Published on 5 February 2024

SECOND SECTION

Application no. 15597/22 Mijo MAROŠEVIĆ against Croatia lodged on 28 March 2022 communicated on 17 January 2024

SUBJECT MATTER OF THE CASE

The application concerns criminal proceedings in which the applicant was found guilty of one count of receiving a bribe and two counts of abuse of power and authority perpetrated while he was a public official in the City of Zagreb. He was given a prison sentence and property was confiscated from him.

The domestic courts held that the offence of receiving a bribe had been committed in January 2009, when the last in a series of corruptive actions had been undertaken. Consequently, when establishing which Criminal Code provided for a more lenient penalty, the courts compared the 1997 Criminal Code as amended on 1 October 2006, which prescribed a sentence of imprisonment of one to eight years, and the 2011 Criminal Code, which prescribed a sentence of imprisonment of one to ten years and applied the former which they found more lenient.

The applicant argued that according to legal theory and the Supreme Court’s case-law (nos. Kž 686/2005-5 of 9 May 2007; Kž 741/2007-5 of 19 November 2008, and Kž Us 5/2013-6 of 3 April 2014), the criminal offence of receiving a bribe was considered to be committed on the day when the corruptive agreement was made, which in his case was in December 2005, regardless of any further developments. Therefore, the 1997 Criminal Code as in force before the legislative amendments of 1 October 2006 ought to have been applied since it prescribed a sentence of imprisonment of six months to five years.

The Constitutional Court took note of the Supreme Court’s case-law relied on by the applicant but observed that there were two Supreme Court decisions (nos. Kž-Us 14/09-3 of 21 January 2010 and Kž-Us 82/2018-4 of 29 November 2018) which showed that the manner in which the courts had established the day of commission of the offence in the applicant’s case had not been a precedent.

The Constitutional Court further found a breach of the applicant’s right to a fair trial on account of the fact that the prosecution’s reasoned reply to the applicant’s appeal against the first-instance judgment had not been forwarded to the defence. At the same time, it held that the finding of a violation was sufficient and that there was no need to quash the appellate court’s judgment.

The applicant complains, relying on Articles 6 § 1 and 7 of the Convention, that the domestic courts established the date when the criminal offence of receiving a bribe was committed contrary to the relevant legal theory and the Supreme Court’s case-law and that they consequently failed to apply the Criminal Code which provided for a more lenient penalty.

He further complains, under Article 6 § 1 of the Convention, that the Constitutional Court arbitrarily decided not to quash the appellate court’s judgment and that he thus remained a victim of the violation of the right to a fair trial on account of the fact that the prosecution’s reasoned submission was not forwarded to the defence.

QUESTIONS TO THE PARTIES

1. Did the domestic courts establish the date when the applicant committed the criminal offence of receiving a bribe contrary to the domestic courts’ case-law? Alternatively, is there divergent case-law of the domestic courts on establishing the moment when the criminal offence of receiving a bribe is committed? If so, was the manner in which the domestic courts established the date when the applicant committed the criminal offence of receiving a bribe unforeseeable?

Depending on the answer to the above questions, did the domestic courts fail to apply the law whose provisions provided for a more lenient penalty, contrary to Article 7 of the Convention (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 109, 17 September 2009; Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, §§ 65-76, ECHR 2013 (extracts), and Jidic v. Romania , no. 45776/16, § 80, 18 February 2020)?

2. Can the applicant still be considered as a victim of the alleged violation of Article 6 § 1 of the Convention on account of the fact that the prosecution’s reasoned submission was not forwarded to the defence, within the meaning of Article 34 thereof, in view of the Constitutional Court’s decision rendered in his case?

In particular, can the acknowledgment of a breach of the applicant’s right to a fair trial, without quashing the appellate court’s judgment or awarding non-pecuniary damages to the applicant, be considered sufficient to deprive him of his “victim status” ( compare, mutatis mutandis , Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 91-94, 11 July 2017; Zadumov v. Russia , no. 2257/12, §§ 80-81, 12 December 2017; Willems and Gorjon v. Belgium , nos. 74209/16 and 3 others, §§ 64-66, 21 September 2021, and Arat v. Turkey , no. 10309/03, §§ 45-47, 10 November 2009 )?

In the circumstances where in his constitutional complaint the applicant did not ask for compensation for non-pecuniary damage but only the quashing of the appellate court’s judgment, was the Constitutional Court competent and obliged to award the applicant damages when deciding that quashing the appellate court’s judgment was not necessary, in order to remove the applicant’s victim status?

3. If the applicant can still be considered as a victim of the alleged violation, has there been a breach of Article 6 § 1 of the Convention on account of the fact that the prosecution’s reasoned submission was not forwarded to the defence (see Zahirović v. Croatia , no. 58590/11, §§ 42-50, 25 April 2013; Bosak and Others v. Croatia , nos. 40429/14 and 3 others, §§ 91-101, 6 June 2019 , and Romić and Others v. Croatia , nos. 22238/13 and 6 others, §§ 91-95, 14 May 2020)?