceedings against the applicant on charges of war crimes. The trial panel adjourned the examination of this request and it is unclear what final decision was taken.

On 21 March 2012 the Municipal Court found the applicant guilty of defamation and fined him 1000 Croatian kunas (approximately 130 euros). It also stipulated that failure to pay within four months of the judgment becoming final could result in the fine being replaced with community service. The applicant was also ordered to pay 16,337.50 Croatian kunas (approximately 2,150 euros) for the costs and expenses of the proceedings.

The Municipal Court held that the media reports, supported by the witness statements, had conclusively shown that the applicant had made the allegations at issue, which for the most part was apparent from the record of the hearing held before the County Court and the written defence he had submitted.

The Municipal Court also found that although there had been some contact between I.P. and certain witnesses, the applicant had failed to prove the veracity of the statement that I.P. had exerted pressure and instructed witnesses how to testify, and that the allegations of him leading a criminal enterprise aimed against the applicant were particularly defamatory.

The applicant challenged this judgment before the County Court, arguing that the first-instance court had failed to appreciate all the evidence and indicia, which had legitimately led him to conclude that I.P. had led a campaign aimed against him by, in particular, influencing the witnesses. The applicant further contended that the first-instance court had not taken into account that his statements had been made in the context of his closing arguments in the criminal proceedings against him on charges of war crimes, and that some of them had been distorted in the course of media reporting and the drafting of the trial record by Judge S.M.

On 31 January 2013 the County Court, sitting in a panel of three judges including Judge S.M., dismissed the applicant ’ s appeal and upheld his criminal conviction. It also remitted the case to the Municipal Court for a reassessment of the costs and expenses of the proceedings on the grounds that the first-instance judgment had lacked the relevant reasoning in this regard.

The applicant further challenged the judgment of the County Court by lodging a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), which on 15 May 2013 declared his complaint inadmissible as manifestly ill-founded.

COMPLAINTS

The applicant complains that his criminal convic tion for defamation of I.P. was unjustified and unfair.

He also alleges that the Sisak County Court was impartial on account of Judge S.M. ’ s participation in the appeal panel which upheld his conviction for defamation.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charge against him , in accordance with Ar ticle 6 § 1 of the Convention? In particular, were the domestic courts impartial on account of Judge S.M. ’ s participation in the appeal panel of the Sisak County Court?

2. Has there been an interference with the applicant ’ s freedom of expression, within the meaning of Article 10 § 1 of the Convention?

If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?

The Government are requested to submit two copies of the relevant documents in the applicant ’ s case.