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HADI v. CROATIA - 42998/08 [2010] ECHR 1019 (1 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1019.html
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[2010] ECHR 1019
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FIRST
SECTION
CASE OF
HAĐI v. CROATIA
(Application
no. 42998/08)
JUDGMENT
STRASBOURG
1 July 2010
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 Hađi v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 10 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 42998/08) 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 Croatian national, Mr Đerđet Hađi
(“the applicant”), on 26 July 2008.
The
applicant was represented by Mr D. Omrčen, a lawyer practising
in Osijek. The Croatian Government (“the Government”)
were represented by their Agent, Ms Š. StaZnik.
On
20 May 2009 the President of the First Section decided to communicate
the complaints concerning the applicant’s right to liberty of
person, the complaint about the proceedings concerning the lawfulness
of his detention and the complaint of a lack of an effective remedy
to the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1985 and lives in Osijek.
On
19 September 2007 the applicant was indicted in the Osijek Municipal
Court (Općinski sud u Osijeku) on charges of aggravated
larceny. On 6 December 2007 the Osijek Municipal Court appointed D.
Omrčen as defence counsel for the applicant.
On
12 December 2007 the Osijek Municipal Court ordered the applicant’s
pre-trial detention in connection with the criminal proceedings
instituted against him. The relevant part of the decision reads:
“... the defendant Ðerđet Hađi has
been charged with repeated criminal offences of aggravated larceny
under Article 217 § 1(1) of the C[riminal] C[ode] which he
committed on fifteen occasions between 17 December 2006 and 27
August 2007.
In view of the following facts: that the defendant
Ðerđet Hađi has been charged with repeated criminal
offences of aggravated larceny over a period of eight months; that
according to the criminal records he has already been convicted of
that same offence; that before this court several sets of criminal
proceedings are pending [against him on charges] of the criminal
offence under Article 217 of the C[riminal] C[ode]; that he has
neither income nor property – this panel finds that these
circumstances justify the suspicion that he could commit the same or
similar criminal offence were he to remain at large, which makes
ordering his detention under Article 102 § 1(3) of the Code of
Criminal Procedure justified.”
The
applicant was arrested and remanded in custody on 14 December 2007.
He lodged an appeal against the decision of 12 December 2007. On 27
December 2007 the Osijek County Court (Zupanijski sud u Osijeku)
allowed the applicant’s appeal and quashed the decision of 12
December 2007, but did not lift the applicant’s detention.
The
operative part of this decision reads:
“the appeal by the defendant Ðerđet Hađi
is allowed, the first-instance decision (but not the applicant’s
detention) is quashed and the case is to be remitted to that court
for fresh deliberation.”
The
relevant part of the reasoning reads:
“The appeal is well-founded.
The defendant’s allegations that the impugned
decision was adopted in breach of the provisions of criminal
procedure under Article 367 § 1 in conjunction with Article 105
§ 1 of the C[ode of] C[riminal] P[rocedure] are well-founded.
The reasoning of the impugned decision states that the meeting, held
after the indictment had been lodged, at which the panel deliberated
on [the defendant’s] detention, was held in the absence of
D.O., the defence lawyer officially appointed for the defendant
Ðerđet Hađi, in accordance with Article 105 § 2 of
the CCP. However, the defendant questioned the finding of the
first-instance court that defence counsel had been properly summoned
to the panel meeting in question, pursuant to Article 105 § 1 of
the CCP. The defendant alleged in his appeal that his officially
appointed defence counsel had not been served with the decision of
his appointment prior to the panel meeting of 12 December 2007
where [the panel] had been deliberating on his detention. Defence
counsel had not been summoned to the panel meeting in question. The
defendant maintained that the summons for the panel meeting had been
sent to his defence counsel by fax on 12 December 2007 at 10.55 a.m.
He enclosed a copy of the minutes of a different hearing held before
the Slavonski Brod Municipal Court on 12 December 2007 in
proceedings no. P-1831/00 showing that [the lawyer appointed for him]
had been present at that hearing between 9.30 a.m. and 10.30. a.m.
and that, therefore, since the panel meeting was held at 1 p.m., his
defence counsel had not been properly summoned to that meeting.
