SECOND SECTION
DECISION
Application no. 33137/14
Branimir GLAVAŠ
against Croatia
The European Court of Human Rights (Second Section), sitting on
13 September 2016 as a Committee composed of:
Paul Lemmens, President,
Ksenija Turković,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 23 April 2014,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Branimir Glavaš, is a national of Croatia and
Bosnia and Herzegovina, who was born in 1956 and lives in Osijek. He was
represented before the Court by Ms V. Drenški Lasan and Mr R. Kovač,
lawyers practising in Zagreb and Osijek respectively.
2. The Croatian Government (“the Government”) were represented by
their Agent, Mrs Š. Stažnik.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised
as follows.
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GLAVAŠ v. CROATIA DECISION
1. Criminal proceedings
4. By a decision of 17 May 2006 the investigation judge of the Zagreb
County Court (Županijski sud u Zagrebu) at the request of the Zagreb
County State Attorney’s Office (Županijsko državno odvjetništvo u
Zagrebu) opened investigation against the applicant finding that there was a
reasonable suspicion that he in 1991 had detained, tortured and killed
Serbian civilians in town of Osijek, and thereby committed war crimes
against civilian population.
5. On 9 May 2007 the same State Attorney’s Office indicted the
applicant before the same court for having committed war crimes against
civilian population, and thereby instituted criminal proceedings against him.
6. By a judgement of 7 May 2009 the Zagreb County Court found the
applicant guilty as charged and sentenced him to ten years’ imprisonment.
7. By a judgment of 2 June 2010 the Supreme Court (Vrhovni sud
Republike Hrvatske) allowed an appeal by the applicant in part and reduced
his sentence to eight years’ imprisonment.
8. In the period between 3 September 2010 and 1 December 2010 the
applicant lodged altogether four constitutional complaints with the
Constitutional Court (Ustavni sud Republike Hrvatske) against the Supreme
Court’s judgment.
9. By a decision of 12 January 2015 the Constitutional Court quashed
the contested judgement and remitted the case to the Supreme Court.
10. In the fresh proceedings, by a decision of 7 June 2016 the Supreme
Court quashed the Zagreb County Court’s judgment of 7 May 2009 and
remitted the case.
11. The proceedings are currently pending before the Zagreb County
Court.
2. Relevant facts concerning the friendly-settlement proceedings before
the Court
12. On 23 April 2014 the applicant lodged his application with the
Court.
13. By letter of 14 January 2015 the applicant was informed that on
9 January 2015 the Acting President of the Section to which the case had
been allocated had decided that notice of the application should be given to
the Government. Enclosed were:
- the instructions on the procedure that the applicant was asked to
follow; and
- friendly settlement declarations (in the light of the jurisprudence and
practice of the Court, it appeared that the case could have been settled if the
Government had accepted the terms of those declarations).
14. The relevant part of those instructions reads as follows:
GLAVAŠ v. CROATIA DECISION
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3. Friendly settlements:
“In the light of the jurisprudence and practice of the Court, it appears that a case
such as this one could be settled if the parties accepted the terms of the enclosed
declaration and, in particular, if the Government made a payment to the applicant to
cover any damages, together with any costs and expenses incurred
You are invited to inform the Registry of the Court (see deadline in the margin)
whether the applicant accepts this proposal. If so, you are invited to return the
enclosed declaration, duly dated and signed. A letter in the same terms has been sent
to the Government and you will find enclosed a copy of the draft declaration sent to
them.
If the parties accept the proposal and the terms of the declarations, the Court could
then decide to strike the application out of its list in accordance with Article 39 of the
Convention.
There is a requirement of strict confidentiality in respect of friendly settlement
negotiations under Rule 62 § 2, and any proposals or submissions in this respect
should be set out in a separate document, the content of which must not be referred to
in any submissions made in the context of the main proceedings.”
15. By a letter dated 10 February 2015 the Government informed the
Court that they could not accept the friendly settlement in the present case.
16. By a letter of 24 February 2015 the Court notified the applicant
about the Government’s position suggesting that there was no basis for
reaching a friendly settlement.
17. By a letter of 27 February 2015 the applicant also declined friendly
settlement.
18. By a letter of 5 March 2015 the Government submitted that the
applicant had not respected the confidentiality of friendly-settlement
negotiations because on 4 March 2015 he had disclosed to the media the
contents of the Court’s friendly-settlement proposal. In support of their
allegations, the Government enclosed copies of the articles published on
5 March 2015 on the websites of several daily newspapers such as Jutarnji
list, Slobodna Dalmacija and 24 sata containing the applicant’s public
statements.
19. Those articles, inter alia, reported that the applicant in his public
speech given on 4 March 2015 during campaign for the parliamentary
elections referred to the contents of friendly settlement negotiations before
the Court.
20. In particular, the relevant part of the articles published in Jutarnji list
and Slobodna Dalmacija, reads as follows:
“‘I was offered a friendly settlement with the Republic of Croatia of 2,500 euros as
compensation and costs of proceedings. I said: No! I said I wanted a judgement in
which it would be written that the Republic of Croatia was at fault, that it had violated
my human, constitutional and international rights and that it had to pay me one single
euro in compensation. I am not interested in any kind of pecuniary redress but only in
legality and morality of the judgment in Strasbourg, and in finding the Republic of
Croatia responsible. By offering me a friendly settlement, the International Court
already acknowledged that the Republic of Croatia was responsible and that it had
GLAVAŠ v. CROATIA DECISION
4
violated my human rights, however, I insist that this be acknowledged by a judgement
as well.’ said Glavaš at the campaign gathering of [his political party] in Baranjsko
Petrovo Selo’”
21. The relevant part of the article published in 24 sata reads as follows:
“In his speech he mentioned a curiosity from two weeks ago when they called him
from the Strasbourg International Court and informed him of the judgement in his
favor against the Republic of Croatia [and] offering him a friendly settlement of 2,500
euros.
