Case nº U-III/2026/2010 of June 30, 2011. Proceedings initiated in response to a constitutional complaint for the protection of constitutionally guaranteed human rights and fundamental freedoms

Resolution Date:June 30, 2011
Issuing Organization:Constitutional Court
SUMMARY

Violation of the constitutional guarantee presumption of innocence.

 
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The Constitutional Court of the Republic of Croatia, in the Second Chamber for deciding on constitutional complaints, composed of Judge Snježana Bagić, President of the Chamber, and Judges Mato Arlović, Davor Krapac, Ivan Matija, Duška Šarin and Miroslav Šeparović, Chamber Members, in proceedings originating in a constitutional complaint lodged by J. M., represented by B. Š., attorney from Z., at its session held on 30 June 2011, unanimously rendered the following

D E C I S I O N

I. The Constitutional Court finds that the manifold statements of the highest-ranking officials of the Republic of Croatia, published in the media from 17 to 22 June 2007, have violated the applicant’s guarantee of the presumption of innocence enshrined in Article 28 of the Constitution of the Republic of Croatia (Narodne novine, nos. 56/90, 135/97, 113/00, 28/01 and 76/10).

II. The applicant may claim damages for the violation of his constitutional right in point I of the operative provisions in a civil suit before a regular court.

III. In the remainder the constitutional complaint is refused.

IV. This decision shall be published in Narodne novine.

Statement of reasons

I. PROCEEDINGS BEFORE THE CONSTITUTIONAL COURT

1.- The applicant lodged the constitutional complaint further to the judgment of the Supreme Court of the Republic of Croatia (hereinafter: the Supreme Court), no.: Kž-Us 98/09-10 of 16 and 17 February 2010, whose operative provisions read as follows:

“I. The appeal of the accused J.M. is accepted in part and the appeals of the accused R. P., I. P., A. P. and M. J. in their entirety, the judgement of the court of first instance is hereby quashed

a) in the part in which, under point I of the operative provisions, the acc. J.M. has been found guilty of the criminal offence of giving a bribe under Art. 348 p. 1 of the Criminal Act and the acc. R. P. of the criminal offence of receiving a bribe under Art. 347 p. 1 of the Criminal Act,

b) in the part in which, under point 4 of the operative provisions, the acc. I.P. has been found guilty of the criminal offence of abuse of office and authority under Article 337 p. 1 of the Criminal Act and of the disclosure and unauthorised acquisition of a business secret under Art. 295 p. 1 of the Criminal Act, and the acc. A. P. and M. J. of instigating the above criminal offences, and in these parts the case is remitted to the court of first instance for a new trial.

II. In respect of the decision under point I, and of the partial acceptance of the appeal of the State Attorney, the judgement of the first-instance court on the sentence is altered and the acc. J. M. is sentenced to 4 years of imprisonment for the criminal offence of receiving a bribe under Art. 347 p. 1 of the Criminal Act, of which he was found guilty under point 5 of the operative provisions of the challenged judgement on the grounds of the same statutory provision, and to 3 years of imprisonment for the criminal offence of abuse of office and authority under Art. 337 p. 4 of the Criminal Act, of which he was found guilty under point 8 of the operative provisions of the challenged judgement on the grounds of the same statutory provisions, and the sentence is upheld to five years of imprisonment for the criminal offence of receiving a bribe, of which he was found guilty under point 1 of the operative provisions of the challenged judgement, so therefore the acc. J. M., under the application of Art. 60 p. 2 point. c) of the Criminal Act, is sentenced to the single aggregate sentence of eleven years.

Under Art. 63 of the Criminal Act, the pronounced sentence of imprisonment shall include the time spent under arrest and the time spent in detention and serving his prison sentence starting from 16 June 2007.

III. In respect of the decision under point I, the appeal lodged by the State Attorney concerning the decision about the sentence of the accused R. P., I. P., A. P. and M. J. has become meaningless.

IV. The remainders of the appeals of the State Attorney and of the acc. J.M., and the appeal of the acc. J. P. in its entirety, are rejected as ill founded and the challenged but unquashed and unaltered part the judgement of the first-instance court is upheld.”

2.- During its proceedings the Constitutional Court requested and received for inspection the file of the Zagreb County Court, and requested and received additional argumentation from the applicant’s attorney concerning the allegations about the violation of the guarantee of the presumption of innocence.