The above circumstances show that the defence lawyer was
not properly summoned to the panel meeting at which the defendant’s
detention was deliberated upon, despite the fact that, pursuant to
Article 105 § 1 of the CCP, he should have received the summons
in time in order to be able to appear. Therefore, the right of the
defendant to be defended by officially appointed counsel, who could
only be a practising lawyer, at a panel meeting at which the decision
on his detention was to be taken, and [whose absence] might influence
that decision, was infringed.
It is also important to point out that the facts
concerning the question whether the appointed lawyer received the
decision of his appointment and whether he was properly summoned to
the panel meeting at which the question of the defendant’s
detention was to be deliberated upon could not be taken to have been
correctly and sufficiently established, in view of the reasons stated
above.
The first-instance court must establish whether the
lawyer D.O. from Osijek received, and if so, when, the decision on
his appointment as defence counsel and it must then properly summon
him to a fresh panel meeting where the possibility of [implementing]
a custodial measure is to be deliberated.
In view of the above considerations, the appeal of the
defendant Ðerđet Hađi is to be allowed, the impugned
decision quashed (but not the detention) and the case remitted to the
first-instance court for fresh deliberation (Article 398 § 3 of
the CCP).”
On
2 January 2008 the Osijek Municipal Court ordered the applicant’s
detention under Article 102 § 1(3) of the Code of Criminal
Procedure. On 11 January 2008 an appeal lodged by the applicant was
dismissed by the Osijek County Court.
On
15 January 2008 the applicant lodged a constitutional complaint
against the decision of 27 December 2007, arguing that, although the
decision on his detention had been quashed, his detention had not
been lifted.
On
30 January 2008 the Osijek Municipal Court dismissed the charges
against the applicant because the State Attorney had dropped the
charges on the ground that there was no evidence that the applicant
had committed the criminal offence in question. On the same date the
same court lifted the applicant’s detention and the applicant
was immediately released.
On
18 February 2008 the Constitutional Court (Ustavni sud Republike
Hrvatske) declared the applicant’s constitutional complaint
of 15 January 2008 inadmissible on the grounds that the impugned
decision was no longer operative since, in the meantime, on 2 January
2008, the Osijek Municipal Court had issued a fresh decision ordering
the applicant’s detention. The relevant part of the decision
reads:
“5. ... the Constitutional Court has established
that in the fresh proceedings the Osijek Municipal Court adopted a
new decision no. Kv-544/07-7 (K-688/07-22) of 2 January 2008
ordering the applicant’s detention.
6. Since the new decision ordered the applicant’s
detention and practically set aside the impugned decision, the
conditions for considering the merits of the complaint had ceased to
exist by the time the Constitutional Court was deciding on the
applicant’s constitutional complaint,.”
On
an unspecified date the applicant brought a civil action against the
State before the Osijek Municipal Court, seeking 23,500 Croatian kuna
(HRK) on account of damages he had suffered owing to his “unfounded”
detention. On 17 November 2008 the Municipal Court allowed the claim
and granted the applicant HRK 16,400. On an unspecified date the
State Attorney’s Office lodged an appeal and the appeal
proceedings are currently pending.
II. RELEVANT DOMESTIC LAW
Section
62(1) of the Constitutional Act on the Constitutional Court (Ustavni
zakon o Ustavnom sudu,
Official Gazette no. 29/2002) reads:
“1. Everyone may lodge a constitutional complaint
with the Constitutional Court if he or she deems that a decision
(pojedinačni akt) of a State body, a body of local and
regional self-government, or a legal person with public authority,
which has decided on his or her rights and obligations, or on a
suspicion or accusation of a criminal act, has violated his or her
human rights or fundamental freedoms, or his or her right to local
and regional self-government guaranteed by the Constitution
(hereinafter: constitutional right) ...”
The
relevant provisions of the Code of Criminal Procedure (Zakon o
kaznenom postupku – Official Gazette nos. 110/1997,
27/1998, 58/1999, 112/1999, 58/2002 and 62/2003, 178/2004 and
115/2006) provide as follows:
Article 18
“...
