EHRM, 04-04-2017, nr. 2742/12

The applicant was a vice-president of the Croatian Privatisation Fund (Hrvatski fond za privatizaciju — hereinafter ‘the Fund’), a legal entity established by the State and tasked with carrying out the privatisation of publicly owned property.

In August and October 2006 M.M., a businessman from Russia, approached the State Attorney's Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta — hereinafter: ‘the State Attorney's Office’) alleging that he had been trying to make various business investments in Croatia and that he had been introduced to a certain A.P., allegedly an official of the Fund, who had offered his assistance in pursuing the project in the State. In return, A.P. had asked M.M. to deposit 2,250,000 euros (EUR) in various bank accounts.

In March 2007 an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) authorised the secret surveillance of a number of individuals, including A.P., in connection with suspicions of bribe-taking and abuse of power and authority. M.M. was granted informant status.

In the course of further investigation using secret surveillance, several meetings were recorded in which M.M., assisted by a consultant, J.K., discussed with a lawyer, A.Pi., the measures that needed to be taken in order to carry out a business project in the Zadar region. On that occasion A.Pi. mentioned the applicant as her contact in the Fund. She also stated that everybody should make out well in this business undertaking. J.K. also explained that he knew the applicant from before and that very soon they would have a meeting concerning the investment at issue.

On 3 April 2007 J.K. approached the State Attorney's Office claiming that he was the representative of M.M. and that he had already had a number of contacts with various officials concerning M.M.'s investment in Croatia. In this connection, the day before he had also contacted the applicant, in his capacity as vice-president of the Fund, who had allegedly requested a provision of 5% of the total investment value, which was approximately between EUR 23,000,000 and 25,000,000, to help with the realisation of the project. The applicant had explained to J.K. that that amount would have to be distributed to the bank accounts of three (out of five) vice-presidents of the Fund who would take part in the decision-making process. J.K. consented to act as an informant under the further guidance of the prosecuting authorities.

On 3 April 2007 the State Attorney's Office asked an investigating judge of the Zagreb County Court to authorise the use of special investigative measures in respect of the applicant, specifically the tapping of his telephone, covert surveillance of him, the use of J.K. as an informant, and conducting a simulated purchase operation.

On the same day the application was allowed and the investigating judge ordered the use of special investigative measures in respect of the applicant. The relevant part of the order reads:

In the course of the investigation, the investigating judge issued several further orders to the same effect. Various meetings between the applicant and J.K. took place. At a meeting on 11 April 2007 J.K. gave to the applicant EUR 50,000 in connection with his investment project.

On 16 June 2007, on the basis of an application by the State Attorney's Office, the investigating judge ordered the termination of the special investigative measures, indicating that their use had produced the results sought.

On 16 June 2007 the applicant was arrested and detained in connection with a suspicion that he had taken bribes and abused his power and authority in several privatisation cases.

On 18 June 2007 the State Attorney's Office forwarded to the investigating judge 288 CD recordings of the secret surveillance operation, and on 19 June 2007 it forwarded a further thirty-six CD and twenty DVD recordings.

On 19 June 2007 the State Attorney's Office asked an investigating judge of the Zagreb County Court to open an investigation in respect of the applicant and seven other individuals in connection with a suspicion of bribe-taking and offering bribes related to several investment projects in Croatia, including the one in the Zadar region (see paragraphs 9 and 10 above).

In its request for investigation the State Attorney's Office relied on the results of the special investigative measures suggesting that the applicant, in his capacity as vice-president of the Fund, had requested bribes in order to support M.M.'s investment project in the Zadar region. In particular, it was alleged that he had requested bribes amounting to EUR 220,000 and 5% of the total investment, which amounted to EUR 1,700,000. The secret recordings showed that the sealing of this agreement had taken place first on 11 April 2007 when J.K., acting as M.M.'s representative, had paid the applicant EUR 50,000, and then on 24 April 2007 when J.K. had deposited a further EUR 150,000 in a notary public's safe in the applicant's favour. The State Attorney's Office also alleged that the applicant had organised the bribery of the President of the Fund in respect of the investment in the Zadar region, and had agreed to further bribe-taking with J.K. concerning another investment project related to the privatisation of the hotels Ž. and P.

