FIRST SECTION
CASE OF ŠEKERIJA v. CROATIA
(Application no. 3021/14)
 
 
JUDGMENT
6 § 1 (criminal) • Fair hearing during trial for drug-related offences • Equality of arms and adversarial trial • Taking and credibility of evidence by witnesses not affecting overall fairness • References by domestic court to information in the case file, but not examined during the trial, not undermining overall fairness • Impartial tribunal • Trial court judgment’s expression of its opinion in open and direct manner not implying personal involvement and therefore subjective partiality in the case • Any potential shortcomings remedied by reduction of sentence by Supreme Court • Adequate reasons given for failure to obtain attendance of witnesses on applicant’s behalf
 
STRASBOURG
5 November 2020
 
FINAL
 
05/02/2021
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Šekerija v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Krzysztof Wojtyczek, President,
 Ksenija Turković,
 Linos-Alexandre Sicilianos,
 Alena Poláčková,
 Erik Wennerström,
 Raffaele Sabato,
 Lorraine Schembri Orland, judges,
and Abel Campos, Section Registrar,
Having regard to:
the application 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”) by a Croatian national, Mr Dubravko Šekerija (“the applicant”), on 27 December 2013;
the decision to give notice to the Croatian Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 13 October 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns criminal proceedings against the applicant on drug‑related charges in which he was found guilty and sentenced to six years’ imprisonment. The applicant complains, under Article 6 §§ 1 and 3 (d) of the Convention, that the criminal proceedings taken as a whole violated his right to a fair trial. THE FACTS
2. The applicant was born in 1975 and lives in Dubrovnik. He was represented by Mr M. Umićević, a lawyer practising in Zagreb, and after his death by Ms Lj. Planinić, a lawyer also practising in Zagreb. 3. The Croatian Government (“the Government”) were represented by their Agent, Ms S. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case
5. On 21 October 2010 the police officers of the Criminal Police Department of the Dubrovnik-Neretva County Police (Odjel kriminalističke policije Policijske uprave dubrovačko-neretvanske) (hereinafter “the police”) arrested one Goran Kovačević and lodged a criminal complaint against him on suspicion of drug abuse (see Goran Kovačević v. Croatia, no. 34804/14, §§ 6 and 13, 12 April 2018). 6. The following day Goran Kovačević was questioned by the investigating judge of the Dubrovnik County Court (istražni sudac Županijskog suda u Dubrovniku – hereinafter “the investigating judge”). According to the report on his questioning, he was twice advised by the investigating judge of his right to remain silent and to hire a lawyer of his own choosing, who could be present during the questioning. He replied that he understood the advice and the grounds for his being under suspicion and maintained that he did not require a lawyer for that day’s questioning and that he would give a statement and answer questions. He then explained that in August 2010 he had acted as an intermediary in the selling of amphetamines to R.Č. and D.P. and that between 2008 and 2010 he had on several occasions bought cocaine from the applicant for the price of 500 Croatian kunas (HRK) per gram. Lastly, he stated that he had been arrested the day before at 5 p.m. and that apart from the use of force during his arrest he did not have any objections regarding the police’s conduct during his stay in the police station. He signed the report on his questioning without making any objections as to its contents. He was then released. The applicant’s arrest and pre-trial investigation
7. On 27 October 2010 the police arrested the applicant on suspicion of drug abuse. 8. On the same day, on the basis of a warrant issued by the Dubrovnik County Court (Županijski sud u Dubrovniku), the police searched the applicant’s house and seized items such as a paper containing a list of different kinds of drugs and the duration of their presence in the human body, documents concerning various property-ownership transfers, the record of a statement one L.P. had given to the investigating judge on 7 October 2010, a record of a statement one M.V. had given to the police on 20 May 2010, documents concerning a police inquiry conducted in respect of the applicant in 2008, a device used to detect hidden cameras, twenty-nine envelopes with various dates and amounts of money written on them and a grey hydraulic press (hidraulična dizalica). 9. On the same day the police prepared a special report for the Dubrovnik County State Attorney’s Office (Županijsko državno odvjetništvo u Dubrovniku) which stated that the results of the police inquiry indicated reasonable grounds for suspicion that the applicant had sold drugs to D.N., I.G., Goran Kovačević and M.V. in the period between 2003 and 2010. 10. On 28 October 2010 the applicant was questioned by the investigating judge in the presence of his chosen lawyer, D.H. He denied all allegations against him and submitted that he was a victim of a police conspiracy and that some of the persons to whom he had allegedly sold drugs had previously made death threats against him. 11. On 29 October 2010 the investigating judge opened an investigation in respect of the applicant and Goran Kovačević on suspicion of their having engaged in drug abuse. 12. The applicant appealed against that decision, submitting that there was no evidence that he had sold cocaine to D.N., I.G., Goran Kovačević and M.V. Although it was true that M.V. had told the police that he had bought cocaine from him, M.V. had retracted that statement before the Dubrovnik County Court, explaining that he had been forced by the police to say something along those lines. 13. On 2 November 2010 the Dubrovnik County Court dismissed the applicant’s appeal as unfounded. 14. On 15 November 2010 the Dubrovnik County State Attorney’s Office asked the investigating judge to extend the scope of the investigation against the applicant, explaining that from the police report it followed that he had also been selling drugs to Z.M. On 26 November 2010 the investigating judge extended the scope of investigation against the applicant on suspicion that between 2006 and 2010 he had also been selling drugs to Z.M. 15. On 23 November 2010 the investigating judge questioned I.G. as a witness and on 26 November 2010 D.N. as a witness. The applicant’s lawyer was present during that questioning and was given an opportunity to question them. Both witnesses submitted that they had often bought drugs from the applicant. 