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KURALIC v. CROATIA - 50700/07 [2009] ECHR 1567 (15 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1567.html
Cite as:
[2009] ECHR 1567
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FIRST
SECTION
CASE OF KURALIĆ v. CROATIA
(Application
no. 50700/07)
JUDGMENT
STRASBOURG
15 October 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Kuralić v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 24 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 50700/07) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a national of Bosnia and Herzegovina, Mr
Mustafa Kuralić (“the applicant”), on 3 October
2007.
The
applicant was represented by Mr M. Stanimirović, a lawyer
practising in Tuzla. The Croatian Government (“the Government”)
were represented by their Agent, Mrs Š. StaZnik.
On 8 September 2008 the President of the Court's First
Section decided to communicate to the Government the applicant's
complaints that he had been ill-treated while in police custody, that
there had been no effective investigation into the alleged
ill-treatment and that the criminal proceedings against him had been
unfair. It was also decided to examine the merits of the application
at the same time as its admissibility (Article 29 § 3). On
the same date, the Government of Bosnia-Herzegovina were informed of
their right to intervene in the proceedings in accordance with
Article 36 § 1 of the Convention and Rule 44 § 1 (b). They
chose not to avail themselves of this right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1957 and is at present serving a twelve-year
sentence in Lepoglava State Prison.
On
15 September 2002 the Dubrovnik Police Station received an anonymous
telephone call from a man who reported the disappearance of his
neighbour D.K., the applicant's wife, since 31 August 2002. On
16 September 2002 the police carried out an in situ
inspection of the flat and the adjacent premises where D.K. had lived
and collected samples of bloodstains and other biological particles
found there. DNA testing on the bloodstains carried out on 28 January
2003 showed that these samples belonged to the victim, the applicant
and another male person. Meanwhile, on 28 October 2002 a Dubrovnik
County Court investigating judge issued a warrant for the search of
the applicant's flat in order to identify possible objects connected
with a criminal offence which was not specified. The search was
carried out by the police on 28 October 2002 but no items of interest
were found.
On
24 April 2004 at 6 a.m. the applicant was arrested by the police and
placed in police custody on suspicion of murdering his wife (D.K.) in
Dubrovnik at the end of August 2002 and disposing of her body at the
garbage disposal tip near the town of Dubrovnik. He was first
interviewed by the police. The applicant's statement to the police in
which he confessed to murdering his wife was subsequently excluded
from the case file as inadmissible evidence on the ground that he had
not been legally represented.
At
1.35 p.m. the same day, the applicant was brought by the police
officer who had previously interviewed him before an investigating
judge of the Dubrovnik County Court (istraZni sudac Zupanijskog
suda u Dubrovniku) and was questioned in the presence of a
Dubrovnik County Deputy State Attorney. The written transcript of the
interview shows that the applicant had been warned about his right to
remain silent and to be legally represented. After replying that he
had understood the warnings, he chose to defend himself in person. He
then stated that he was “not experiencing any mental crisis,
that he was aware of everything that he was saying and that the
police officers had treated him correctly” and then denied that
he had murdered his wife but instead stated that he had found her
dead and then disposed of her body out of fear that he would be
accused of her murder. The applicant also stated that he had been
listening to the judge's dictation for the official record and that
his words had been faithfully conveyed, adding that he had no
objections as to the content of the written transcript, which he duly
signed. The applicant was then placed in pre-trial detention where he
remained until his conviction. The parties agree that upon his
arrival he was seen by a doctor and that no injuries were recorded.
On
26 April 2004 an investigation was opened against the applicant in
the Dubrovnik County Court on a suspicion that he had murdered his
wife, D.K. and on the same day a lawyer, M.K., was officially
appointed to assist the applicant. On 28 April 2004 the defence
counsel appealed against the decision to open an investigation,
arguing that there had been no relevant evidence that the applicant
had murdered D.K. On 28 April 2004 the appeal was dismissed by a
three-judge panel of Dubrovnik County Court.
On
30 April 2004 the investigating judge heard evidence from three
witnesses in the presence of the applicant's counsel. On 18 May 2004
the applicant's pre-trial detention was extended by the Dubrovnik
County Court. The applicant's counsel lodged an appeal which was
dismissed by the Supreme Court on 26 May 2006.
Meanwhile,
on 25 May 2004 the same investigating judge again interviewed the
applicant, this time in the presence of his officially appointed
defence counsel. The applicant was warned that he had the right to
remain silent. However, he repeated his previous statement and added
some details as to how he had disposed of his wife's dead body. He
signed the written transcript of the interview.