When questioned with regard to the charges against him, the applicant decided to remain silent and not to give evidence. On the basis of the available evidence, the investigating judge accepted the request of the State Attorney's Office and opened an investigation.

Meanwhile, on 20 June 2007 the State Attorney's Office forwarded 191 CD recordings to the investigating judge. It also forwarded an additional ninety-eight CD recordings to the investigating judge containing secret surveillance of individuals in respect of whom an investigation had not been opened at that time.

On 21 June 2007 the investigating judge in charge of the supervision of the special investigative measures forwarded to the investigating judge conducting the investigation 191 CD recordings and the relevant reports concerning the secret surveillance of the suspects and the informants M.M. and J.K.

On 26 July 2007 the applicant asked to have access to and to have copies of the secret surveillance CD and DVD recordings.

The investigating judge conducting the investigation commissioned a telecommunications expert report including transcripts of the relevant secret surveillance recordings. These were produced by M.Đ., a telecommunications expert. By a letter of 30 November 2007 M.Đ. returned ninety-eight secret surveillance CD recordings in the case at issue that did not contain the communications of the suspects in respect of whom the investigation had been opened.

In the course of the investigation the investigating judge authorised numerous search and seizure operations and questioned a number of witnesses in connection with the offences for which the applicant and the other suspects had been charged.

When questioned as a witness by the investigating judge, M.M. explained that J.K. had offered him the services of his company to help with a business investment in Croatia. In particular, J.K. had explained that he knew how to contact the competent State institutions and how these things could be done in a legal way. Soon afterwards they had sent a letter of intent to the Fund concerning M.M.'s investment but they had not received a reply. J.K. had then contacted the applicant, who had been his colleague at university, and arranged a meeting with him at the Fund. M.M. also explained that it was J.K. who had been in contact again with the applicant concerning the investment in the Zadar region.

The investigating judge also questioned J.K. but he was unable to give evidence owing to his medical condition and hospitalisation.

On the basis of the results of the investigation, the investigating judge twice extended the scope of the investigation to other alleged instances of bribe-taking and abuse of power and authority by the applicant.

Following the completion of the investigation, the investigating judge forwarded the case file to the State Attorney's Office for further assessment and a decision.

On 12 February 2008 the State Attorney's Office indicted the applicant and nine other individuals and brought them before the Zagreb County Court on charges of bribe-taking, offering bribes and abuse of power and authority. The applicant was indicted in his capacity as a public official on two counts of bribe-taking and bribery of the President of the Fund related to M.M.'s investment project in the Zadar region, two counts of bribe-taking related to the privatisation of the hotels Ž. and P. and the company P.O., and one count of abuse of power and authority related to the privatisation of the company B.

The indictment was based on voluminous evidence obtained during the investigation and the recordings of the applicant's telephone communications and secret surveillance of him obtained by the use of special investigative measures. In particular, the State Attorney's Office indicated the particular sequence of the relevant recordings which it intended to submit as evidence at the trial. The State Attorney's Office also asked that the case file concerning the special investigative measures be examined.

On 6 March 2008 the applicant lodged an objection against the indictment, arguing that it was confusing and incomplete. He pointed out that his position in the Fund did not fall within the scope of the definition of ‘public official’ under Article 89(3) of the Criminal Code. He further stressed that J.K., a central figure in the case, had not been questioned during the investigation. The applicant also contended that his defence rights had been breached since the defence had ‘neither seen nor heard’ the audio and video recordings on which the indictment had been based.

On 30 April 2008 a three-judge panel of the Zagreb County Court returned the indictment to the State Attorney's Office on the grounds that one count of the indictment, concerning the applicant's alleged participation in the bribery of the President of the Fund, had been confusing. It accordingly instructed the State Attorney's Office to submit an amended indictment consonant with that finding. The State Attorney's Office complied with the order and submitted an amended indictment on 9 May 2008, following which the Zagreb County Court confirmed it.