16. In particular, I.G. submitted that he had been buying cocaine from the applicant between 2003 and 2005. He had been buying some 25-30 grams per month for the price of HRK 500 per gram. He would usually pick up the drugs from the applicant somewhere in the city or at the applicant’s home, where the applicant had shown him pure cocaine and different powders he had mixed with it in order to create a bigger quantity, as well as the devices he had used for mixing and pressing, such as a grey press that he had kept beneath the stairs outside the house. He described the house in question and stated that the applicant lived on the first floor and his parents on the ground floor. He submitted that sometimes he would pick up the drugs from V.V. (who had been the best man at his wedding) who had acted as an intermediary for the applicant. He said that he had known D.N. very well and that he had been present when V.V. had given him 10 or sometimes 30 grams of cocaine. V.V. had told him that D.N. had not actually been paying for the cocaine. Instead, D.N. had promised to give the applicant his flat in Zagreb. I.G. furthermore submitted that in 2006 he had stopped communicating with the applicant and V.V. and had stopped using cocaine. He had ended his relations with the applicant because he had learned that the applicant had reported him to the police for possessing 20 grams of heroin. He had been angry with the applicant for betraying him, so several days after the police had found heroin in his flat he had slapped the applicant and jumped on his car and damaged it. He lastly submitted that in 1988 he had undergone a five-day psychiatric treatment. When asked by the applicant’s lawyer how many times he had told that story to the police, to the judge or to the State Attorney, I.G. replied that he did not wish to answer such a question and that nobody had instructed him to give his testimony. 17. D.N. submitted that he had been buying cocaine from the applicant between 2003 and 2005. Between these years he had purchased around 15‑20 grams of cocaine per month from the applicant for the price of HRK 500 per gram. Sometimes he would pick up the drugs from the applicant personally and sometimes from two other persons, one of whom was V.V. He would give the money to the person from whom he would pick up the drugs. He submitted that he had sold his flat in Zagreb to the applicant’s sister, and his land in Hvar to the applicant. He had used the purchase payment for his personal needs and for buying cocaine. Owing to his working too much and taking too much cocaine his health had at some point deteriorated and he had been deprived of his legal capacity for a period of two years. He lastly submitted that nobody had instructed him to, or blackmailed him into, giving his testimony. 18. On 2 December 2010 the investigating judge decided to join the investigation against the applicant and Goran Kovačević with the investigation being conducted against V.V. 19. On 8 December 2010 the investigating judge questioned as witnesses D.P., R.Č., Z.M., S.M. and I.K. in the presence of the applicant’s lawyer. They all denied having bought drugs from the applicant, V.V. and Goran Kovačević. In particular, D.P. and R.Č. stated that they had never bought amphetamines from Goran Kovačević. Z.M. denied having bought drugs from the applicant and V.V. S.M. and I.K. denied having bought drugs from V.V. 20. On 15 December 2010 the Dubrovnik County State Attorney’s Office lodged a request with the investigating judge for the investigation against the applicant and V.V. to be extended, explaining that from the police report it followed that they had also been selling drugs to N.R. On 21 December 2010 the investigating judge extended the investigation. On 29 December 2010 N.R. was questioned by the investigating judge in the presence of the applicant’s lawyer. He denied having bought drugs from the applicant and V.V. 21. On 29 December 2010 the investigating judge excluded from the case file police records on the questioning of different persons, since their use was not allowed in criminal proceedings. In his decision he explicitly stated the pages of the case file which were being excluded. He ordered that upon the decision on excluding the records from the case file becoming final, the excluded documents should be sealed in a special envelope and guarded by him and that they could not be viewed or used in the criminal proceedings. The excluded records cannot be found in the case file. Indictment
22. On 5 January 2011 the Dubrovnik County State Attorney’s Office indicted the applicant, Goran Kovačević, and V.V for drug abuse. In particular, the applicant was accused of purchasing and then selling cocaine to D.N. between 2003 and 2005, to I.G. between 2003 and 2005, and to Goran Kovačević between 2008 and 2010. V.V. was accused of selling cocaine to D.N. and I.G. between 2003 and 2005, and Goran Kovačević was accused of acting as an intermediary in selling amphetamines to R.Č. and D.P. in 2010. 23. The Dubrovnik County State Attorney’s Office decided not to pursue prosecution against the applicant and V.V. as regards selling drugs to Z.M. and N.R., explaining that statements that Z.M. and N.R. had given during the investigation had not confirmed the reasonable suspicion that they had bought cocaine from the applicant and V.V. 24. On 9 January 2011 the applicant lodged an objection against the indictment. He contended that D.N., who had testified against him during the pre-trial proceedings, was mentally ill and had been divested of his legal capacity from July 2001 until November 2003, and that unless a psychiatric expert report to the contrary could be obtained, his testimony should not be trusted. He submitted that D.N.’s legal capacity had been restored because it had been established that he had stopped taking drugs, whereas in the present proceedings D.N. had claimed to have purchased cocaine from the applicant in that period. He furthermore submitted that I.G. had falsely accused him of selling drugs because he had wanted revenge for the fact that (according to I.G.) the applicant had reported him to the police for heroin possession. In 2007 I.G. had been making death threats against him and had been inciting other persons to make false accusations against him, of which the applicant had notified the Dubrovnik Municipal State Attorney’s Office. The applicant submitted a copy of a psychiatric report obtained in May 2010 by the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) in respect of another criminal case. According to that report I.G. had suffered from personality and bipolar disorders but had been capable of understanding the nature and purpose of the criminal proceedings and the consequences of procedural actions and had been able to participate in that trial. The report noted that I.G. had undergone psychotic phases in 1989 and 1998, but that in 2007 he had voluntarily applied to a clinic for treatment, which meant that he had not been in a psychotic phase. The report furthermore noted that for a longer period of time he had been stable, without any signs of psychosis, and that at one point in April 2010 he had displayed aggressive behaviour, which had passed the following day. 25. On 11 March 2011 the Dubrovnik County Court, sitting as a three‑judge bench, dismissed the applicant’s objection against the indictment as unfounded. Trial hearings
