SECOND SECTION

DECISION

Application no. 20319/21 Ivan KOBAÅ against Croatia

The European Court of Human Rights (Second Section), sitting on 16 January 2024 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 8 April 2021,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Ivan Kobaš, is a Croatian national, who was born in 1977 and lives in Zagreb. He was represented before the Court by Ms V. Šuster, a lawyer practising in Zagreb.

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

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

4 . On 4 October 2018, in the case of Kobaš v. Croatia , no. 27228/14, the Court, sitting as a Committee of three judges, found that in the criminal proceedings against the applicant there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention regarding his right to defend himself in person because he had not been invited to the session of the appeal panel of the Zagreb County Court. The appeal panel was composed of Judge L.V. as the panel’s president and two other judges.

5 . On 2 November 2018 the applicant requested reopening of the case based on that judgment. He enclosed a copy of it in English.

6 . On 20 November 2018, the Zagreb Municipal Criminal Court, without setting a time-limit, invited the applicant to submit a Croatian translation of the Court’s judgment.

7 . On 3 December 2018 the Office of the Representative of the Republic of Croatia before the European Court of Human Rights (hereafter “the Government’s Agent’s Office”) published on its website the Croatian translation of the judgment in question.

8 . By a decision of 16 October 2019, the Zagreb Municipal Criminal Court declared the applicant’s request for reopening inadmissible because he had not provided the requested translation.

9 . The applicant appealed and enclosed the requested translation. He argued that it was not incumbent on him to provide a translation of the Court’s judgment and that the first-instance court could have obtained it on the web page of the Government’s Agent’s Office within whose purview it was to translate the Court’s judgments and decisions. He further pointed out that, contrary to Article 78 § 3 of the Code of Criminal Procedure, the first-instance court had not set any time-limit within which he had to comply with the translation request and that therefore his request for reopening could not have been declared inadmissible.

10 . By a decision of 29 September 2020, the panel of the Zagreb County Court, which included Judge L.V. (see paragraph 4 above) as the panel’s president, dismissed the applicant’s appeal and upheld the Municipal Court’s decision.

11. By a decision of 21 December 2020, the Constitutional Court declared inadmissible a subsequent constitutional complaint by the applicant, and on 13 January 2021 notified his representative of that decision. It held that under its longstanding case-law, decisions concerning requests for the reopening of a case were, in principle, not open to constitutional review.

12 . Before the Court the applicant complained under Articles 6 § 1 and 13 of the Convention of the domestic courts’ decision to declare inadmissible his request for reopening based on the Court’s judgment. Under Article 6 § 1 of the Convention he also complained that, contrary to domestic law, the judge who had presided the appeal panel of the County Court in the initial proceedings in respect of which the Court had found a violation, had also presided the County Court’s appeal panel which had dismissed his appeal against the first-instance decision to declare his request for reopening inadmissible.

13. On 6 July 2022 the Government were given notice of the complaints concerning access to a court and the lack of impartiality whereas the remainder of the application was declared inadmissible.

14. On 5 September 2023, the Principal State Attorney lodged, to the benefit of the applicant, a request for the protection of legality ( zahtjev za zaštitu zakonitosti ) with the Supreme Court against the decisions of 16 October 2019 and 29 September 2020 (see paragraphs 8 and 10 above).

15 . By a judgment of 12 September 2023, the Supreme Court allowed the State Attorney’s request, quashed the contested decisions, and remitted the case to the Zagreb Municipal Criminal Court. It held that the applicant had not been obliged to enclose the Court’s judgment, much less its translation, with his request for reopening. It was sufficient that in such requests for reopening the requesting party merely referred to the Court’s judgment whereupon it was for the relevant domestic courts to familiarise themselves with its content.

16. The proceedings are currently pending before the Zagreb Municipal Criminal Court which now must again decide on the applicant’s request for reopening based on the Court’s judgment of 4 October 2018 (see paragraphs 4-5 above).

THE LAW

17. The Court reiterates that, under Article 37 § 1 (b) of the Convention, it may “... at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... the matter has been resolved ...”. In order to ascertain whether that provision applies, the Court must examine, firstly, whether the circumstances complained of directly by an applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see, for example, Vadalà v. Italy (dec.), no. 14656/15, § 29, 7 November 2023, and the cases cited therein).

18. The Court further reiterates that for the purposes of Article 37 § 1 (b) of the Convention it is not required that the national authorities acknowledge a violation of the Convention or that the applicant, in addition to having obtained a resolution of the matter, is also granted compensation (ibid., § 36, and the cases cited therein).

19. The Court notes that in the present case the decisions complained of by the applicant to declare inadmissible his request for reopening (see paragraphs 8, 10 and 12 above) no longer obtain because the Supreme Court quashed them by its judgment of 12 September 2023 (see paragraph 15 above). Thereby, that judgment also redressed the effects of possible violations of the Convention on account of those decisions. Therefore, both conditions for the application of Article 37 § 1 (b) of the Convention have been met.

20. Consequently, the matter giving rise to the applicant’s complaints under Article 6 § 1 and Article 13 of the Convention can be considered to have been “resolved” within the meaning of Article 37 § 1 (b) of the Convention.

21. Lastly, the Court finds that no reason relating to the respect for human rights as defined in the Convention and its Protocols requires it to continue the examination of the application under Article 37 § 1 in fine .

22. Accordingly, the application should be struck out of the Court’s list of cases.

23. 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). Regard being had to the documents in its possession and to its case-law, the Court in the present case considers it reasonable to award the applicant 2,900 euros (EUR) in respect of costs and expenses, plus any tax that may be chargeable to him.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases;

Holds,

(a) that the respondent State is to pay the applicant, within three months, EUR 2,900 (two thousand and nine hundred 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 8 February 2024.

{signature_p_1} {signature_p_2}

Dorothee von Arnim Pauliine Koskelo Deputy Registrar President