(4) A three-judge panel of a Municipal Court adopts
decisions out of a hearing.”
8. General Provisions on Detention
Article 101
(1) Detention may be imposed only if the same purpose
cannot be achieved by another [preventive] measure.
(2) Detention shall be lifted and the detainee released
as soon as the grounds for detention cease to exist.
(3) When deciding on detention, in particular its
duration, the court shall take into consideration the proportionality
between the gravity of the offence, the sentence which ... may be
expected to be imposed, and the need to order and determine the
duration of detention.
(4) The judicial authorities conducting the criminal
proceedings shall proceed with particular urgency when the defendant
is in detention and shall review of their own motion whether the
grounds and legal conditions for detention have ceased to exist, in
which case detention shall immediately be lifted.
9. Grounds for Ordering Detention
Article 102
“(1) Where reasonable suspicion exists that a
person has committed a criminal offence, he or she may be placed in
detention if:
...
3. special circumstances justify the suspicion that the
person concerned might reoffend ...”
10. Decision on detention
Article 103
“(1) Detention may be ordered only in a written
decision of the competent judicial authority.
...”
11. Judicial authority competent for ordering and
lifting detention
Article 104
“...
(3) After the indictment has been lodged ... the
detention is ordered, extended and lifted by a judicial panel under
Article 18(4) of this Code. At the hearing ... the detention is
ordered, extended and lifted by a judicial panel or a single judge
conducting the hearing.
...”
Article 105
“(1) The State Attorney and defence counsel and,
if needed, also the defendant, shall be invited to the panel meeting
... at which the court decides on ordering, lifting or extending the
detention ...
...”
Article 107
“...
(2) After the indictment has been lodged ... a
[judicial] panel ... shall examine every two months whether the
statutory conditions for detention continue to exist ...”
Article
367 paragraph 1 enlists grave breaches of the provisions of criminal
procedure.
Article 398
“...
(3) When deciding on an appeal [against a decision] a
court may declare it inadmissible as being lodged out of time or as
impermissible; dismiss it as unfounded; or accept it and reverse or
quash it and remit the case for fresh examination.
...”
Article 480
“Compensation may be awarded to a person who
1. was detained but the criminal proceedings against him
or her were never instituted or were terminated by a final decision;
or [a person] who was acquitted by a final judgment or where the
charges were dismissed by a final judgment.
...”
The
relevant provisions of the Civil Obligations Act (Zakon o obveznim
odnosima, Official Gazette nos. 35/2005 and 42/2008) read as
follows:
Section 19
“(1) Every legal entity and every natural person
has the right to respect for their personal integrity under the
conditions prescribed by this Act.
(2) The right to respect for one’s personal
integrity within the meaning of this Act includes the right to life,
physical and mental health, good reputation and honour, the right to
be respected, the right to respect for one’s name and privacy
of personal and family life, freedom et alia.
...”
Section 1046
“Damage is ... infringement of the right to
respect for one’s personal dignity (non-pecuniary damage).”
The
relevant part of section 186(a) of the Civil Procedure Act (Zakon
o parničnom postupku, Official Gazette nos. 53/91, 91/92,
58/93, 112/99, 88/01 and 117/03) reads as follows:
“A person intending to bring a civil suit against
the Republic of Croatia shall first submit a request for a settlement
to the competent State Attorney’s Office.
...
Where the request has been refused or no decision has
been taken within three months of its submission, the person
concerned may file an action with the competent court.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained that he had been detained from 27 December
2007 to 2 January 2008 without any decision ordering his detention
and that his detention during that period had been unlawful. He
relied on Article 5 § 1 of the Convention, which reads as
follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non-compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
A. Admissibility
The
Government claimed that the applicant had failed to exhaust domestic
remedies. Following the Municipal Court’s decision dismissing
the charges against him, the applicant had been able to seek damages
under Article 480 of the Code of Criminal Procedure, which he had
done and the first-instance judgment partly awarding his claim had
been adopted. The proceedings were currently pending before the
appellate court.
The
applicant submitted that he had exhausted all available remedies.
