SECOND SECTION

DECISION

Application no. 39158/21 Dino ALIĆ against Croatia

The European Court of Human Rights (Second Section), sitting on 23 May 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 above application lodged on 29 July 2021,

Having regard to the declaration submitted by the respondent Government on 13 February 2023 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Dino Alić, is a Croatian national who was born in 1972 and lives in Slavonski Brod. He was represented before the Court by Mr I. Kobaš, a lawyer practising in Zagreb.

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

3. The applicant’s complaint under Article 6 §§ 1 and 3 (c) of the Convention that the session of the appeal panel in the criminal proceedings against him was held in his absence was communicated to the Government, while the remainder of the application was declared inadmissible.

THE LAW

4. The applicant complained about not having been allowed to attend the session of the appeal panel in the criminal proceedings against him. He relied on Article 6 §§ 1 and 3 (c) of the Convention.

5 . After the failure of attempts to reach a friendly settlement, by a letter of 13 February 2023 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“I declare, by way of this unilateral declaration, that the Government of the Republic of Croatia:

(a) acknowledges that in the instant case there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention due to failure to invite the applicant to the session of the appeal panel in the criminal proceedings against him; and

(b) is ready to pay the applicant the amount of EUR 2,115 (two thousand one hundred fifteen), to cover any and all non-pecuniary damage, and any and all costs and expenses, plus any tax that may be chargeable to the applicant.

This sum will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights to the account indicated by the applicant. In the event of failure to pay this sum within the said three-month period, the Government undertakes to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

6. By a letter of 14 March 2023, the applicant requested the Court to continue the examination of his case. He submitted that a strike-out decision would prevent him from being able to seek the reopening of the criminal proceedings against him, contending that under domestic law the proceedings could be reopened only on the basis of a final judgment of the Court finding a violation of the Convention. In addition, he contended that the sum offered by the Government did not take into account the significant pecuniary and non-pecuniary damage he had suffered as a result of the violation complained of and was insufficient to cover the costs of proceedings.

7. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

8. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

9. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75 ‑ 77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).

10. The Court has repeatedly found violations of Article 6 §§ 1 and 3 (c) of the Convention on account of applicants not being allowed to be present at the session of the appeal panel in the criminal proceedings against them (see, for instance, Zahirović v. Croatia , no. 58590/11, §§ 58-64, 25 April 2013; Lonić v. Croatia , no. 8067/12, §§ 94-102, 4 December 2014; Arps v. Croatia , no. 23444/12, §§ 24-29, 25 October 2016, and Kobaš v. Croatia [Committee], no. 27228/14, §§ 17 ‑ 19, 4 October 2018). The issue raised in the present case is therefore covered by clear and extensive case-law of the Court.

11. The Court notes that the amendments made to the relevant domestic law in the wake of the Arps judgment removed the source of the violation acknowledged in the present case (see Romić and Others v. Croatia , nos. 22238/13 and 6 others, § 68, 14 May 2020).

12. As for the redress available to the applicant the Court reiterates that where a violation of Article 6 of the Convention has been found, a retrial or the reopening of the proceedings, if requested, will in principle represent an appropriate way of redressing the violation (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 50 and 52, 11 July 2017, with further references). The Court finds no reason to hold otherwise in the circumstances of the present case, where a violation of the Convention has been acknowledged by the Government, and where the aim pursued by the applicant was the reopening of the criminal proceedings against him.

13. In that connection the Court notes that, until 19 July 2022, Article 502 § 2 of the Croatian Code of Criminal Procedure provided applicants with a possibility of seeking reopening of the criminal proceedings solely on the basis of a judgment of the Court finding a violation of the Convention or Protocols thereto (see Romić and Others , cited above, § 69). However, following the entry into force of the 2022 Amendments to that Code on 19 July 2022, applicants are now entitled to seek reopening also on the basis of a decision by the Court, it being noted that the explanatory report to those amendments expressly referred to the need to allow reopening on the basis of the Court’s decisions accepting friendly settlements and the Government’s unilateral declarations.

14. Accordingly, the Court is satisfied that the applicant can rely on the amended Article 502 § 2 of the Croatian Code of Criminal Procedure and request the reopening of domestic proceedings following a decision striking out his application on the basis of the Government’s unilateral declaration (contrast Igranov and Others v. Russia , nos. 42399/13 and 8 others, § 26, 20 March 2018, with further references, and compare Sroka v. Poland (dec.), no. 42801/07, 6 March 2012).

15. This is without prejudice to the competence of the domestic courts to examine, in each particular case, the existence of the remaining two statutory conditions for allowing the reopening of criminal proceedings; namely whether the violation of the Convention affected the outcome of the proceedings, and whether the violation or its consequences can be rectified in the reopened proceedings (compare Moreira Ferreira , cited above, § 93).

16. As regards the monetary compensation offered to the applicant, the Court finds in respect of the applicant’s claim concerning pecuniary damage that there is no causal link between the acknowledged violation of Article 6 §§ 1 and 3 (c) of the Convention and the alleged pecuniary damage.

17 . That being so, and noting the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases in respect of non-pecuniary damage (see, for instance, Arps , cited above, § 33, and Kobaš , cited above, § 23) plus costs and expenses incurred in the proceedings before this Court – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

18. Moreover, in light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

19. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, or should the applicant be denied the opportunity to seek the reopening of the criminal proceedings on the grounds that there is no final judgment of the Court finding a violation of the Convention, but instead a decision accepting the Government’s unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Khan v. Germany [GC], no. 38030/12, § 41, 21 September 2016, and Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

20. In view of the above, it is appropriate to strike the case out of the list.

21. Rule 43 § 4 of the Rules of Court provides that when an application has been struck out in accordance with Article 37 of the Convention the Court has the discretion to award costs. The general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention (see, for example, Union of Jehovah’s Witnesses and Others v. Georgia (dec.), no. 72874/01, § 33, 21 April 2015; and Maras v. Croatia (dec.) [Committee], no. 20230/15, § 18, 17 November 2020).

22. Regard being had to its case-law, the documents in its possession and the fact that the amount offered by the Government in their unilateral declaration can only be considered as covering the costs of the proceedings before the Court if the award is to be consistent with the amounts awarded in similar cases (see paragraphs 5 and 17 above; compare also Union of Jehovah’s Witnesses and Others , cited above, §§ 18, 28 and 33-34), the Court considers it reasonable to award the applicant 830 euros (EUR) for the costs of lodging a constitutional complaint, plus any tax that may be chargeable to the applicant. Indeed, the constitutional complaint, which the applicant lodged through his lawyer, was aimed at remedying the acknowledged violation of the Convention, albeit unsuccessfully. The Court finds no link between the remaining costs of the domestic proceedings claimed by the applicant and the acknowledged violation of the Convention.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government’s declaration under Article 6 §§ 1 and 3 (c) of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 830 (eight hundred and thirty euros) in respect of costs and expenses, plus any tax that may be chargeable to him;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English and notified in writing on 15 June 2023.

Dorothee von Arnim Pauliine Koskelo Deputy Registrar President