On 15 October 2008 the president of the trial panel examined the case file of the special investigative operation. On the same day she commissioned a further expert report from the telecommunications expert M.Đ. ordering him to produce transcripts of the relevant recordings relating to two meetings between the applicant and J.K.

An order for further transcription of the recordings was made on 24 October 2008. This concerned the recordings of three meetings between the applicant, J.K. and several other individuals, and the sequences of the telephone conversations and text messages concerned.

On 7 November 2008 M.Đ. produced transcripts of the recordings indicated in the Zagreb County Court's order of 15 October 2008 (see paragraph 33 above).

On 10 November 2008 the first hearing was held before the Zagreb County Court. At the hearing the trial bench forwarded the expert report of 7 November 2008 (see paragraph 35 above) to the defence. The applicant pleaded not guilty to the charges against him, contending that he had been entrapped by J.K., who was an agent provocateur. The defence lawyer of one of the co-accused contended that the defence had not been provided with the surveillance recordings and that those measures had been ordered contrary to the requirements of the relevant domestic law. The trial bench dismissed these arguments as unfounded and scheduled the examination of evidence.

On 17 November 2008 M.Đ. produced further transcripts of the secret surveillance recordings related to the Zagreb County Court's order of 24 October 2008 (see paragraph 34 above).

At the hearings on 27 and 28 November 2008 the Zagreb County Court heard evidence from J.K., who explained that he had represented Russian investors in Croatia regarding their interest in the construction of luxury villas on the site of a former brick factory in the Zadar region. He had therefore contacted the Fund and the local authorities in Zadar in order to complete all the relevant administrative matters for the investment. J.K. stated that he had had several meetings with the applicant and that at one point the applicant had requested a bribe in order to ensure the realisation of the project. J.K. had reported that to the State Attorney's Office and then he had consented to act as an informant. He further explained that he had given EUR 50,000 in cash to the applicant and that, at the applicant's request, he had deposited a further EUR 150,000 in a notary public's safe. It had been also agreed that J.K. would pay EUR 1,500,000 on completion of the project.

On 2 December 2008 the Zagreb County Court commissioned another expert report from M.Đ. concerning several particular sequences of the secret surveillance recordings.

On 9 December 2008 M.Đ. produced further transcripts of the secret surveillance recordings related to the Zagreb County Court's order of 2 December 2008 (see paragraph 39 above).

The expert report was served on the defence at a hearing on 10 December 2008. At the same hearing the trial bench heard evidence from M.M. He explained that the relevant contacts with the applicant had been arranged and directed by J.K., and that he had not personally participated in any illegal transactions in the applicant's favour.

At the same hearing the defence counsel reiterated their application for access to the secret surveillance recordings (see paragraphs 31 and 36 above). They argued that according to the available information there were in total 515 CD and 160 DVD recordings which had never been provided to the defence. In these circumstances, the defence counsel contended that they had not had an effective opportunity to prepare for the case. They also asked for access to all the recordings since it was possible that some of them contained exonerating information, which the defence could then submit as evidence.

The trial bench dismissed the application by the defence on the grounds that the recordings which were to be examined at the trial as evidence had been duly transcribed by an expert and that the relevant transcripts had been served on the defence. In the trial bench's view, this allowed the defence sufficient time and facilities to prepare for the case as they would be able to raise all objections concerning the recordings after their examination at the trial. Moreover, the trial bench stressed that the sole purpose of the recordings was to examine them during the trial and that Article 155 § 1 of the Code of Criminal Procedure, although providing for the possibility of access to and copying of the case file, did not envisage the copying of CD and DVD material. The trial bench also stressed that the defence could have examined the relevant material in the court-house in the same manner as they had generally examined the case files.

On 10 December 2008 the defence counsel sent a joint statement to the Croatian Bar Association (Hrvatska odvjetnička komora) complaining that they had been unable to effectively carry out their tasks as defence lawyers since they had been denied access to the secret surveillance recordings. They also contended that the evidence had been hidden from the defence and that it had been impossible for them to identify whether certain recordings could exonerate their clients or whether there had been suggestions of unlawfulness in some of them.