26. The hearing of 3 May 2011 was adjourned in order for V.V.’s ability to follow the trial to be determined. 27. The hearing of 7 June 2011, which D.N., I.G., D.P. and R.Č. attended, was adjourned owing to the illness of the presiding judge, Z.Č. In the record of the hearing it was noted that G.Đ., a police officer of the Dubrovnik-Neretva County Police Department, had been present in the court room as a member of the public. 28. At a hearing held on 20 June 2011, the Dubrovnik County Court (“the trial court”) established the identity of the defendants and the charges brought against them. The trial court then ordered that police records on the questioning of D.N. on 26 October 2010 and of I.K. on 17 August 2010, as well as a police report of 6 June 2008, be excluded from the case file. Those records, however, can still be found in the case file. According to the police record on the questioning of D.N. on 26 October 2010 as a suspect, D.N., in the presence of his lawyer, submitted about matters of which he subsequently extensively testified before the investigating judge and the trial court and regarding which he was questioned by the prosecution and the defence (see paragraphs 15 and 17 above and 30 below). According to the police record on the questioning of I.K. on 17 August 2010 as a suspect, I.K., in the presence of his lawyer, submitted about matters which did not concern the applicant. The police report of 6 June 2008 concerned an event involving V.V., unrelated to the charges against the applicant. 29. The remaining evidence was read aloud. The trial court then heard as witnesses D.N., R.Č. and D.P. 30. D.N. gave his statement and afterwards answered questions from the presiding judge, the prosecution and the defence (including the applicant, who put questions to D.N. in person). He submitted that he had been buying drugs from the applicant between 2002 and 2006, that he had sold a flat in Zagreb and an attic in Hvar to the husband of the applicant’s sister, and that he had sold another property in Hvar. In respect of the sale of the latter property he had negotiated with the applicant and another person named K. D.N. said that part of the purchase price had been “stated in cocaine”. He submitted that sometimes the cocaine had been delivered to him by V.V. He furthermore submitted that the applicant’s wife had approached him on two separate occasions and had offered him money not to testify against the applicant. She had suggested that he apply to be admitted to a psychiatric clinic and thus avoid having to attend the hearing. When asked by the prosecutor, D.N. submitted that he had sold his real estate partly for cash, which he had received from the applicant, and partly to cover his cocaine debt. He explained that after spending his earnings he had discussed with the applicant the possibility of selling his property to cover his cocaine debt. When asked by the applicant’s lawyer he submitted that he had been hospitalised owing to psychosis around 1997 and again in 2000, and that in 2006 he had gone to stay with a friend in Austria in order to get clean from drugs. When asked by the applicant’s lawyer who had accompanied him to the court that day, D.N. submitted that he had arrived with two police officers. He explained that he had been given police protection after the applicant’s wife had approached him with blandishments in return for not testifying against the applicant. He had not been opposed to receiving such protection because several other persons had been “provoking” him as well. In response to further questions posed by the applicant’s lawyer, D.N. described the occasions on which the applicant’s wife had approached him. He submitted that he did not remember when exactly he had been deprived of his legal capacity but said that it might have been between 2000 and 2002, during which period he had probably not been taking drugs. He furthermore replied that he knew R.Č. but had never talked to him regarding the case against the applicant, and that R.Č. had stopped communicating with him after he had given his testimony to the investigating judge. He lastly replied that he had not spoken with police officer G.Đ. about the case. He then answered questions from the applicant in person (mostly about certain property transfers) and from V.V.’s lawyer. In reply to a question from the applicant’s lawyer D.N. stated that he had not discussed with his family or anyone else the possibility of retrieving the property that he had sold off, adding that his parents were proud that he had testified in the present criminal proceedings by telling the truth. Lastly, in response to a question from the presiding judge, D.N. submitted that it was true that he would pay for the cocaine upon being served with it, as he had told the investigating judge, but that sometimes it would happen that he would not have any money with him, so he had slowly accumulated a debt. 31. R.Č. stated that he had not bought amphetamines from Goran Kovačević. He furthermore submitted that some two months previously D.N. had mentioned to him, although he had not understood him very well, that he was having some problems with the police, who had been threatening him and had promised to return him his real estates. D.P. submitted that he had not bought amphetamines from Goran Kovačević. 32. At a hearing held on 21 June 2011 the trial court heard I.G. According to the record of the hearing, after I.G. gave his personal information, he asked the presiding judge to read out to him the statement that he had given to the investigating judge on 23 November 2010. After that statement was read out, I.G. confirmed it and added that the applicant had invited him to his home a couple of times to try the cocaine he had been “cooking”, but that he had never gone to try it. He then answered questions from the prosecution and the defence. In particular, he submitted that he had seen a grey hydraulic press below the stairs outside the applicant’s house, which the applicant had told him was used for pressing cocaine. The press had had an iron cube on it. The applicant’s lawyer asked that the press in question, which had been seized on 27 October 2010 during the search of the house of the applicant and his parents’ house, be shown to I.G. Since the press was not in the court building, the hearing was rescheduled for 1 July 2011. 33. On 27 June 2011 the applicant lodged a submission complaining about the manner in which the hearing of 21 June 2011 had been conducted, and in particular about the way in which I.G. had been heard. He submitted that the trial court had – on its own initiative – offered to read out the statement that I.G. had given to the investigating judge, without firstly asking that witness to give his oral evidence at the hearing. He also submitted that I.G. had initially refused to answer the questions of the defence; and that the trial court had refused to include that incident in the record of the hearing, saying: “This is my written record of the hearing and I am going to put in it what I like.”
34. At a hearing held on 1 July 2011, the trial court continued to hear I.G. I.G. described the grey hydraulic press that he had seen below the stairs of the applicant’s house, after which the presiding judge showed him the press, which had been brought to the court. The applicant’s lawyer asked him where the iron cube that he had mentioned was, and I.G. replied that the cube was no longer there but that it was a separate component (that is to say not an integral part of the press). I.G. added that the applicant had not explained to him how the press worked; he had only told him that he used it for pressing drugs. I.G. then answered questions put by the trial court, the prosecution and defence (including by the applicant in person). He declined to answer several questions asked by the applicant’s lawyer, namely: to disclose the name of the person who had told him that the applicant had planted drugs in his apartment and the motive for giving testimony in the trial; and to disclose whether he was undergoing treatment for any mental illness. I.G. stated that he had been taking medication for his heart and for high blood pressure. The presiding judge then noted that I.G. had submitted at the beginning of his witness testimony of 21 June 2011 that fifteen days earlier a certain I.Š. had hit him on the head with a bottle and had asked him something like: “What did you do to Šekerija?”