‘I declined that and told them I wanted a judgement in which it would be written
‘the Republic of Croatia is responsible’ and that one single euro would suffice as
compensation.”
22. On 9 March 2015 the Government’s letter of 5 March 2015
(see paragraph 18 above) was forwarded to the applicant, who was also
requested to comment on it and submit an explanation for the alleged breach
of the confidentiality of friendly-settlement negotiations.
23. By a letter dated 19 March 2015 the applicant rejected the
Government’s allegations (see paragraph 27 below).
COMPLAINT
24. The applicant complained under Article 6 § 1 of the Convention
about the excessive length of the above criminal proceedings in their part
before the Constitutional Court.
THE LAW
1. The parties’ submissions
25. The Government argued that, by disclosing the exact terms of the
friendly-settlement proposal to the media, the applicant had breached the
confidentiality of friendly-settlement negotiations, in contravention of
Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court,
which read as follows:
Article 39 of the Convention
“1. At any stage of the proceedings, the Court may place itself at the disposal of the
parties concerned with a view to securing a friendly settlement of the matter on the
basis of respect for human rights as defined in the Convention and the Protocols
thereto.
2. Proceedings conducted under paragraph 1 shall be confidential.”
GLAVAŠ v. CROATIA DECISION
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Rule 62 § 2 of the Rules
(Friendly settlement)
“In accordance with Article 39 § 2 of the Convention, the friendly-settlement
negotiations shall be confidential and without prejudice to the parties’ arguments in
the contentious proceedings. No written or oral communication and no offer or
concession made in the framework of the attempt to secure a friendly settlement may
be referred to or relied on in the contentious proceedings.”
26. The Government therefore invited the Court to either strike the
application out of its list of cases under Article 37 of the Convention or
declare it inadmissible as an abuse of the right of application under
Articles 34 and 35 of the Convention.
27. The applicant submitted that he had not made the impugned
statements reported by the media and that he had not authorised publication
of the relevant media articles. He further argued that, in any event, the
negotiations between the parties had ended before he had allegedly made
those statements, as by that time both parties had informed the Court that
there was no basis for reaching a friendly-settlement (see paragraphs 12-17
and 19-21 above).
2. The Court’s assessment
28. According to Article 39 § 2 of the Convention and Rule 62 § 2 of the
Rules of Court friendly-settlement negotiations are confidential. This rule is
absolute and does not allow for an individual assessment of how much
detail was disclosed (see Lesnina Veletrgovina d.o.o. v. the former Yugoslav
Republic of Macedonia (dec.), no. 37619/04, 2 March 2010). Noting the
importance of this principle, the Court reiterates that it cannot be ruled out
that a breach of the rule of confidentiality might, in certain circumstances,
justify the conclusion that an application is inadmissible on the ground of an
abuse of the right of application (see, for example, Lesnina Veletrgovina
d.o.o., cited above; Miroļubovs and Others v. Latvia, no. 798/05, § 68,
15 September 2009; Benjocki and Others v. Serbia (dec.), nos. 5958/07,
6561/07, 8093/07 and 9162/07, 15 December 2009; Hadrabová v. the Czech
Republic (dec.), no. 42165/02, 25 September 2007; and Popov v. Moldova,
(no. 1), no. 74153/01, § 48, 18 January 2005).
29. Turning to the present case the Court observes that three different
daily newspapers in their reports mentioned the exact amount of
compensation contained in the friendly-settlement proposal and that in all
the reports the applicant was directly quoted by the journalists
(see paragraphs 19-21 above). In the absence of any other explanation from
the applicant as to the source of that information, the Court considers
unconvincing the applicant’s argument (see paragraph 27 above) that he had
not disclosed it in his speech of 4 March 2015. The Court therefore finds
that the disclosure was attributable to the applicant.
GLAVAŠ v. CROATIA DECISION
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30. As to the applicant’s alternative argument that, by the time he had
allegedly disclosed that information, the friendly-settlement negotiations
had already ended, the Court first notes that it had previously accepted
similar argument but in different circumstances. In particular, in Lesnina
Veletrgovina case (cited above) the Court held that it would have been
disproportionate to declare the application inadmissible as an abuse of the
right of application in the situation where the applicant’s lawyer had, after
the friendly-settlement declarations had already been signed by the parties,
disclosed to the media that friendly settlement proceedings had been
underway and that a proposal had been made but had not revealed any
details, such as the amount involved or the initiatives undertaken. However,
the Court considers that the same reasoning cannot be applied in the present
case because the parties did not reach a friendly settlement and because the
applicant, by referring to the exact amount contained in the friendlysettlement proposal, disclosed details of the friendly-settlement
negotiations.
31. The Court further notes that the instructions in Croatian, enclosed
together with the Court’s letter of 9 January 2015, had made it clear that the
nature of all friendly-settlement negotiations was strictly confidential
(see paragraph 14 above). The applicant was therefore aware of this
requirement and should have complied with it in any stage of the
proceedings (see Benjocki and Others, cited above). As already noted above
(see paragraph 29 above), the Court considers that the applicant has failed to
advance any convincing reasons for not doing so.
32. In conclusion, given that the applicant intentionally made public the
terms of the friendly-settlement proposal, the Court considers that his
conduct amounts to a breach of the rule of confidentiality, which must also
be considered to constitute an abuse of the right of individual application.
33. It follows that the application is inadmissible under Article 35 § 3 (a)
of the Convention as an abuse of the right of application and must be
rejected pursuant to Article 35 § 4 thereof.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 October 2016.
Hasan Bakırcı
Deputy Registrar
Paul Lemmens
President