SECOND SECTION

DECISION

Application no. 18551/17 Tonina GUCIĆ and Others against Croatia

The European Court of Human Rights (Second Section), sitting on 28 March 2023 as a Committee composed of:

Pauliine Koskelo , President , Lorraine Schembri Orland, Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 18551/17) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 March 2017 by the applicants listed in the appended table (“the applicants”), who were represented by Mr M. Matijević, a lawyer practising in Osijek;

the decision to give notice of the applicants’ complaint that they were unable to effectively participate in the criminal proceedings in which their property was confiscated to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the issue whether the applicants were able to participate effectively and defend their interests in the criminal proceedings against third parties in which a significant amount of money was confiscated from each of the applicants as proceeds of crime.

2. On 25 May 2001 the Osijek County State Attorney’s Office indicted three individuals for fictitiously increasing share capital of a company. The second accused was the first applicant’s son and the second and third applicants’ brother. The third accused was the first applicant’s husband and the second and third applicants’ father.

3. By a judgment of 14 March 2014, the Osijek County Court found the accused guilty of a criminal offence of abuse of trust in business operations. It also established that the criminal offence in question had resulted in an illicit pecuniary gain for the applicants who had acquired shares in the company in question without having paid for them, which shares they had later sold at their nominal value. The court therefore ordered that 1,008,000 Croatian kunas (HRK), that is, some 131,620 euros (EUR) at the time, be confiscated from each of the applicants as the proceeds of crime.

4. The applicants, as interested parties, had the right to lodge an appeal against the decision on confiscation, of which they availed themselves. The Supreme Court dismissed their appeal on 7 April 2016. It found that the applicants were entitled to lodge an appeal against the first-instance judgment only as regards the decision on confiscation but that they had also challenged the findings of fact and had argued that an earlier Penal Code should have been applied to the accused because it was more lenient. In those circumstances the court held that it could not examine that part of their appeal.

5. The applicants then lodged a joint constitutional complaint in which they complained that they had been denied access to court because the Supreme Court had refused to examine a part of their appeal.

6 . In addition, the third applicant lodged a separate constitutional complaint in which he argued that the possibility of lodging an appeal was insufficient to protect his interests in the proceedings. Specifically, he contended that, even though the domestic law expressly provided that he was a party to the proceedings, he had not been invited to attend hearings and could not have examined witnesses or experts, proposed evidence or contested findings of fact, which placed him at a disadvantage vis-à-vis the other parties to the proceedings.

7 . On 19 October 2016 the Constitutional Court declared both constitutional complaints inadmissible holding that the case did not raise any constitutional issue.

8 . Before the Court the applicants complained, under Article 6 § 1 of the Convention, that they had not been given an opportunity to participate effectively and defend their interests in the criminal proceedings in question. They advanced the same arguments as the third applicant in his constitutional complaint (see paragraph 6 above).

9. In the applicants’ observations of 17 December 2018 their representative informed the Court that the first applicant had died on 5 January 2018 and that the remaining two applicants and her son Mr Zvonimir Gucić (who was the second accused in the criminal proceedings in question) wished to pursue the application in her stead. He submitted a decision issued by a notary public of 22 May 2018 declaring them her statutory heirs. He also submitted an authority form dated 5 December 2018 whereby they had authorised him to represent them before the Court. The Government did not oppose the wish of the heirs to pursue the application in the first applicant’s stead.

THE COURT’S ASSESSMENT

10. Having regard to its case-law on the matter (see, for example, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII), and given that under the domestic law heirs are liable for the debts of the decedent up to the value of the inherited property, the Court finds that the second and third applicants and Mr Zvonimir Gucić have standing to pursue the application in the first applicant’s stead.

11 . The Government argued that the applicants had not exhausted domestic remedies because neither in the proceedings before the first ‑ instance court nor in their appeal against the first-instance judgment had they complained of their inability to effectively participate in the proceedings in question.

12. The applicants replied that their inability to effectively participate in the proceedings constituted a serious breach of criminal procedure which the appeal court should have examined of its own motion.