35. After the resumption of the trial on 1 July 2011 the applicant’s lawyer, D.H., proposed to the trial court that five persons be heard as witnesses: (1) the applicant’s wife, on account of her allegedly having approached D.N., (2) a woman named I.V., who could testify about the contacts between the applicant’s wife and D.N., (3) M.V. and L.P., who could confirm R.Č.’s statement that D.N. had been incited to give false testimony against the applicant, and L.P. on account of her having been prohibited by the police from publishing an article about the applicant having been acquitted in certain other minor defence proceedings, and (4) the applicant’s mother, P.Š., in order to establish which objects seized by the police in the search of the house had belonged to the applicant and which had belonged to her and the applicant’s father. He furthermore proposed that the court examine the psychiatric expert report in respect of I.G. and the applicant’s submissions evidencing that I.G. had been threatening the applicant, which the applicant had submitted with his objection against the indictment (see paragraph 24 above). He lastly proposed that the court obtain documentation concerning D.N.’s deprivation of his legal capacity and documentation from institutions in which D.N. had been treated for his drug addiction, in order to verify the period in which he had been taking drugs. 36. Goran Kovačević’s lawyer proposed that the trial court examine the medical records of Goran Kovačević’s father. The trial court examined this medical documentation but declined to adduce and examine the other evidence proposed by the lawyer, considering it irrelevant to the proceedings at that point. 37. At the beginning of the hearing held on 4 July 2011, the presiding judge noted that just before the hearing, E.P., a member of the trial bench, had reported that he had been approached in the street by a person who had introduced himself as the applicant’s father, and who had told him in a short conversation that he should not vote for his son to be found guilty. 38. The trial court then heard the applicant. The applicant stated that at the outset of his statement to the court he had wanted to deny having had any kind of contact with drugs in his entire life and that the objects that had been seized by the police from his house had belonged to his parents. He furthermore stated that in July 2010 he had been stopped by the police and tested for drugs, and that after that test had come out negative he had sent an insulting and humiliating letter to the police and had asked for damages. He furthermore stated that he had been arrested in 2009 together with D.N. after D.N. had returned from Colombia, and that D.N. was a product of Croatian and German mental institutions and that he had been convicted for drug abuse. He furthermore submitted that it was true that he had been an intermediary in the sale of property in Hvar between D.N. and I.K., that he had paid to D.N. the purchase price (which had been given to him by his sister), and that by so doing he had intended to earn 5,000 euros (EUR) tax‑free. He submitted that in 2010 he had had an argument with D.N. because D.N. had wished to buy that land back from him, which had no longer been possible because he had sold the land on to his sister. The applicant’s sister had also bought a flat in Zagreb from D.N. The applicant furthermore submitted that he knew Goran Kovačević but had not sold drugs to him and that he had learned from his lawyer, D.H., that the police had ill-treated Goran Kovačević in the police station. He submitted that several years previously I.G. had been renting a flat from his wife but because he had not been paying rent he and V.V. had ejected him; they had thrown his belongings over the balcony and V.V. had forced I.G. down the stairs by kicking him from behind. I.G. had jumped on his Audi and damaged it, which had all been covered up at this court, and I.G. had announced that he would give a false testimony against him, which had now come to pass. In fact, I.G. had given, as described by the applicant, “his sick testimonies” (bolesna svjedočanstva) against twenty other people. He personally had not known anything about heroin being planted in I.G.’s flat and he did not wish to comment court judgments against other persons. The applicant lastly submitted that he had registered his residence at an address at which he had not been living in order to avoid traffic fines; the paper containing a list of drugs and the duration of their presence in the human body had been printed out by his wife after she had been stopped by the police and tested for drugs; the security cameras around the house had been installed by his parents to protect the house from thieves; and the envelopes inscribed with various dates and amounts of money that had been seized from his house had belonged to his father, who sold daily tourist excursion tickets. 39. The trial court then heard the applicant’s co-accused, Goran Kovačević. After Goran Kovačević gave his statement he was questioned by the presiding judge, the prosecution, his lawyer and the applicant’s lawyer. Goran Kovačević confirmed the part of his statement that he had given to the investigating judge on 22 October 2010 concerning the criminal accusation against him – namely that he had acted as an intermediary in the selling of amphetamines to R.Č. and D.P. He retracted the part of his statement concerning his buying cocaine from the applicant. He submitted that after he had been brought to the police station he had been physically and psychologically ill-treated and had been coerced into giving such a statement to the investigating judge. He explained that once he had been brought to the police station he had immediately confessed being an intermediary in the selling of amphetamines. However, when the police had started questioning him about the applicant and the cocaine, he had asked for a lawyer. Police officer L.D. had told him that D.H., the lawyer, had arrived at the entrance of the police station but had not been allowed to come in. Goran Kovačević then apologised to the applicant, stating that it was because of the false statement that he had given to the investigating judge that the applicant had ended up in pre-trial detention. Trial court’s judgment
40. On 6 July 2011 the Dubrovnik County Court, sitting as a bench composed of judge Z.Č., the presiding judge, judge M.V., and lay judges M.B., M.K. and E.P., found the applicant guilty as charged and sentenced him to eight years’ imprisonment. In particular, it found that between 2003 and 2010 the applicant had acquired larger quantities of cocaine which he had then sold for the price of HRK 500 per gram to:
D.N., between 2003 and 2005, in total at least 200 grams;
I.G., between 2003 and 2005, in total at least 500 grams; and
Goran Kovačević, between 2008 and 2010, in total several grams. It also found V.V. and Goran Kovačević guilty and sentenced them both to two years’ imprisonment. In finding the applicant guilty the trial court did not consider credible the applicant’s defence, or the allegation that his co-accused, Goran Kovačević, who had confessed to the investigating judge that he had bought cocaine from the applicant, had given his statement under police duress. The trial court furthermore held that the respective testimony of D.N. and I.G. that they had been buying cocaine from the applicant was trustworthy and consistent. The trial court also assessed the credibility of other witnesses and the material evidence that had been obtained during the proceedings and referred to the evidence proposed by the defence, which had been rejected during the trial. The relevant part of the first-instance judgment reads:
“... That [the applicant] perpetrated the criminal offence of the unlawful purchase and sale of ... cocaine to D.N., I.G. and Goran Kovačević between 2003 and 2010 – in total at least 700 grams, at a price of HRK 500 per gram – has been proved by the very honest, objective, real and detailed witness testimony of witnesses who purchased the cocaine from [the applicant], D.N., I.G. and Goran Kovačević. Therefore, this court does not believe the first sentence during [the applicant’s] questioning ... that he had never had any contact with drugs and especially not with selling drugs.
