THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF CROATIA
No. U-III-1241/2003
Zagreb, 8 September 2005
The Constitutional Court of the Republic of Croatia, sitting in the First Panel for
Deciding on Constitutional Complaints, composed of Judge Željko Potočnjak,
President of the Panel, and Judges Ivan Matija, Agata Račan, Smiljko Sokol,
Nevenka Šernhorst and Milan Vuković, Panel Members, in the proceedings instituted
by the constitutional complaint lodged by S. Č. from Z., represented by V. D. L.,
attorney-at-law from the Law Firm D. L. from Z., at the session held on 8 September
2005, unanimously reached the following
DECISION
I.
The constitutional complaint is hereby refuse.
II.
This decision shall be published in the Official Gazette of the Republic
of Croatia, Narodne novine.
Statement of reasons
1.
The constitutional complaint was lodged against the judgment of the County
Court in Zagreb, No: Kž-1149/02-2 of 4 February 2003, rejecting the applicant’s
appeal and confirming the judgment of the Municipal Court in Zagreb, No: K-215/99
of 25 April 2002.
In the first-instance judgment the applicant was found guilty of a criminal offence
against life and limb – bodily harm referred to in Article 98 of the Penal Code
(Narodne novine, Nos. 110/97, 27/98-correction, 50/00-Decision of the Constitutional
Court of the Republic of Croatia, 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-I2892/2003 of 27 November 2003, hereinafter referred to as: KZ) and was sentenced
to thirty (30) days of imprisonment. On the grounds of Article 67, this is a suspended
prison sentence, so the punishment will not be enforced provided that the applicant
does not commit another criminal offence within the period of one (1) year.
2.
The applicant deems that the disputed decisions violate his constitutional
rights guaranteed in Article 29/1,2 line 5, as well as Article 31/1 of the Constitution of
the Republic of Croatia.
In the constitutional complaint, the applicant essentially alleges an absolutely
substantive violation of criminal procedure in Article 367/1 point 3 of the Criminal
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Procedure Act (Narodne novine, Nos. 110/97, 27/98-correction, 58/99, 112/99, 58/02,
143/02-correction and 62/03-consolidated text, hereinafter referred to as: ZKP),
because, contrary to the provisions of the ZKP, a trial hearing was held on 8 March
2002 in the absence of the applicant who had not been previously questioned (and
whose presence in such a legal situation was mandatory, pursuant to the Act). The
applicant deems that the second-instance court, in rejecting his appeal and
confirming the first-instance judgment (despite the fact that the first-instance court
substantively violated the provisions of criminal procedure), acted contrary to the
provisions of the ZKP, on the grounds of which it had been oblige to quash the firstinstance judgment and refer the matter back for retrial. In addition, the applicant
emphasizes that the factual description of the offence from the private complaint
does not contain the essential elements constituting the offence of bodily harm, but
corresponds to the civil-law institute of compensation of damage. Considering that
the private prosecutor altered the factual description of the offence at the hearing of
25 April 2002 by changing the wording to the one contained in the statement of the
judgment, the applicant deems that it was not until then (which was after the relative
statute of limitation for commencing criminal proceedings had set in) that he was
accused of intentional offence, which, in the applicant’s opinion, represents a
violation of Article 367/1 point 5 ZKP, and thus also a violation of the constitutional
right guaranteed in Article 31/1 of the Constitution.
Therefore, the applicant proposes that the Court accepts his constitutional complaint,
quashes the disputed judgments and refers the case back for retrial.
The constitutional complaint is not well founded.
3.
In accordance with Article 62/1 of the Constitutional Act on the Constitutional
Court of the Republic of Croatia (Narodne novine, Nos. 99/99, 29/02 and 49/02 –
consolidated text, hereinafter: the Constitutional Act), any person may lodge a
constitutional complaint with the Constitutional Court if he/she deems that an
individual enactment of the state governmental body, bodies of units of local and
regional government or legal persons vested with public authorities, deciding on
his/her civil rights and obligations or suspicion or indictment for an offence, infringes
his/her human right or fundamental freedom guaranteed by the Constitution, i.e.
constitutionally guaranteed right to local and regional government (hereinafter
referred to as: the constitutional right).
In respect of the constitutional complaint, the Constitutional Court shall establish,
within the limits of the grounds specified in the constitutional complaint, whether the
procedure for deciding on the applicant’s rights and obligations comprised an
unlawful encroachment on the constitutionally guaranteed human rights and
fundamental freedoms.
4.
It is evident from the file of the Municipal Court in Zagreb, No: K-215/99, that
I.B. from Z. filed a private complaint on 16 July 1999 against the applicant for the
offence of bodily harm in Article 98 KZ. The Municipal Court in Zagreb tried the
applicant and in the disputed judgment found him guilty and sentenced him.