On
8 June 2004 a confrontation between the applicant and a witness was
organised before the investigating judge, in the presence of the
applicant's officially appointed counsel. The applicant stated that
on the critical occasion he had twice hit his wife. He also stated
that he had asked the witness present to help him dispose of his
wife's dead body. However, he denied that he had killed her.
On
27 July 2004 the applicant informed the Dubrovnik County Court that
he was represented by two defence counsel of his own choosing.
Consequently, in a decision of 27 July 2004 the officially appointed
defence counsel was relieved of his duties.
On
6 October 2004 the applicant sent a letter to the Dubrovnik County
Court investigating judge, withdrawing the previous confessions he
had made before that judge. He alleged that during his interview by
the police on 24 April 2004 he had confessed to having murdered his
wife because he had been threatened and beaten by four police
officers. They had punched him in the stomach, ears and head and
slapped him several times. He named one of the officers. They had, he
alleged, also threatened him with further beatings if he retracted
his confession before the investigating judge. For fear of further
beatings, he had made a statement on two occasions before the
investigating judge in which he had confessed to having disposed of
the dead body of his wife, even though that was not true.
On
11 October 2004 the investigating judge excluded, inter alia,
the transcript of the applicant's interview by the police from the
case file.
On
15 October 2004 the Dubrovnik County State Attorney's Office
(Zupanijsko drZavno odvjetništvo Dubrovnik) filed a
bill of indictment against the applicant in the Dubrovnik County
Court, charging him with the murder of his wife at the end of August
2002, and the applicant was thus committed to stand trial.
During
the trial proceedings the applicant, represented by two lawyers of
his own choosing, decided to remain silent. The Dubrovnik County
Court trial panel heard evidence from witnesses, including O.M., in
the presence of the applicant and his counsel, obtained forensic and
other relevant reports and in its judgment of 16 February 2005 found
the applicant guilty as charged and sentenced him to twelve years'
imprisonment. The findings as to the applicant's guilt relied on the
statements of the applicant given by him before the investigating
judge on two occasions as well as on the other evidence such as a DNA
analysis of the bloodstains found in the applicant's home and hearsay
evidence given by one of the witnesses. The relevant part of the
judgment reads as follows:
“The defendant's confession during the
investigation and the evidence given by witnesses O.M. and M.A.
indicate that one evening at the end of August 2002 the police
arrived at the applicant's flat on account of the fact that music was
being played too loud, while the fact that D.K. had actually died was
twice confirmed by the defendant during the investigation.
Furthermore, the witness O.M. said that the defendant had told him
that he had killed his wife and asked him to help him transport her
dead body to Zaton in order to throw it into the sea.
A careful analysis of the defendant's statements given
on two occasions during the investigation and of all other evidence
presented at the hearing led this court to conclude that the
defendant had acted as described in the operative part of this
judgment and that all the statutory elements of the crime in
question, in both its objective and subjective aspects, had thus been
fulfilled.
During the investigation, the defendant, as mentioned
above, twice confirmed the death of his wife, whose body has never
been found.
...
... [witness] O.M., who has no sensible motive for
laying any blame on the defendant, has, during the entire
proceedings, expressly stated that the defendant, the day after the
critical day at the end of August 2002, had ... told him as follows:
'After you had left that night, I killed her.' And when [O.M.] had
asked 'Whom?', the defendant had answered 'D.' and had asked him to
transport her dead body with his car to Zaton in order for the
defendant to throw it into the sea, which the witness had refused.
...
... [during] an in situ inspection of the
[defendant's] flat traces of her [the defendant's wife] bloodstains
were found ...”
The
applicant and his counsel both appealed against the judgment. In his
personal appeal the applicant complained, inter alia, of the
fact that the judgment relied on the statements given by him before
the investigating judge even though he had subsequently retracted
them and had informed the investigating judge that he had given these
statements under duress. His lawyers had moreover appealed on the
same basis. In a judgment of 8 February 2006 the Supreme Court
(Vrhovni sud Republike Hrvatske) upheld the applicant's
conviction. The relevant part of the judgment reads as follows:
“.. the fact that D.K. had died was twice
confirmed by the defendant in the statements given by him during the
investigation. He described in detail how he had disposed of the dead
body of his wife D, and the first-instance court correctly accepted
this part of the statement while at the same time dismissing the part
of his statement in which he denied murdering his wife. In this
connection the defendant's allegations that his statements during the
investigation had been given as a result of the threats and beatings
by the police and that he had told the investigating judge what the
police had instructed him to say are unfounded. No basis for such
allegations can be found in the evidence or the case file. On the
contrary, when first questioned by the investigating judge the
defendant expressly stated that he was not in a state of mental
crisis, that he was aware of what he was saying and that the police
officers of the Dubrovnik Police Department had treated him
correctly.”