... The witness D.N., tired by long-term drug consumption, significantly weak, and without any aspirations to retrieve his lost land, the flat in Zagreb that he sold and his property in Hvar, is – without any pressure or evil motive – testifying before this court, which has no reason not to believe him, that for years, initially he said between 2003 and 2005 and at the main hearing he said for four years, he has been purchasing cocaine from [the applicant]. D.N. describes in detail how he met [the applicant] (through his wife ...), how [the applicant] offered him cocaine and how the “business” relationship was created and continued. D.N. purchased cocaine from [the applicant], which ... was given to him either by [the applicant] in person or ... by two unknown young men, one of whom was ...V.V. ... The witness D.M. submits that he had money ... invested in real estate, which [the applicant] knew full well, ... offering his services as an intermediary in those transfers of property – that is to say he was somehow always present when D.N. sold his flat in Zagreb, a floor of his house, and his land in Hvar, and he always acted as some kind of middleman for his sister, who bought all that real estate from D.N. [The applicant] has not even hidden the fact that he was somehow involved with all these sales ... he only denies the connection between the drugs and D.N.’s real estate. Why would [the applicant] always be somewhere around if D.N. was not buying drugs from him? We know why because – as honestly submitted by D.N. – he was purchasing cocaine from [the applicant] in not-so-small quantities for several years. The witness I.G. gave very similar testimony to that of the witness D.N. He also started purchasing cocaine ... from [the applicant] in 2003 ... This court believes that [these] witnesses were telling the truth because their respective testimony is very similar in the relevant parts. [The applicant’s] modus operandi was the same ... That the witness I.G. was telling the truth was confirmed by his credible description of the rooms and space in and around [the applicant’s] house, where he saw the hydraulic press with which [the applicant] pressed the mixture, which he mixed ... with different powders ... in order to increase the volume and weight of the cocaine that he was selling. That the description of the living area was accurate was proved by the police records regarding the on-site inspection ... How would I.G. have known about the press and be able to describe it so well if he had not seen it and had [the applicant] not told him what he used it for. The [applicant] is worried by the motive for I.G.’s statement. Allegedly, I.G. “promised” him long ago that he would give “false” testimony, through [the applicant’s] friend, T.Z. (actually they were all friends), whom this presiding judge sentenced to a prison term ... in criminal case no..., – a case that is pending before the appellate court ...
... the only motive of [the applicant] is money and a pleasant life without work. [The applicant] does not work, has not earned money for years, is forty years old, has a wife and a son, and does not even know the salary of his wife (who recently found herself only a seasonal job, because she certainly [contributes] only a side income to his family budget – otherwise he would know every cent of her salary). During this entire time ... .he drove high-class cars ... That [the applicant] sold cocaine ... to Goran Kovačević, was confirmed very honestly by Goran Kovačević during his questioning by the investigating judge ... At the main hearing Goran Kovačević submitted that he had been coerced into giving such a statement by the police, and denied any connection with [the applicant]. The court did not believe in that change of statement ... because Goran Kovačević himself stated at the hearing that he had given his statement to the investigating judge uninterruptedly, without the presence of the police, and that the investigating judge had warned him that ... he had the right to remain silent. Moreover, Goran Kovačević submitted that he had been beaten by the police – but [only ] during his arrest, and not in the police building during questioning ... Therefore, the very horrible act of apologising to [the applicant] at the main hearing ... points to the base intentions and to the weak character of Goran Kovačević, who by making such a statement at the hearing (that he had had nothing to do with [the applicant]), wished to help [the applicant] regarding the charges against him. The case file shows that many more people were invited before the police – witnesses who said one thing there and another thing before the investigating judge. So if they could do that, so could Goran Kovačević. Actually he could not have, because he ... told the truth – that two or three times he had purchased a gram of cocaine ... In the light of all of the above, the court established that [the applicant] committed the criminal offence ... of selling cocaine for several years in large quantities to D.N., I.G. and Goran Kovačević.
... As aggravating circumstances, it took into account the fact that the criminal offence ... was committed over a long period of time ... of almost seven years [and involved] a large quantity of drugs – drugs categorised as so-called hard drugs ...
... As further aggravating circumstances the court takes into account the high degree of consistent impudence openly displayed towards the trial court [by the applicant], [who has said] that this court is protecting a ‘sick convict’ [I.G.], ... that the court has used I.G. as a witness some twenty times ..., that he personally kicked I.G.’s belongings over the balcony, ... that he wished to avoid paying taxes on his property purchase and earn EUR 5,000 on the “black market”, that he registered another address [as his residence] in order to avoid paying traffic tickets, and that he sent an insulting and humiliating letter to the police after the police had tested him for drugs ... All these circumstances indicate a remarkable persistence, arrogance and unscrupulousness in breaking the rules of normal civilised and legally regulated behaviour in society ...