13. The Court reiterates that even in those jurisdictions where the domestic courts are able, or even obliged to examine the case of their own motion, applicants are not dispensed from raising before them the complaint subsequently made to the Court (see, among other authorities, Kandarakis v. Greece , nos. 48345/12 and 2 others, § 77, 11 June 2020).

14. The Court has also held that complaints regarding unfairness of proceedings are best addressed in the proceedings in respect of which such complaints are raised (see Tarbuk v. Croatia , no. 31360/10, § 33, 11 December 2012). Therefore, in a number of cases against Croatia the Court has held that applicants had properly exhausted domestic remedies by raising throughout the domestic proceedings the same complaints they subsequently raised before the Court, and that that was the normal use of the domestic remedies, as required by Article 35 § 1 of the Convention (see Tarbuk , cited above, § 32; Zrilić v. Croatia , no. 46726/11, §§ 46-48, 3 October 2013; Horvatić v. Croatia , no. 36044/09, § 70, 17 October 2013; and Marić v. Croatia , no. 50132/12, § 53, 12 June 2014).

15. Applying the same principle, the Court has declared inadmissible for non-exhaustion of domestic remedies a number of cases against Croatia in which the applicants had not raised their Convention grievances at the first opportunity or, at the latest, in their appeals, even though they had subsequently raised them in their constitutional complaints (see Ringwald v. Croatia (dec.) [Committee], no. 14590/15 and 25405/15, §§ 59-62, 22 January 2019; Leštek v. Croatia (dec.) [Committee], no. 18532/12, §§ 18 ‑ 22, 20 February 2018; Bosanac v. Croatia (dec.) [Committee], no. 79580/12, §§ 18-21, 20 February 2018; and Petek v. Croatia (dec.) [Committee], no. 50000/12, §§ 17-21, 20 February 2018). In such situations the Court rejected the Government’s non-exhaustion objections only in cases where the Constitutional Court nevertheless examined the merits of the applicants’ grievances before dismissing their constitutional complaints (see Ulemek v. Croatia , no. 21613/16, § 118, 31 October 2019; and Grubić v. Croatia [Committee], no. 33602/17, §§ 52-56, 18 March 2021).

16. The Court further reiterates:

- that, as a general principle, persons whose property is confiscated should be formally granted the status of parties to the proceedings in which the confiscation is ordered, but that de facto affording them a reasonable and sufficient opportunity to protect their interests adequately may be sufficient to satisfy the requirements of Article 6 § 1 of the Convention (see Silickienė v. Lithuania , no. 20496/02, § 50, 10 April 2012);

- that under section 2(5) of the Confiscation of the Proceeds of Crime Act ( Zakon o postupku oduzimanja imovinske koristi ostvarene kaznenim djelom i prekršajem ), which was in force at the material time, both the accused and the person from which the proceeds were being confiscated had the status of a party to the proceedings, and

- that Article 468 § 2 of the Code of Criminal Procedure provided that “a grave breach of the right to a fair trial guaranteed by the Convention and the Croatian Constitution” was a ground for appeal.

17. Therefore, because the issue the applicants complained of (see paragraph 8 above) was a ground for appeal, there is no doubt that an appeal against the first-instance judgment was a proper remedy for their grievances. However, the applicants did not raise that issue in their appeal. It was raised for the first time in the third applicant’s constitutional complaint, which the Constitutional Court did not examine on the merits (see paragraphs 6-7 above and contrast Ulemek, cited above, § 118; and Grubić, cited above, §§ 53-56). The Government’s objection (see paragraph 11 above) must therefore be accepted.

18. It follows that the present application is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and that it must be rejected pursuant to Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

Holds that the second and third applicants and Mr Zvonimir Gucić have standing to pursue the application in the first applicant’s stead;

Declares the application inadmissible.

Done in English and notified in writing on 20 April 2023.

Dorothee von Arnim Pauliine Koskelo Deputy Registrar President

Appendix

List of applicants:

Application no. 18551/17

No.

Applicant’s Name

Year of birth

1.Tonina GUCIĆ

1950

2.Cicilija GEČEVIĆ

1976

3.Ante GUCIĆ

1973