At a hearing on 11 December 2008 the trial bench found that there were in total 212 CD and twenty-seven DVD recordings which had been provided to the court with the indictment of the accused. There were also ninety-eight CD recordings from the same secret surveillance operation but which concerned different persons and not the accused.

On 12 December 2008 another hearing was held before the Zagreb County Court at which the defence asked for an adjournment in order to examine the case file concerning the secret surveillance operation. The defence argued that they wanted to examine all the circumstances in which the secret surveillance had been ordered and conducted. The trial bench dismissed the request by the defence on the grounds that the case file concerning the secret surveillance order had been incorporated into the case file concerning the criminal proceedings at issue and could therefore have been consulted by the defence. The trial bench also reiterated its previous arguments concerning the reason for the dismissal of the application by the defence to obtain the copies of the CD and DVD material.

On 12 December 2008 the defence counsel sent a letter to the Zagreb County Court asking for access to and the possibility to examine the secret surveillance recordings. They stressed that the CD and DVD material had never been made available to the defence and that there were no technical means available in the court-house which would allow for the examination of the recordings by the defence. They also pointed out that because of the technical impossibility of examining the recordings in the court-house, the practice of the Zagreb County Court in several other cases had been to make copies of the CD and DVD recordings and to send them to the defence. In these circumstances, the defence argued that the Convention rights of the accused to effectively prepare their defence had been breached.

On 12 December 2008 the president of the trial panel commissioned another expert report from M.Đ. concerning several further secret surveillance recordings.

On 14 December 2008 defence counsel for one of the co-accused sent a letter to the President of the Zagreb County Court indicating that it had been impossible for the defence to obtain access to and to examine the secret surveillance recordings by any means whatsoever.

Further hearings before the Zagreb County Court were held on 15 and between 17 and 19 December 2008 at which the secret surveillance recordings were played back. The applicant argued that the recordings were incomplete and confusing and that there were discrepancies between the transcripts and the recordings. He contended that it was impossible for his counsel to work thoroughly since they had not had access to the recordings. The lead prosecutor also indicated that there were certain discrepancies between the transcripts and the recordings, which she then tried to clarify at the hearing. The trial court ordered the State Attorney's Office to provide the relevant clarifications and it also commissioned a report from the expert M.Đ. in order to provide explanations concerning his particular findings.

Meanwhile, on 18 December 2008 M.Đ. produced further transcripts of the secret surveillance recordings related to the Zagreb County Court's order of 12 December 2008 (see paragraph 48 above).

On 22 December 2008 the president of the trial panel commissioned another expert report from M.Đ. concerning several other secret surveillance recordings. The expert produced his additional report on 2 January 2009.

At the hearings between 12 and 14 January 2009 additional secret surveillance recordings were examined. The applicant argued that he had been entrapped and that the recordings were unlawful evidence.

Further hearings before the Zagreb County Court were held between 26 and 29 January; 11–13 and 16–17 February; 4–6 and 9–10 March 2009 at which the trial court heard witnesses and examined further secret surveillance recordings.

On 9 March 2009 the applicant asked the Zagreb County Court to again question the informant J.K. and to take further evidence concerning his activities in the Fund.

A hearing was held on 12 March 2009 where the trial bench heard further witnesses.

At a hearing on 16 March 2009 the State Attorney's Office asked that further secret surveillance recordings be admitted into evidence and examined. The applicant contended that the recordings had been unlawfully obtained as the use of secret surveillance measures had been ordered contrary to the requirements of the relevant domestic law. The trial bench accepted the request of the State Attorney's Office and commissioned an expert report from M.Đ., instructing him to provide transcripts of the recordings.

Further hearings were held on 17, 23–26 and 30 March 2009 at which the trial bench heard evidence from several witnesses.

On 30 March 2009 M.Đ. produced transcripts of the secret surveillance recordings related to the Zagreb County Court's order of 16 March 2009 (see paragraph 57 above).