The
Court notes that it is true that the applicant has the right to seek
compensation under Article 480 of the Code of Criminal Procedure in
connection to the fact that he was detained and that the charges
against him were finally dismissed. However, this ground for
compensation does not correspond to the applicant’s complaint
under Article 5 § 1. The Court notes that the applicant’s
complaint before it concerns the fact that he was detained from 27
December 2007 to 2 January 2008 despite the County Court having
quashed the decision of the Osijek Municipal Court of 12 December
2007 ordering his detention. In the applicant’s view, he had
been detained without a valid detention order between 27 December
2007 and 2 January 2008. This complaint is substantially different
from the ground of the applicant’s compensation claim which is
currently pending before the domestic courts and cannot be remedied
in these proceedings. The Court concludes, therefore, that the
Government’s objection must be rejected.
The
Court further considers that the applicant’s complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ arguments
The
applicant argued that he had been detained from 27 December 2007 to 2
January 2008 without any decision on his detention. This had been
because the initial decision ordering his detention of 12 December
2007 had been quashed by the appellate court on 27 December 2007 and
had therefore no longer been in effect. However, the appellate court
which had quashed the decision ordering his detention, and which had
not actually ordered his detention itself, had nevertheless failed to
lift his detention.
The
Government argued that the applicant’s detention had been
ordered by a decision of the Osijek Municipal Court of 12 December
2007 on the grounds that there had been a danger that he might
abscond. This decision had been quashed on appeal on strictly formal
grounds, namely that the applicant’s defence counsel had not
been properly summoned to the panel meeting on the applicant’s
detention. This procedural defect did not amount to gross and obvious
error.
2. The Court’s assessment
(a) General principles
The
principles relevant for the examination of the applicant’s
complaint under Article 5 § 1 of the Convention were set out by
the Court in the Mooren judgment (see Mooren v. Germany
[GC], no. 11364/03, ECHR 2009 ...).
The relevant passages read as follows:
“(i) Recapitulation of the relevant
principles
72. Where the “lawfulness” of
detention is in issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention
refers essentially to national law and lays down the obligation to
conform to the substantive and procedural rules thereof. Compliance
with national law is not, however, sufficient: Article 5 § 1
requires in addition that any deprivation of liberty should be in
keeping with the purpose of protecting the individual from
arbitrariness (see, inter alia, Erkalo v. the Netherlands,
2 September 1998, § 52, Reports of Judgments and Decisions
1998 VI; Steel and Others v. the United Kingdom, 23
September 1998, § 54, Reports 1998 VII; and
Saadi v. the United Kingdom [GC], no. 13229/03, § 67,
ECHR 2008 ...). The Court must further ascertain in this
connection whether domestic law itself is in conformity with the
Convention, including the general principles expressed or implied
therein, notably the principle of legal certainty (compare Baranowski
v. Poland, no. 28358/95, §§ 51-52, ECHR 2000 III;
Ječius v. Lithuania, no. 34578/97, § 56, ECHR
2000 IX; and Nasrulloyev v. Russia, no. 656/06, §
71, 11 October 2007).
(α) Principles governing the
examination of compliance with domestic law
73. Although it is in
the first place for the national authorities, notably the courts, to
interpret and apply domestic law, under Article 5 § 1 failure to
comply with domestic law entails a breach of the Convention and the
Court can and should therefore review whether this law has been
complied with (see, inter alia,
Benham v. the United Kingdom, 10 June 1996, § 41,
Reports 1996 III; Baranowski, cited above, §
50; Ječius, cited above, § 68; and Ladent v.
Poland, no. 11036/03, § 47, ECHR 2008 ... (extracts)).
74. However, the Court has clarified,
particularly in its more recent case-law, that not every fault
discovered in a detention order renders the underlying detention as
such unlawful for the purposes of Article 5 § 1. A period of
detention is, in principle, “lawful” if it is based on a
court order. A subsequent finding of a superior domestic court that a
lower court erred under domestic law in making the order will not
necessarily retrospectively affect the validity of the intervening
period of detention (see, inter alia, Benham, cited
above, § 42; Douiyeb v. the Netherlands [GC],
no. 31464/96, § 45, 4 August 1999; Minjat v.