... The court dismissed the evidence submitted by [the applicant], ... deeming it not necessary for establishing the relevant facts, because those are truly sufficiently established and confirmed, and the adducing of any further evidence would be unnecessary for the rendering of a judgment based on law and justice. For example, [the applicant] proposed that the court hear as a witness L.P. (who was being tried before this court [in separate proceedings] in respect of a criminal offence ...) in order to prove that the police did not allow her, a journalist working for local newspapers ..., to write about the minor-offence proceedings against [the applicant], which in the view of this court and the trial bench was completely unnecessary and had nothing to do with this case. Likewise the proposals to verify the health condition of witnesses by examining documents from other court proceedings, ... because, as already stated, neither the presiding judge nor the trial bench members ever once suspected that the witnesses were ill or that for any other reason they should be subjected to expert assessments, neither as regards the period of perpetrating the criminal offence ...”
Applicant’s appeal against the trial court’s judgment
41. The applicant appealed against the trial court’s judgment to the Supreme Court (Vrhovni sud Republike Hrvatske). 42. He firstly pointed to the part of the trial court’s judgment that read:
“The case file shows that many more people were invited before the police – witnesses who said one thing there and another thing before the investigating judge. So if they could do that, so could Goran Kovačević.”
43. According to the applicant, the above wording indicated that the trial court had read the records of the police interviews with potential witnesses, which had not constituted evidence within the meaning of the Code of Criminal Procedure and as such should have been excluded from the case file. Moreover, it also indicated that the trial court had read the records of the statements that those persons had given to the investigating judge. Those records had never been read out at the trial, nor had those persons been heard as witnesses during the trial. 44. The applicant furthermore complained that the trial-court judgment had referred to T.Z. having previously been convicted of a crime and to criminal proceedings having been conducted against L.P., neither of which had ever been discussed in the proceedings against him or formed part of the case file. 45. He furthermore complained of the manner in which evidence had been taken from I.G. In particular, he submitted that – contrary to the relevant procedural rules – the trial court had read out the statement that I.G. had given to the investigating judge, before inviting that witness to give his testimony at the hearing. 46. The applicant furthermore complained that the statements given by D.N. to the investigating judge and to the trial court had been mutually contradictory, in that before the investigating judge D.N. had claimed that he had been buying cocaine from the applicant between 2003 and 2005 and had received the entire purchase price for the real estate that he had sold, whereas at the trial he had submitted that he had been buying cocaine between 2002 and 2006 and had received the purchase price for the real estate partly in money and partly in the form of cocaine. The applicant complained about the trial court declining to obtain, without providing any reasons, the medical documentation from which could have been established the period during which D.N. had been taking drugs. He complained about police officer G.Đ. being present at the trial hearing during which D.N. had given his statement, which according to him indicated that he had been pressured by the police. 47. The applicant furthermore complained about the trial court declining to hear his wife and I.V., L.P., M.V. and his mother as witnesses. 48. He furthermore contended that the judgment had been based on evidence given by his co-accused, Goran Kovačević, who had been brutally beaten by police officers and had been denied access to a lawyer. 49. He lastly complained that the trial court had been partial and that the judgment had been written in a subjective, emotionally charged manner. The latter had been particularly evident in the part of the judgment where the trial court had enumerated the aggravating circumstances when fixing his sentence. The applicant referred to expressions used in the wording of the trial court’s judgment, which in his view suggested a very negative subjective attitude on the part of the trial court towards the applicant; for example, the applicant noted that the trial court had stated that it “does not believe the first sentence during [the applicant’s] questioning ... that he had never had any contact with drugs and especially not with selling drugs.” According to the applicant, that allegation had been inappropriate and proved that the trial court had judged the accused’s style of defence, rather than assessing evidence proving his guilt. Supreme Court’s judgment
50. On 29 February 2012 the Supreme Court allowed the applicant’s appeal in respect of the part concerning the sentence, reduced it to six years’ imprisonment, and dismissed the remainder of the appeal. 51. The Supreme Court firstly held that when the trial court had used the expression “many people” in respect of police interviews, it had primarily been referring to the statements of witnesses who had been heard at the trial – notably, Goran Kovačević, D.P. and R.Č., and not other persons, as the applicant had suggested in his appeal. 52. The Supreme Court furthermore agreed with the applicant that the first-instance judgment should not have referred to criminal cases against T.Z. and L.P., but held that the references to those cases had not had any influence on the validity of the judgment and that the use of such evidence had not been unlawful under Article 9 of the Code of Criminal Procedure (see paragraph 59 below). 53. The Supreme Court also agreed that the beginning of the questioning of I.G. had not been in line with Article 327 of the Code of Criminal Procedure (see paragraph 59 below), but that because of how the questioning had continued it had not influenced the judgment within the meaning of Article 367(3) of that Code. In particular, after I.G.’s statement had been read out to the investigating judge, the parties – and in particular the applicant’s lawyer – had had the opportunity to thoroughly question that witness. 54. The Supreme Court furthermore held that there had been nothing to support the applicant’s argument that D.N. and I.G. had falsely testified against him. The fact that D.N. had had police protection had to be viewed together with the fact that lay judge E.P. had confirmed that he also had been pressured in relation to the criminal proceedings against the applicant. D.N.’s police protection had not influenced the credibility of his testimony. 55. The Supreme Court held, however, that the trial court had given the applicant too a harsh sentence. It held that certain circumstances that the first-instance court had viewed as aggravating should not have been assessed that way, such as the fact that the witness had been pressured by third persons, the applicant’s “attitude towards the court”, and his personal views about the witnesses. 56. As to the change of Goran Kovačević’s line of defence, the Supreme Court agreed with the trial court that this had probably been an attempt to help his co-accused, the applicant, in the trial, rather than constituting a credible reason for retracting the statement that he had given to the investigating judge that he had been buying cocaine from the applicant. The Supreme Court noted that in his appeal Goran Kovačević himself had stated that the police officers had not had any reason to exert pressure on him, given that he had immediately confessed to his crime. Having regard to the fact that Goran Kovačević’s detailed statement that he had been buying cocaine from the applicant had considerably helped to establish that the applicant had perpetrated the criminal offence of which he had been charged, the Supreme Court reduced his sentence to one year’s imprisonment. Proceedings before the Constitutional Court
57. The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), reiterating his previous arguments. 58. On 7 November 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded. The decision was served on the applicant’s lawyer on 18 November 2013. RELEVANT LEGAL FRAMEWORK
59. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006), as in force at the time, read as follows:
Article 9
“(1) The courts’ decisions [in criminal proceedings] cannot be based on unlawfully obtained evidence (unlawful evidence). (2) Unlawful evidence is evidence obtained by means of a breach of the fundamental rights of defence, the right to dignity, reputation, honour and respect for private and family life guaranteed under the Constitution, law and international law, evidence obtained in breach of the rules of criminal procedure (which are explicitly set out in this Code), and evidence that is obtained from such evidence.”