Further hearings were held on 15–17 and 20 April 2009 at which the trial bench heard further witnesses. The applicant contended that the initial contacts of J.K. and M.M. with the State Attorney's Office showed that they had been prepared to act as agents provocateurs and that he had been entrapped into engaging in illegal activities. He therefore asked that the evidence obtained by the use of informants be excluded as unlawfully obtained. The trial bench dismissed the applicant's arguments on the grounds that nothing suggested that he had been entrapped.

At the hearings between 22–24 and 27–28 April 2009 the trial bench questioned the accused. The applicant stated that he had been incited to engage in illegal activities by J.K. but he refused to answer any further questions on the matter.

On 29 April 2009 the State Attorney's Office submitted an amended indictment specifying the charges against the accused on the basis of the evidence adduced at the trial. At a hearing on 5 May 2009 the applicant pleaded not guilty to the amended indictment. He reiterated his arguments that he had been entrapped by J.K. and that he had not taken any actions which he had not been entitled to take as vice-president of the Fund.

Further hearings were held between 8 and 12 May 2009 at which the trial bench heard the parties' closing arguments.

On 15 May 2009 the Zagreb County Court delivered a judgment finding that the applicant, in his capacity as a public official as defined under Article 89(3) of the Criminal Code, had taken bribes (Article 347 § 1 of the Criminal Code), facilitated bribe-taking (Article 348 § 1 of the Criminal Code) and abused his power and authority (Article 337 §§ 1, 3 and 4 of the Criminal Code) in connection with M.M.'s investment project in the Zadar region, the privatisation of the hotels Ž. and P. and the privatisation of the company B. The court sentenced him to eleven years' imprisonment. At the same time, it acquitted the applicant on charges of bribe-taking related to the privatisation of the company P.O. (see paragraph 29 above).

The Zagreb County Court explained that all the relevant facts concerning the circumstances of the case had been duly established and that therefore there was no reason for the examination of further evidence requested by the applicant.

As regards the application by the defence to obtain the secret surveillance recordings and a complaint of non-disclosure of certain recordings, the Zagreb County Court noted:

As to the applicant's plea of entrapment, the Zagreb County Court noted:

With regard to the charges against the applicant and the evidence obtained by the use of informants, the Zagreb County Court extensively examined the secret surveillance recordings. It in particular analysed the recordings concerning a meeting on 3 April 2007 where the applicant had indicated to J.K. that a deposit should be made with regard to the investment and where he had also assured J.K. that the project would pass the procedure. During the conversation the applicant had explained to J.K. that it was usual to remunerate for lobbying and he had further stated the following:

The applicant challenged the first-instance judgment by lodging an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske). He contended that he had been entrapped and unlawfully and unjustifiably placed under secret surveillance. He pointed out in particular that the secret surveillance orders had not been properly reasoned and had been issued under the Code of Criminal Procedure and not the Office for the Suppression of Corruption and Organised Crime Act (hereinafter ‘the OSCOC Act’). He also complained that the relevant evidence had not been disclosed to the defence, and that the first-instance court had erred in the legal qualification of his position as falling under the term ‘public official’ under Article 89 § 3 of the Criminal Code.

On 17 February 2010 the Supreme Court quashed the first-instance judgment in respect of the charges of bribery of the President of the Fund related to M.M.'s investment project in the Zadar region and ordered a retrial. At the same time, it upheld the applicant's conviction on charges of bribe-taking under Article 347 § 1 of the Criminal Code and abuse of power and authority under Article 337 § 4 of the Criminal Code.

As to the applicant's complaint concerning the unlawfulness of the secret surveillance measures, the Supreme Court noted:

As to the applicant's plea of entrapment, the Supreme Court held:

With respect to the complaint about the non-disclosure of evidence, the Supreme Court noted:

As regards the applicant's complaint of the erroneous legal qualification of his position, the Supreme Court noted that the applicant's position in the Fund had not been one of a ‘public official’ but rather of a ‘responsible person’ under Article 89 §§ 6 and 7 of the Criminal Code. However, in the Supreme Court's view, this did not render the conviction unlawful. In this connection the Supreme Court explained:

On 20 April 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating his arguments of entrapment, the unlawfulness of the secret surveillance orders, the lack of access to evidence and the erroneous legal qualification of his conviction. He relied, inter alia, on Articles 29 § 1, 31, 35 and 36 of the Constitution and Articles 6 §§ 1 and 3 (b) and 8 of the Convention. The applicant also complained that the statements of various public officials breached of his right to the presumption of innocence.