The
subsequent constitutional complaint lodged by the applicant was
dismissed by the Constitutional Court on 9 October 2007.
II. RELEVANT DOMESTIC LAW
The
relevant part of the Code of Criminal Procedure (Official Gazette
nos. 62/2003 – Zakon o kaznenom postupku) provides as
follows:
Article 2
“...
(3) Where not otherwise provided by law, the State
Attorney shall bring a criminal prosecution where there is a founded
suspicion that an identified individual has committed a criminal
offence liable to official prosecution and where there are no
statutory obstacles for prosecution of that person.”
Article 171
“(1) All State bodies and all legal entities are
obliged to report criminal offences liable to official prosecution,
whether they have been informed thereof or have learned about such
offences on their own.
...”
Article 173
“(1) A criminal complaint shall be lodged with a
competent State Attorney in writing or orally.
...
(3) Where a criminal complaint has been lodged with a
court, a police force or a State Attorney lacking competence, they
shall receive the complaint and immediately forward it to the
competent State Attorney.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that he had been ill-treated while in police
custody and that no investigation had been conducted in respect of
these allegations. He relied on Article 3 of the Convention, which
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested that argument.
1. The parties' submissions
The
Government objected that the complaints under Article 3 of the
Convention had been submitted out of the six-month time-limit. They
argued that the event the applicant had complained of had allegedly
occurred on 23 and 24 April 2004, while the application had been
lodged with the Court on 3 October 2007.
The
Government further requested the Court to declare the complaints
under Article 3 of the Convention inadmissible for failure to exhaust
domestic remedies. They submitted that the applicant could have
lodged a complaint against the police officers allegedly involved to
their superiors within the Ministry of Interior in order for them to
conduct an internal investigation. Furthermore, he could have lodged
a formal criminal complaint against the same officers for the
criminal offences of forcibly obtaining statements and ill-treatment
in performing an official duty. However, he failed to use any of
these remedies.
In
the alternative, the Government denied that any ill-treatment of the
applicant had taken place. They argued that when interviewed by the
investigating judge on 24 April 2004 the applicant had expressly
stated that the conduct of the police towards him had been correct.
The report on the applicant's admission to detention had stated that
he had no injuries and was in good health. The Government argued that
the applicant's allegations of ill-treatment had been uncorroborated
by any evidence and lacked credibility.
The
applicant argued that in his letter of 6 October 2004 he had duly
informed the investigating judge assigned to his case of the police
brutality against him and had thus properly made the relevant
domestic authorities aware of the alleged ill-treatment. As to the
running of the six-month period, the applicant argued that it had not
started to run from 24 April 2004 when the ill-treatment took place,
but that it was connected with the State's obligation under Article 3
of the Convention to carry out an effective and thorough
investigation into the allegations of ill-treatment by the police.
Since the relevant State authorities had so far not complied with
that obligation, the six-month period had not yet started to run.
The
applicant further argued that on 24 April 2004 he had been beaten by
four police officers and forced to confess to the murder of his wife.
They had also threatened him with further beatings if he retracted
his confession before the investigating judge. He had not complained
to the investigating judge about the police brutality because he had
still been scared of their threats. For the same reason, when he had
been seen by a prison doctor on 24 April 2004 - a routine practice on
admission to detention - he had stated that he had no injuries and
had been in good health. The doctor had not examined him. Only after
a considerable amount of time elapsed had he felt safe to bring his
complaints of ill-treatment to the attention of the investigating
judge assigned to his case, in a letter of 6 October 2004.
However, although he described the ill-treatment by the police in
detail and even named one of the officers involved, his allegations
had been completely ignored.
2. The Court's assessment
The
Court does not have to address all the admissibility issues put
forward by the Government because this part of the application is in
any event manifestly ill-founded for the following reasons.
The
Court reiterates that where an individual is taken into police
custody in good health but is found to be injured at the time of his
release, it is incumbent on the State to provide a plausible
explanation of how those injuries were caused, failing which a clear
issue arises under Article 3 (see Selmouni v. France [GC], no.