Switzerland, no. 38223/97, § 41, 28 October 2003; and
Khudoyorov v. Russia, no. 6847/02, § 128, ECHR 2005 X
(extracts)).
75. In its more recent case-law, the Court,
referring to a comparable distinction made under English law (compare
Benham, cited above, §§ 43-46; and Lloyd and
Others v. the United Kingdom, nos. 29798/96 and others, §§
102, 105 et seq., 1 March 2005), further specified the circumstances
under which the detention remained lawful in the said underlying
period for the purposes of Article 5 § 1: For the assessment of
compliance with Article 5 § 1 of the Convention a basic
distinction has to be made between ex facie invalid detention orders
– for example, given by a court in excess of jurisdiction (see
Marturana v. Italy, no. 63154/00, § 78, 4 March 2008) or
where the interested party did not have proper notice of the hearing
(see Khudoyorov, cited above, § 129; and Liu v.
Russia, no. 42086/05, § 79, 6 December 2007) – and
detention orders which are prima facie valid and effective unless and
until they have been overturned by a higher court (ibid.). A
detention order must be considered as ex facie invalid if the flaw in
the order amounted to a “gross and obvious irregularity”
in the exceptional sense indicated by the Court’s case-law
(compare Liu, cited above, § 81; Garabayev v.
Russia, no. 38411/02, § 89, 7 June 2007, ECHR 2007 ...
(extracts); and Marturana, cited above, § 79).
Accordingly, unless they constitute a gross and obvious irregularity,
defects in a detention order may be remedied by the domestic appeal
courts in the course of judicial review proceedings.
(β) The required quality of domestic law
76. The Court must moreover ascertain whether
domestic law itself is in conformity with the Convention, including
the general principles expressed or implied therein. On this last
point, the Court stresses that, where deprivation of liberty is
concerned, it is particularly important that the general principle of
legal certainty be satisfied (see Baranowski, cited above, §§
51-52; Ječius, cited above, § 56; and Khudoyorov,
cited above, § 125). In laying down that any deprivation of
liberty must be “lawful” and be effected “in
accordance with a procedure prescribed by law”, Article 5 §
1 does not merely refer back to domestic law; like the expressions
“in accordance with the law” and “prescribed by
law” in the second paragraphs of Articles 8 to 11, it also
relates to the “quality of the law”, requiring it to be
compatible with the rule of law, a concept inherent in all the
Articles of the Convention. “Quality of the law” in this
sense implies that where a national law authorises deprivation of
liberty it must be sufficiently accessible, precise and foreseeable
in its application, in order to avoid all risk of arbitrariness (see
Amuur v. France, 25 June 1996, § 50, Reports 1996 III;
and Nasrulloyev, cited above, § 71).
(γ) Principles governing the notion of
arbitrary detention
77. No detention which is arbitrary can be
compatible with Article 5 § 1, the notion of “arbitrariness”
in this context extending beyond the lack of conformity with national
law. As a consequence, a deprivation of liberty which is lawful under
domestic law can still be arbitrary and thus contrary to the
Convention. While the Court has not previously formulated a global
definition as to what types of conduct on the part of the authorities
might constitute “arbitrariness” for the purposes of
Article 5 § 1, key principles have been developed on a
case-by-case basis. It is moreover clear from the case-law that the
notion of arbitrariness in the context of Article 5 varies to a
certain extent depending on the type of detention involved (see
Saadi, cited above, §§ 67-68).
78. One general principle established in the
case-law is that detention will be “arbitrary” where,
despite complying with the letter of national law, there has been an
element of bad faith or deception on the part of the authorities
(compare Bozano v. France, 18 December 1986, § 59,
Series A no. 111; and Saadi, cited above, § 69) or where
the domestic authorities neglected to attempt to apply the relevant
legislation correctly (see Benham, cited above, § 47;
Liu, cited above, § 82; and Marturana, cited
above, § 80).
79. Furthermore, in the context of
sub-paragraph (c) of Article 5 § 1, the reasoning of the
decision ordering detention is a relevant factor in determining
whether a person’s detention must be considered as arbitrary.