When judging the grounds for the constitutional complaint, it must be established in
constitutional-court proceedings whether the Municipal Court in Zagreb, in the
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criminal proceedings that preceded the constitutional-court proceedings, committed
the procedural violations specified by the applicant, and (if so) to evaluate whether
this also constitutes a violation of the applicant’s constitutional rights.
The record of the trial hearing held on 8 March 2002 shows that the applicant, duly
summoned, did not appear at that hearing; instead, the applicant’s defense attorney
was present at the hearing (who excused the applicant’s absence due to a business
trip). On the grounds of Article 441/3 ZKP, the court held the hearing in the absence
of the duly summoned defendant (applicant).
The file of the Municipal Court in Zagreb clearly shows that the applicant had until
then not been questioned.
When deciding on the applicant’s appeal, the County Court in Zagreb found that the
first-instance court had substantively violated the provisions of criminal procedure in
Article 367/1 point 3 ZKP by holding the trial hearing on 8 March 2002 in the absence
of the applicant who had not previously been questioned. However, the County Court
qualified this violation as a relative violation of the provisions of criminal procedure
that did not infringe the right to a defense. In other words, in the view of the secondinstance court, this omission did not affect the validity of the first-instance decision.
5.
In accordance with Article 441/3 ZKP, the court may decide to hold a hearing
in the absence of a duly summoned defendant, provided his presence is not
necessary and providing he had previously been questioned.
Starting from the finding of this Court, mentioned in paragraphs 3 and 4 point 4 in the
reasons of this decision (that the applicant had not been questioned before 8 March
2002), and bearing in mind the provision of Article 441/3 ZKP (according to which the
preliminary questioning of the defendant is one of the cumulatively prescribed
requirements for hold a trial hearing in his absence), the Constitutional Court finds
that in this case one of the requirements prescribed by Article 441/3 ZKP for holding
a trial hearing in the absence of the accused is missing.
6.
When evaluating the grounds for the applicant’s argument about the violation
of his constitutional right to be tried in his presence, it is necessary to analyze the
entire trial held before the first-instance court, with special emphasis on the
applicant’s conduct during the criminal proceedings.
At the hearing of 26 June 2000, the applicant declared himself about the charges
saying that he does not feel guilty for the offence he was charged with.
The applicant did not attended the hearings scheduled for 25 January 2001, 21 June
2001 and 8 February 2002.
The only procedural action the court undertook at the hearing held on 8 February
2002 (which was held in the applicant’s absence) was to rule to reject the proposal of
the applicant’s defense attorney for a scene of crime investigation.
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The facts mentioned clearly show that the applicant had declared himself about the
charges prior to the trial hearing held in his absence and that his presence at the
hearing held on 8 February 2002 was not necessary.
Therefore, and bearing in mind that the applicant had failed to respond to the court
summons for the trial hearing many times, the Constitutional Court finds that - in this
case - holding a hearing in his absence (at which hearing no essential procedural
action was taken) did not violate the applicant’s constitutional right in Article 29/2 line
5 of the Constitution. This viewpoint is additionally supported by the fact that the
applicant was given an opportunity to present his defense, as well as to undertake all
legally permitted procedural acts for the protection of his rights.
7.
The provision of Article 29 paragraph 1 of the Constitution reads:
Everyone is entitled to a fair trail concerning his civil rights and obligations or
suspicion or indictment for a criminal offence, before an independent and impartial
court of law within a reasonable period of time.
Considering that the applicant was given the opportunity to follow the criminal
proceedings, to participate in the proceedings with his defense attorney, that he was
enabled to present his defense, to propose evidence in respect of decisive facts, to
undertake all legally allowed procedural actions, and that the applicant exercised his
rights, the Constitutional Court finds that the disputed judgments did not violate the
applicant’s constitutional right to a fair trial.
8.
The applicant also specifies the violation of Article 31/1 of the Constitution,
whereby no one shall be punished for an act which, before its commission, was not
defined as a punishable offence by law or international law, nor he may be sentenced
to a penalty which was not defined by law. If a less severe penalty is determined by
law after the commission of an act, such penalty shall be imposed.
Since it was found, in the criminal proceedings that preceded the constitutional-court
proceedings, that the applicant committed the offence he was charged with (and
which was determined by law as an offence), and that the penalty imposed was
determined by law, the Constitutional Court finds no violation of the applicant’s
constitutional right guaranteed in Article 31/1 of the Constitution.
9.
Therefore, on the grounds of Articles 73 and 75 of the Constitutional Act, the
Court has decided as in the statement of the decision. The publication of the decision
is based on Article 29 of the Constitutional Act.
PRESIDENT OF THE PANEL
Željko Potočnjak, LLD, m. p.