Article 78
“(1)  Where this Code provides that a judicial decision cannot be based on certain evidence, the investigating judge shall, at the request of the parties or ex officio, exclude such evidence from the file before the conclusion of the investigation ... The decision of the investigating judge is open to appellate review. (2)  After the decision [on the exclusion of evidence] becomes final, the excluded evidence ... shall be sealed in an envelope and the investigating judge shall keep it separate from other files, and it may not be consulted or used in the proceedings. (3) After the investigation is completed ..., the investigating judge shall also proceed in accordance with the provisions of paragraphs 1 and 2 of this Article in respect of all information which, in accordance with Article 183(4) and Article 186(3) of this Code, is given to the State Attorney or to police officers by citizens or by suspects who have been questioned in a manner contrary to the provisions of Article 186(5) of this Code.”
Article 186
“(1)  If there are grounds for suspecting that a criminal offence subject to public prosecution has been committed, the police shall be bound to take necessary measures aimed at discovering the perpetrator, preventing the perpetrator or accomplice from fleeing or hiding, and discovering and securing traces of the offence and objects of evidentiary value, as well as collecting all information that could be useful for conducting criminal proceedings. ... (2)  In order to fulfil the duties referred to in paragraph 1 of this Article, the police may seek information from citizens, carry out polygraph tests, voice analysis, and the necessary inspections of means of transportation, passengers and luggage, ... [and] implement measures necessary for the identification of persons and objects ... When facts and circumstances established in the course of carrying out [such duties] might be of interest to the criminal proceedings, an official record shall be made in respect of those facts and circumstances.
... (4) When collecting information, the police cannot interview citizens in their capacity as accused persons, witnesses or expert witnesses.... (5) In the course of collecting information the police authorities shall inform the suspect, pursuant to Article 237(2) of this Code. At the request of the suspect the police authorities shall allow him to appoint a lawyer, and for that purpose they shall stop interviewing the suspect until the lawyer appears or at the latest three hours from the moment that the suspect requested appointment of a lawyer. ... If the circumstances show that the chosen lawyer will not be able to appear within this period of time, the police authorities shall allow the suspect to appoint a lawyer from the list of lawyers on duty provided to police administrations by the Croatian Bar Association for the territory of the county [in question] ... If the suspect does not appoint a lawyer or if the requested lawyer fails to appear within the provided period of time, the police authorities may resume their interview with the suspect ... The State Attorney has the right to be present during the interview. The record of any statement made by the defendant to the police authorities in the presence of a lawyer may be used as evidence in the criminal proceedings.
...”
Article 301(3)
“If the presiding judge establishes that case file contains records or information referred to in Article 78 of this Code, he or she shall exclude such evidence from the file before the trial hearing is scheduled, and when the decision [on the exclusion of evidence] becomes final, the excluded evidence shall be handed over in an envelope to the investigating judge in order to keep it separate from other files.”
Article 327
“If a witness or expert witness stated, during previous questioning, facts which he or she no longer recalls, or contradicts a previous statement that he or she has made, the previous statement shall be presented to him or her – that is to say he or she will be cautioned about these contradictory statements and asked why he or she is giving different testimony. If necessary, his or her previous statement (or part of that statement) shall be read out.”
Article 367(3)
“A grave breach of criminal procedure also exists if the court, in the course of the preparation for the main hearing, or during the main hearing, or when rendering its judgement, fails to apply or incorrectly applies any of the provisions of this Code or violates a right of the defence at the main hearing, provided that [so doing] influences or could influence that judgement.”
60. Relevant parts of Opinion No. 11 (2008) of the Consultative Council of European Judges (CJJE) on the quality of judicial decisions, dated 18 December 2008, reads as follows:
“37. The reasoning must reflect the judges’ compliance with the principles enunciated by the European Court of Human Rights (namely the respect for the right of defence and the right to a fair trial). Where provisional decisions concern individual freedoms (e.g. arrest warrants) or may affect the rights of individuals or assets (e.g. the provisional custody of a child or the preventive attachment of real property or the seizure of bank accounts), an appropriate statement of the reasons is required. 38. The statement of the reasons must respond to the parties’ submissions, i.e. to their different heads of claim and to their grounds of defence. This is an essential safeguard because it allows litigants to ensure that their submissions have been examined and therefore that the judge has taken them into account. The reasoning must be free of any insulting or unflattering remarks about the parties.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 OF THE CONVENTION
61. The applicant complained that the criminal proceedings against him had been unfair. He alleged in particular that:
(i)   the principles of equality of arms and adversarial trial had been breached as regards the manner in which the evidence had been taken;
(ii)  the trial court had lacked impartiality; and
(iii)  he had not been able to secure the attendance of witnesses on his behalf under the same conditions as witnesses against him. 62. He relied on Article 6 §§ 1 and 3 (d) of the Convention which, in so far as relevant, reads:
“1. In the determination of...any criminal charge against him, everyone is entitled to a fair and public hearing...by an independent and impartial tribunal.... 3. Everyone charged with a criminal offence has the following minimum rights:
... (d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
Admissibility
63. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Articles 34 and 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ arguments

(a)   The applicant
64. The applicant complained under Article 6 of the Convention that he had not had a fair trial. He relied on the following three aspects of the proceedings which, taken cumulatively, in his view had rendered the proceedings before the national courts unfair. (i)  Equality of arms and adversarial hearing
(α)   The taking of evidence by witnesses
65. The applicant contended that the trial court had read out the statement that I.G. had given to the investigation judge, without firstly asking that witness to give his oral evidence at the hearing in open court. That had been contrary to the relevant procedural rules. Furthermore, at the hearing in question that witness had refused to answer questions from the defence, and the presiding judge had refused a request by the applicant’s lawyer for that to be noted in the record of the hearing, saying that “This is my written record of the hearing and I am going to put in it what I like.”