25803/94, § 87, ECHR 1999 V, and Satık and Others
v. Turkey, no. 31866/96, § 54, 10 October 2000). The
allegations of ill-treatment must be supported by appropriate
evidence. In assessing evidence, the Court has generally applied the
standard of proof beyond reasonable doubt. However, such proof may
follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
(see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR
2000 VII, and Dedovskiy and Others v. Russia, no.
7178/03, § 74, 15 May 2008).
Where an individual makes a credible assertion that he
has suffered treatment infringing Article 3 at the hands of the
police or other similar agents of the State, that provision, read in
conjunction with the State's general duty under Article 1 of the
Convention to “secure to everyone within their jurisdiction the
rights and freedoms defined in ... [the] Convention”, requires
by implication that there should be an effective official
investigation. This investigation should be capable of leading to the
identification and punishment of those responsible. Otherwise, the
general legal prohibition of torture and inhuman and degrading
treatment and punishment would, despite its fundamental importance,
be ineffective in practice and it would be possible in some cases for
agents of the State to abuse the rights of those within their control
with virtual impunity (see Assenov and Others, cited
above, § 102; Labita v. Italy [GC], no. 26772/95, §
131, ECHR 2000-IV; and Muradova v. Azerbaijan,
no. 22684/05, § 100, 2 April 2009).
It
is not disputed between the parties that on 23 April 2004 the
applicant was interviewed by the police about the death of his wife,
D.K. While the Government denied that any form of ill-treatment
against the applicant took place during the interview, the applicant
maintained that the police officers had beaten him and threatened to
inflict further beatings had he not confessed. The Court notes that
the applicant was in pre-trial detention from 24 April 2004 when he
was arrested, until the end of his trial in February 2006, after
which he was transferred to a regular penal institution. On 6 October
2004 the applicant wrote a letter to the investigating judge assigned
to the case. The main purpose of his letter was to retract his
confessions made before the police and before that judge. The
applicant explained that he had made a confession to the police on 24
April 2004 because he had been beaten up by four police officers who
had also threatened him with further beatings if he retracted his
confession before the investigating judge.
The
Court first notes that by informing the investigating judge assigned
to his case the applicant complied with his duty to inform the
relevant national authorities of ill-treatment against him. In this
connection, the Court is also mindful of the relevant provisions of
the Code of Criminal Procedure, which require a court receiving a
criminal complaint involving allegations of a criminal offence liable
to public prosecution to forward it immediately to the competent
State Attorney. In the Court's view, there is no doubt that the
allegations of ill-treatment by the police amount to such a criminal
offence. The applicant's complaint was submitted to a judge of the
Dubrovnik County Court, which was in compliance with Article 173(3)
of the Code of Criminal Procedure. It follows that the applicant duly
informed the relevant national authorities of the substance of his
complaints under Article 3 of the Convention. A question now arises
as to whether in the specific circumstances of the case at issue the
applicant's complaint contained a credible assertion that he had
suffered treatment infringing Article 3 at the hands of the police
and consequently whether an obligation arose for the relevant State
authorities to investigate the applicant's allegations of
ill-treatment.
In
this connection the Court observes that on the same day as the
alleged ill-treatment by the police, 24 April 2004, the applicant was
brought before an investigating judge of the Dubrovnik County Court
and that he expressly stated that he was aware of everything that he
was saying and that the police officers had treated him correctly
(see paragraph 7 above). This statement was recorded in the
transcript of the hearing before the investigating judge and the
applicant signed it. The Court, however, accepts that the applicant
might have done so because of his fear of further beatings since, as
he argued, he had been taken to the investigating judge by the same
police officers who had allegedly beaten him. However, on 25 May
2004, about a month after the alleged ill-treatment, the applicant
was again interviewed by the investigating judge, this time in the
presence of his officially appointed defence counsel and he made no
complaints about police brutality. Moreover, he repeated his previous
statement given on 24 April 2004. The same is true of a further
hearing before the investigating judge on 8 June 2004.
The
Court further notes that from 27 July 2004 onwards the applicant was
represented by two defence counsel of his own choosing. However, it
was not until 6 October 2004 that he complained to the Dubrovnik
County Court investigating judge about the alleged ill-treatment. The
Court cannot see any good reason for such a delay in reporting the
alleged ill-treatment. Furthermore, the main purpose of the
applicant's letter to the investigating judge was not to report the
ill-treatment by the police, but to retract his previous confessions.
During
the trial before the Dubrovnik County Court the applicant opted to
remain silent as to the criminal charges against him. That, however,
could not have prevented him from putting forward any complaints he
might have had about ill-treatment by the police, which he did not
do.