3.- Under Article 62 para. 1 of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Narodne novine, nos. 99/99, 29/02 and 49/02 – consolidated wording; hereinafter: the Constitutional Act), everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act of a state body, a body of local and regional self-government or a legal person invested with public authority, which resulted in a decision on his or her rights and obligations, or on suspicion or accusation of a criminal act, has violated his or her constitutional right.

For the Constitutional Court, the only relevant facts are those leading to the assessment that a constitutional right has been violated. In respect of this, human rights or fundamental freedoms have not been violated when the impugned judgment contravenes statutory norms, but when this breach leads to the violation of a human right or fundamental freedom enshrined in the Constitution.

Considering that in this case the criminal proceedings against the applicant, after the Supreme Court partially quashed the first-instance judgement (see point 1 above), are pending in the part concerning one criminal offence of giving a bribe under Article 348 para. 1 of the Criminal Act (Narodne novine, nos. 110/97, 27/98 - correction, 50/00 – decision of the Constitutional Court no.: U-I-241/2000 of 10 May 2000, 129/00, 51/01, 111/03 and 190/03 – decision of the Constitutional Court no.: U-I-2566/2003, U-I-2892/2003 of 27 November 2003), and that in this part the applicant may repeat some of his complaints, the Constitutional Court notes that the content of the applicant’s constitutional complaint has in this case markedly opened the issue of whether the breaches of statute before the first-instance and second-instance courts, mentioned in the constitutional complaint, may be deemed violations of human rights and fundamental freedoms guaranteed in the Constitution, or whether the applicant’s allegations are a mere repetition of the grounds for appealing against a judgment, provided for in Article 383 of the Criminal Procedure Act (Narodne novine, nos. 110/97, 27/98, 58/99, 112/99, 58/02, 143/02 and 115/06), and his dispute with the Supreme Court’s arguments in the impugned judgement in which it rejected the existence of such grounds.

4.- In its decisions the Constitutional Court has reiterated that the constitutional complaint is not a legal expedient to be used to demand that an impugned judgment be quashed because the regular court, when delivering it, violated statutory provisions, thus allegedly placing the applicant in an “unequal position” because he had been denied a statutory right (U-III-1125/1999 of 13 March 2000; Narodne novine, no. 38/00). Otherwise, the Constitutional Court would be turned into a “court of super-revision”, which is not its constitutional position and task. The Constitutional Court may only examine whether there was a constitutionally impermissible interference in human rights and fundamental freedoms in the proceedings before the regular court.

5.- A constitutionally impermissible encroachment on human rights and fundamental freedoms would occur if any of the applicant’s guaranteed constitutional rights were procedurally or substantively violated to the degree justifying suspicion that the impugned court decision had been arbitrary or wilful. For example, this degree would exist if the regular court in its impugned decision:

a) overlooked that the statutory norm it applied embodies constitutional rights or if it, in applying it, failed to properly interpret the relevant constitutional norm;

b) correctly interpreted the relevant constitutional norm, but in the case of the collision of different constitutional rights wrongly assessed which constitutional right to restrict and how, in respect of anther constitutional right;

c) did not make sure that the presentation of evidence about important facts was implemented safe from the wilfulness of the procedural bodies (e.g. neglected procedural principles such as hearing both parties, the equality of arms);

d) applied substantive law by departing from the usual practice without giving any or without giving valid reasons or applied the wrong methods of legal interpretation of a relevant legal norm, leading to an arbitrary interference in constitutional rights.

II. THE APPLICANT’S COMPLAINTS

6.- The applicant of the constitutional complaint deems that there was a violation of the constitutional rights guaranteed in Articles 14 para. 2, 26, 29 para. 1, 29 para. 2 point 2 and point 6, 29 para. 4, 31, 35, 36 of the Constitution, taken with Article 140 of the Constitution.

He also refers to a violation of Article 6 paras. 1, 2 and 3, points b and d, Article 7, Article 8 para. 1 and Articles 13 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Narodne novine - Međunarodni ugovori, nos. 18/97, 6/99, 8/99, 14/02 and 1/06; hereinafter: the Convention).

6.- 1. He deems that his constitutional right in Article 29 of the Constitution was violated because some members of the panel of judges that tried him should have been disqualified for bias (point IV of the constitutional complaint), because the first-instance court denied the defence the right to inspect part of the investigation file at the trial (see point V of the constitutional complaint) and because the first-instance court...

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