On 30 June 2011 the Constitutional Court, relying on the Court's case-law in Peša v. Croatia (no. 40523/08, 8 April 2010) found a violation of the applicant's right to the presumption of innocence but dismissed his other complaints, endorsing the findings and reasoning of the Supreme Court.

Meanwhile, on 19 September 2011, following a retrial in respect of the charges of bribery of the President of the Fund related to M.M.'s investment project in the Zadar region (see paragraph 70 above), the Zagreb County Court acquitted the applicant, and this judgment was confirmed by the Supreme Court on 18 January 2012.

On 1 June 2012 the applicant, represented by I.F., a lawyer, lodged an application for the reopening of the proceedings before the Zagreb County Court. He relied, in particular, on a document allegedly issued by the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske) on 3 March 1993 indicating that J.K. had worked as a police officer in the period between 1974 and 1993. Together with the document in question the applicant submitted a written statement by A.P., a lawyer, indicating that the document had been ‘accidently’ left in her office by M.M. some time in May 2007. The applicant contended that this shed light on the actions of J.K., who had acted as an agent provocateur in his case.

On 24 January 2014 the Zagreb County Court dismissed the applicant's application for the reopening of the proceedings on the grounds that, even if the document submitted by the applicant suggested that J.K. had worked as a police officer, there was no doubt that he had not been a police officer at the moment when he had acted as an informant in the applicant's case. The Zagreb County Court also considered that there were no new relevant facts warranting the reopening of the proceedings.

The applicant appealed against the above decision to the Supreme Court on 13 February 2014; it appears that the proceedings are still pending.

The Government submitted that the applicant had been under secret surveillance between 3 April and 16 June 2007, and that he had learned of this when the indictment had been lodged on 12 February 2008. Accordingly, in the Government's view, the six-month time-limit had started running from that time and there had been no reason for the applicant to wait for the outcome of the criminal proceedings. Furthermore, the Government argued that the applicant had failed to raise his Article 8 complaints in his appeal to the Supreme Court and his constitutional complaint before the Constitutional Court, and had therefore failed to properly exhaust the domestic remedies. The Government pointed out that the document, purportedly showing that J.K. had worked as a police officer, which the applicant had submitted with his observations to the Court of 31 December 2013, was a forgery. They provided a letter of the Ministry of the Interior of 27 January 2014 indicating that the document in question had never been issued in respect of J.K. The Government therefore considered that the applicant's representative should be excluded from the proceedings under Rule 44D of the Rules of Court because she had provided falsified documents to the Court and had also provided certain confidential documents from other, unrelated, proceedings at the domestic level. Lastly, the Government considered that the applicant's complaints were premature since the application for the reopening of the proceedings was pending before the domestic courts.

The applicant pointed out that he had properly raised his Article 8 complaint before the competent domestic authorities, including the Constitutional Court, and had brought his complaints to the Court only after the Constitutional Court had dismissed his constitutional complaint. The applicant therefore considered that he had properly exhausted all domestic remedies and complied with the six-month time-limit. With regard to the Government's request for the exclusion of his representative from the proceedings owing to her reliance on an allegedly forged document, the applicant stressed that the document at issue, purportedly showing that J.K. had worked for the police, had also been submitted before the Zagreb County Court together with his application for the reopening of the proceedings. The Zagreb County Court had not found that the document had been forged. It had relied on it when establishing the relevant facts of the case but had then dismissed the application for the reopening on grounds unrelated to the alleged forgery of documents.

The Court notes at the outset that in the Dragojević case it has already examined and dismissed the same objection raised by the Government in the case at hand concerning the applicant's compliance with the six-month time-limit (see Dragojević, cited above, § 72). The Court sees no reason to depart from this case-law in the present case. It therefore dismisses the Government's objection.