66. The applicant submitted that he had been convicted solely on the basis of the contradictory witness testimony of I.G. and D.N., who were mentally-ill, hated him (I.G.) and had been manipulated by the police (D.N.), and on the basis of a statement that Goran Kovačević had given under police coercion, without there being any material evidence against him. (β)   Evidence that was not presented at the trial
67. The applicant contended that the trial court’s statement that “[t]he case file shows that many more people were invited before the police – witnesses who said one thing there and another thing before the investigating judge” indicated that the trial court had read statements given by potential witnesses to the police of a type that, under the Code of Criminal Procedure, could not serve as evidence in criminal trials and should have been excluded from the case file. Moreover, the applicant had not had an opportunity to comment on these interviews since they had not been presented at the trial. The Supreme Court had unsuccessfully tried to justify this situation by ruling that the trial court must have had in mind the statements of those witnesses who had indeed been heard at the trial. 68. Furthermore, the trial court’s judgment had cited judgments rendered in criminal proceedings against certain other persons which had not been presented as evidence during the trial. (ii)  Impartiality of the trial court
69. The applicant argued that the text of the trial court’s judgment had indicated that the trial court had read the minutes of the police interviews with potential witnesses that did not constitute evidence, within the meaning of the Code of Criminal Procedure, and as such should have been excluded from the case file. By the trial court gaining knowledge of those documents its impartiality had been put in question. 70. The applicant furthermore argued that the expressions used in the trial court’s judgment had suggested a very negative subjective attitude on the part of the trial court (and specifically, of the presiding judge) towards the applicant. (iii)  Attendance of witnesses on the applicant’s behalf
71. The applicant contended that the trial court had refused to hear all witnesses proposed by the defence, without giving adequate reasons. (b)   The Government
(i)  Equality of arms and adversarial hearing
(α)   Taking evidence from witnesses
72. The Government submitted that according to the record of the hearing of 21 June 2011, the trial court had read out the statement given by I.G. to the investigating judge only after that witness had asked the presiding judge to do so in the light of the fact that six months had passed since he had given his statement to the investigating judge. After the statement had been read out, the trial court had questioned I.G. in a detailed and objective manner, after which the prosecution and the defence had had an opportunity to thoroughly question him. The Government agreed with the Supreme Court that, given the circumstances, the manner in which the questioning of I.G. had begun had not affected the fairness of the trial. 73. The Government contended that the applicant had been convicted on the basis of the witness testimony of I.G., D.N. and Goran Kovačević, who had all given similar descriptions of the modus operandi employed by the applicant in respect of their buying cocaine from him. Moreover, I.G. had testified that he had seen a hydraulic press below the stairs outside the applicant’s house, which the applicant had told him served for pressing drugs; the hydraulic press that had been found during the search of the applicant’s house had matched I.G.’s description of it. 74. As regards the applicant’s complaint that D.N. had been accompanied to the trial hearing by a police officer who had participated in the pre-trial stage of the proceedings (implying that D.N. had been coached by the police before giving his testimony at the hearing) the Government submitted that D.N. had explained that he had been placed under police protection after the applicant’s wife had approached him with offers to change his testimony, and that he had not objected to receiving police protection. While it was true that police officer G.Đ., who had participated in the pre-trial stage of the proceedings, had appeared at the hearing at which D.N. was also present, D.N. had not given his testimony at that hearing because it had been postponed. At the following hearing D.N. had been escorted by two other police officers who, by the knowledge of the Government, had had no part in the pre-trial stage. 75. The trial court had refused to obtain medical documentation and documentation from other proceedings concerning D.N.’s and I.G.’ medical condition since it had not once suspected that those witnesses had had any mental issues which would put their testimony into doubt. The witnesses in question had given matching and logical statements and there had therefore been no need to verify their mental state. 76. The Government noted that the trial court had not considered credible the sudden change in the testimony of the applicant’s co-accused, Goran Kovačević, who had previously given a clear and unambiguous testimony to the investigating judge, corroborating his role in the unauthorised actions and incriminating the applicant. (β)   Evidence which was not presented at the trial
77. The Government submitted that the investigating judge had excluded the police notes and records before handing down the case file to the trial court. Immediately after opening the main hearing the trial court had excluded the remaining police records from the file. Hence, the trial court could not have access to them. All the witnesses had been questioned in the presence of the defence and both the applicant’s lawyer and the applicant personally had had an opportunity to question them. (ii)  Impartiality of the trial court
78. The Government submitted that there had been nothing capable of casting doubt on the impartiality of the presiding judge, judge Z.Č. He had used specific writing style to explain the established facts in an expressive manner. 79. The Government saw nothing problematic with describing the applicant’s motive for committing the criminal offence charged and convicted of. The hearing records showed that judge Z.Č. had documented all relevant information in in an objective manner throughout the whole trial and had elaborated on this information in the judgment. There was no uniform norm for writing judgments and not every judge needed to use the same style. (iii)  Attendance of witnesses on the applicant’s behalf
80. The Government submitted that the trial court had refused to hear the applicant’s wife as regards her contacts with D.N., the applicant’s mother as regards which objects seized during house search had belong to her, and journalist L.P. as regards her allegedly being prevented from publishing an article about the applicant being acquitted in minor offence proceedings, finding those proposals irrelevant for deciding the case.

Outcome for Article 6: no_violation