The ECHR judgment of 04 April 2017 in Matanovic v. Croatia (application No. 2742/12).
In 2012, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Croatia.
The case successfully examined the applicant's complaint about the lack of an effective judicial procedure to determine whether the evidence collected by the prosecution had to be communicated to the defense. There has been a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case did not violate the requirements of Article 8 and Article 6, paragraph 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, a public official, was placed under special surveillance as part of an investigation into alleged corruption. Later, he and several other co-accused were convicted of various crimes and sentenced to 11 years in prison. Evidence against him included records of conversations during a special surveillance operation. In the conventional proceedings, the applicant alleged in particular that he was denied access to a fair trial (Article 6 § 1 of the Convention), since he did not have access to the original records, and also because some records were not communicated to him at all that they are not relevant to his case and affect the privacy of third parties.
ISSUES OF LAW
Concerning compliance with article 6, paragraph 1, of the Convention (non-disclosure and use of evidence obtained as a result of special investigative measures). The applicant's complaints about procedural injustice relate to his limited access to the three main categories of evidence obtained through the use of tacit observation measures.
The first category concerned observation records submitted as evidence and used in the conviction of the applicant. The Court noted that the applicant had access to the transcripts of the records ordered by the investigating judge and the trial court and prepared by an expert whose independence and impartiality had never been questioned. Records were reproduced in court, the applicant had the opportunity to compare the transcript with the material reproduced, and his objections to discrepancies between the transcripts and records were duly considered, and additional examinations were appointed to eliminate these contradictions.
The applicant also took the opportunity to challenge the evidence, and the courts of the respondent State gave detailed answers to his objections. The applicant never disputed that the recorded conversations took place, and did not deny their authenticity. Proceeding from the foregoing, the Court concludes that there is no injustice regarding records belonging to the first category.
The second category concerned the applicant's and other accused's records, which were not used to convict the applicant. Regarding this category, the Court notes that, despite access to sufficiently detailed reports of his conversations with third parties, the applicant was unable to provide a specific argument as to the possible relevance of the evidence at any stage of the domestic proceedings. Thus, the Court was unable to conclude that the alleged impossibility of the applicant's access to records belonging to this category was sufficient in itself to establish a violation of his right to a fair trial. Nevertheless, in his assessment of the general fairness of the proceedings, he must take into account this restriction of the applicant's right to defense.
The third category of evidence contained records relating to other persons who had not been prosecuted or mentioned in the applicant's conviction. The applicant was denied access to any information on the grounds that he did not have the right to access the records, since they did not affect his case and concerned the private lives of others. However, there was no procedure allowing the competent court to assess, at the request of the applicant, their relevance, specifically whether they contained such detailed information that could enable the applicant to justify or reduce the punishment, or were relevant to the admissibility, credibility and completeness of the evidence submitted during the proceedings . The Supreme Court's finding that the Attorney-General had to select evidence to be used in the proceedings was at variance with the Court's case-law, according to which the procedure allowing prosecutors themselves to assess the relevance of evidence in the absence of additional procedural guarantees of protection rights does not meet the requirements of paragraph 1 Article 6 of the Convention.
Consequently, it was evident that, given the shortcomings in the procedure for disclosing the evidence in question, the applicant could not formulate a specific argument regarding the consistency of these evidence and the consideration by the competent court of his appeal in the light of his right to effective defense training. Thus, he was prevented from using the procedure by which it could be determined whether the evidence possessed by the prosecutor's office, excluded from the case file, could reduce his punishment or question the scope of his alleged criminal activity.
The violation of the requirements of Article 6 of the Convention (unanimously) was committed.
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 1,500 in respect of non-pecuniary damage (four votes in favor, with three against), the claim for compensation for pecuniary damage was rejected.
The Court also unanimously found that the requirements of Article 8 of the Convention and Article 6 § 1 of the Convention were not violated in the case, as to the applicant's allegation of incitement.