Another
relevant fact is that the applicant was seen on 24 April 2004 by a
prison doctor and that no injuries were recorded.
In
view of the above, the Court notes that the applicant has not adduced
any evidence supporting his version of the incident which would give
rise to a prima facie case of ill-treatment at the hands of
the police. Thus, the Court finds that there is insufficient evidence
to support the applicant's allegation that on 23 April 2004 he was
beaten by police officers. Likewise, the Court finds that, in view of
the foregoing, the applicant's assertion of ill-treatment in his
letter of 6 October 2004 addressed to the Dubrovnik County Court
investigating judge lacked credibility and therefore did not entail a
procedural obligation under Article 3 of the Convention to
investigate the applicant's allegations.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF
THE CONVENTION
The
applicant complained that the criminal proceedings against him had
been unfair because the judgment finding him guilty had, inter
alia, relied on the statements given by him at the investigation
stage, although he had chosen to remain silent at the trial and had
informed the relevant authorities that he had given these statements
under duress. He relied on Article 6 §§ 1 and 3 of the
Convention, the relevant parts of which read.
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ...”
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself in person ...”
The
Government contested that argument.
A. Admissibility
The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
The
applicant argued that he had given his statements to the
investigating judge owing to his fear of further police beating.
Although before the trial court he had decided to remain silent, the
judgment finding him guilty of murdering his wife relied on his
statements given before the investigating judge.
The
Government argued that in his evidence given before the investigating
judge, when he had been legally represented and despite the warning
about his right to remain silent, the applicant had twice described
how he had disposed of the dead body of his wife. No force or other
illegal practice had been used against the applicant on those
occasions. Furthermore, the judgment finding the applicant guilty of
murdering his wife relied on other evidence, such as that given by
witnesses and expert reports and not only on the applicant's
statements given at the pre-trial stage.
2. The Court's assessment
Bearing
in mind that the requirements of paragraph 3 (b) and (c) of Article 6
of the Convention amount to specific elements of the right to a fair
trial guaranteed under paragraph 1, the Court will examine all the
complaints under both provisions taken together (see, in particular,
Hadjianastassiou v. Greece, 16 December 1992, § 31,
and G.B. v. France, no. 44069/98, § 57, ECHR
2001 X).
The
Court reiterates that, even if the primary purpose of Article 6,
as far as criminal proceedings are concerned, is to ensure a fair
trial by a “tribunal” competent to determine “any
criminal charge”, it does not follow that the Article has no
application to pre-trial proceedings. Thus, Article 6 -especially
paragraph 3 – may be relevant before a case is sent for trial
if and in so far as the fairness of the trial is likely to be
seriously prejudiced by an initial failure to comply with its
provisions (see Imbrioscia v. Switzerland, 24 November
1993, § 36, Series A no. 275, and Salduz v. Turkey
[GC], no. 36391/02, § 50, 27 November 2008). As the Court
has already held in previous judgments, the right set out in
paragraph 3 (c) of Article 6 of the Convention is one element,
amongst others, of the concept of a fair trial in criminal
proceedings contained in paragraph 1 (see Imbrioscia, cited
above, § 37, and Brennan v. the United Kingdom,
no. 39846/98, § 45, ECHR 2001 X 45).
As
to the present case, the Court notes that the applicant's statement
given during the police interviews was excluded from the case-file
and that it carried no weight in the criminal proceedings against the
applicant. Therefore, the Court has no reason to examine compliance
with the Article 6 requirements as to the police interview. On
the other hand, the statements the applicant gave, on three
occasions, before the investigating judge were relied on by the trial
court in establishing the facts of the case and finding the applicant
guilty of murdering his wife. Hence, the Court must examine whether
the manner in which these statements were given complied with the
guarantees of fair trial under Articles 6 §§ 1 and 3 of the
Convention. In this connection, the Court stresses that the role of
establishing the facts relevant to the assessment of the applicant's
guilt is in the sole province of the national courts. The Court's
task is to ascertain whether the proceedings considered as a whole,
including the way in which evidence was taken, were fair (see Kovač
v. Croatia, no. 503/05, § 25, 12 July 2007).