The Court also notes, contrary to what the Government have asserted, that in his appeal before the Supreme Court (see paragraph 70 above) and his constitutional complaint before the Constitutional Court (see paragraph 75 above) the applicant complained that the secret surveillance of him had been contrary to the relevant domestic law (compare Dragojević, cited above, §§ 72–73). Moreover, in his constitutional complaint the applicant explicitly relied on the relevant provisions of the Constitution and Article 8 of the Convention. In these circumstances, the Court finds that the applicant properly exhausted the domestic remedies. The Government's objection should therefore be dismissed.

With regard to the Government's submission concerning the alleged abusive conduct of the applicant's representative in submitting forged documents to the Court, the Court refers to its case-law concerning the concept of ‘abuse’, within the meaning of Article 35 § 3 of the Convention, as recently set out in the Gross judgment (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014; see also Petrović v. Serbia (dec.), no. 56551/11 et al., 18 October 2011).

The Court notes that the document in question, purportedly showing that J.K. had previously worked as a police officer, was submitted to the Court by the applicant's representative Ms Bojić as an annex to her submission of 31 December 2013. The same document seems to originate from the office of another lawyer, A.P.; that document had been submitted by the applicant's legal representative at the domestic level, I.F., in support of an application for the reopening of the criminal proceedings before the Zagreb County Court (see paragraph 78 above). Indeed, as the applicant pointed out, the Zagreb County Court did not go into the question of the validity of the document at issue but, taking note of its substance, dismissed the applicant's application for the reopening of the proceedings on different grounds (see paragraph 79 above). The Government, however, subsequently obtained a letter of the Ministry of the Interior, dated 27 January 2014, indicating that the document at issue was a forgery.

In these circumstances, the Court notes that the true nature of the document at issue became known only through the Ministry of the Interior's letter of 27 January 2014 and that neither the applicant's lawyer at the domestic level nor the competent domestic courts had previously had any doubt as to the authenticity of the document in question. In these circumstances, the Court cannot establish that the applicant's representative before it, Ms Bojić, knowingly based the applicant's submission on untrue facts. Nor does it find that she made other misleading or inappropriate submissions before it. The Court therefore dismisses the Government's objection of abuse by the applicant's representative.

Lastly, with regard to the Government's submission that the applicant's complaints are premature because of the pending application for the reopening of the criminal proceedings, the Court refers to its well-established case-law according to which Article 35 does not normally require resort to extraordinary remedies, such as an application for retrial or other means of reopening judicial proceedings in a case (see, amongst many other authorities, Martynets v. Russia (dec.), no. 29612/09, 5 November 2009, and the cases cited therein). Accordingly, as such extraordinary procedures are outside the normal chain of domestic remedies, the Court cannot find that the applicant's complaints are premature because of the pending proceedings for the reopening of the criminal proceedings. The Government's objection should therefore be rejected.

The Court notes that the applicant's complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds (see paragraphs 102-103 and 106-107 above). It must therefore be declared admissible.

The Court notes that the applicant's complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds (see paragraphs 102-103 and 106-107 above). They must therefore be declared admissible.

The applicant claimed EUR 126,400 in respect of pecuniary damage, related to the loss of earnings due to his imprisonment, and EUR 90,000 in respect of non-pecuniary damage.

The Government considered the applicant's claim excessive, unfounded and unsubstantiated.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. With regard to the claim for non-pecuniary damage, the Court notes that the finding of a breach of the applicant's right to a fair trial in the present case does not imply that the applicant was wrongly convicted (compare Dvorski v. Croatia [GC], no. 25703/11, § 117, ECHR 2015) but rather, as stressed above, that he was not given an effective opportunity of access to the relevant evidence with a view to determining whether such evidence might have reduced his sentence or put into doubt the scope of his alleged criminal activity. Accordingly, accepting that the applicant might have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and making its assessment on an equitable basis, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage.

The applicant also claimed 70,937.50 Croatian kunas (HRK; approximately EUR 9,400) for the costs and expenses incurred before the Court.

The Government considered the applicant's claim excessive and unfounded.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 covering costs under all heads.

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.