The
Court notes that the applicant gave his evidence before the
investigating judge on three occasions, namely on 24 April, 25 May
and 8 June 2004. Each time he was warned about his right to
remain silent and to be legally represented. Before the first
interview the applicant expressly stated that he understood the
warnings and that he chose to defend himself in person, without being
legally represented. Although in his letter of 6 October 2004
the applicant stated that he wanted to retract his confession given
on that occasion, the Court notes that the applicant did not confess
to having murdered his wife, but only to having disposed of her dead
body. During the second interview on 25 May 2004 when the applicant
was legally represented, he repeated his statement from 24 April
2004. During the interview of 8 June 2004, also in the presence of
the applicant's defence counsel, the applicant again admitted to
having disposed of D.K.'s dead body and gave some further details
about it.
The
Court notes that the applicant asserted that owing to his fear of the
threats allegedly made by the police officers he not only repeated
that he had found his wife dead and had disposed of her body, but
also refrained from complaining of police brutality before the
investigating judge. The Court accepts that these arguments might
carry some weight in relation to the applicant's interview on 24
April 2004, shortly after he had allegedly been ill-treated by the
police and in circumstances where the police officers had actually
brought him before the investigating judge and where the applicant
knew that they would also return him to custody, and in view of the
fact that at that stage the applicant was not legally represented.
However, at the second and third interviews, on 25 May and 8 June
2004, the applicant had legal representation. The Court reiterates
that although not absolute, the right of everyone charged with a
criminal offence to be effectively defended by a lawyer, assigned
officially if need be, is one of the fundamental features of a fair
trial (see Poitrimol v. France, 23 November 1993, §
34, Series A no. 277-A, and Demebukov v. Bulgaria,
no. 68020/01, § 50, 28 February 2008). Nevertheless,
Article 6 § 3 (c) does not specify the manner in which this
right should be exercised. It thus leaves to the Contracting States
the choice of the means of ensuring that it is secured in their
judicial systems, the Court's task being only to ascertain whether
the method they have chosen is consistent with the requirements of a
fair trial. In this connection, it must be remembered that the
Convention is designed to “guarantee not rights that are
theoretical or illusory but rights that are practical and effective”
and that assigning counsel does not in itself ensure the
effectiveness of the assistance such counsel may afford an accused
(see Imbrioscia, cited above, § 38, and Salduz,
cited above, § 51).
While
it is true that the lawyer representing the applicant at the initial
stage of the proceedings was not the one of his own choosing, in
which case a higher degree of trust and confidence is usually to be
expected, but was officially appointed, the Court notes that the
applicant did not, at any stage of the proceedings before the
national courts or before the Court put forward any complaints as
regards his legal representation by the officially appointed defence
lawyer, nor has he ever complained that he had in any way been
hindered in consulting the officially appointed counsel. Also, the
Court notes that the officially appointed defence counsel, acting on
behalf of the applicant, lodged an appeal against a decision ordering
investigation and also against a decision on extending the
applicant's pre-trial detention. He also attended hearings held on 24
and 30 April 2004 before the Dubrovnik County Court investigating
judge, at the latter of which three witnesses gave their evidence,
and a hearing on 8 June 2004, thus showing that the officially
appointed counsel actively defended the applicant's interests at the
pre-trial stage of the proceedings and that his conduct gave no
reason for the courts to doubt the quality of his representation of
the applicant in any respect.
In
these circumstances the Court must assume that at least the
statements given by the applicant before the investigating judge on
25 May and 8 June 2004 were expressions of his true will. As to the
relevance to his conviction of the applicant's statement given before
the investigating judge, the Court notes that it is true that the
trial court did rely, in establishing the facts of the case, on the
applicant's statement that he had disposed of the dead body of his
wife. However, the findings in that respect were corroborated by the
evidence given by O.M. who stated that the applicant had told him
that he had killed D.K. and asked him to help him dispose of her dead
body as well as by the expert's report establishing that the
bloodstains found in the applicant's flat belonged to D.K. These
items of evidence were duly produced before the trial court when the
applicant was represented by two counsel of his own choosing and
where he had had the opportunity of challenging all the evidence
against him as well as the prosecution's allegations.
In
these circumstances, the Court considers that, in the instant case,
the fairness of the applicant's trial was not prejudiced on account
of the use of the applicant's statements given at the pre-trial stage
in the criminal proceedings against him.
Accordingly,
there has been no violation of Article 6 §§ 1 and 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
The
applicant further complained that he was discriminated against on the
basis of his Muslim origin. He relied on Article 14 of the
Convention.
In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. It follows that it is inadmissible
under Article 35 § 3, being manifestly ill-founded,
and must be rejected pursuant to Article 35 § 4
of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints concerning Article 6 of
the Convention admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 6 §§ 1 and 3 of the Convention;
Done in English, and notified in writing on 15 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