The Court has considered the absence of any grounds given by the
judicial authorities in their decisions authorising detention for a
prolonged period of time to be incompatible with the principle of the
protection from arbitrariness enshrined in Article 5 § 1 (see
Stašaitis v. Lithuania, no. 47679/99, § 67, 21
March 2002; Nakhmanovich v. Russia, no. 55669/00, § 70,
2 March 2006; and Belevitskiy v. Russia, no. 72967/01, §
91, 1 March 2007). Conversely, it has found that an applicant’s
detention could not be said to have been arbitrary if the domestic
court gave certain grounds justifying the continued detention on
remand (compare Khudoyorov, cited above, § 131), unless
the reasons given are extremely laconic and without reference to any
legal provision which would have permitted the applicant’s
detention (compare Khudoyorov, cited above, § 157).
80. Moreover, the Court has acknowledged
notably in the context of sub-paragraphs (c) and (e) of Article 5 §
1 that the speed with which the domestic courts replaced a detention
order which had either expired or had been found to be defective is a
further relevant element in assessing whether a person’s
detention must be considered arbitrary. Thus, the Court considered in
the context of sub-paragraph (c) that a period of less than a month
between the expiry of the initial detention order and the issuing of
a fresh, reasoned detention order following a remittal of the case
from the appeal court to a lower court did not render the applicant’s
detention arbitrary (see Minjat, cited above, §§ 46
and 48). In contrast, a period of more than a year following a
remittal from a court of appeal to a court of lower instance, in
which the applicant remained in a state of uncertainty as to the
grounds for his detention on remand, combined with the lack of a
time-limit for the lower court to re-examine his detention, was found
to render the applicant’s detention arbitrary (see Khudoyorov,
cited above, §§ 136-37).
81. In the context of sub-paragraph (e) of
Article 5 § 1, the Court considered that an interval of two
weeks between the expiry of the earlier order of detention in a
psychiatric hospital and the making of the succeeding renewal order
could in no way be regarded as unreasonable or excessive so that this
delay did not involve an arbitrary deprivation of liberty (see
Winterwerp v. the Netherlands, 24 October 1979, § 49,
Series A no. 33). In contrast, a delay of eighty-two days between the
expiry of the initial order of detention in a psychiatric institution
and its renewal and the lack of adequate safeguards to ensure that
the applicant’s detention would not be unreasonably delayed was
found to be inconsistent with the purpose of Article 5 § 1
to protect individuals from arbitrary detention (see Erkalo,
cited above, §§ 57-60 in respect of both
sub-paragraphs (a) and (e) of Article 5 § 1).”
(b) Application of these principles in the
present case
In
examining whether the applicant’s detention was “lawful”
within the meaning of Article 5 § 1, including the issue whether
“a procedure prescribed by law” was followed, the Court
will first review whether the applicant’s detention complied
with Croatian law.
In
the present case, it has to be noted that on 12 December 2007 the
Osijek Municipal Court ordered the applicant’s pre-trial
detention in connection with the criminal proceedings instituted
against him on the grounds that there was a danger that he would
reoffend.
However,
on 27 December 2007 the Osijek County Court found that the detention
order issued by the Municipal Court on 12 December 2007 failed to
comply with the formal requirements of domestic law laid down in
Article 105 § 1 of the Code of Criminal Procedure, as it did not
properly summon the defence lawyer. The detention order thus suffered
from a procedural defect since it was adopted without the applicant’s
counsel being present although he had been summoned.
The
Court reiterates that defects in a detention order do not necessarily
render the underlying detention “unlawful” for the
purposes of Article 5 § 1. The Court has to examine whether the
flaw in the order against the applicant amounted to a “gross
and obvious irregularity” so as to render the underlying period
of his detention unlawful (see Liu, cited above, § 81;
Garabayev v. Russia, no. 38411/02, § 89, 7 June 2007,
ECHR 2007 ... (extracts); Marturana v. Italy, no.
63154/00, § 79, 4 March 2008; and Mooren, cited above, §
84).
In
determining whether the detention order of 12 December 2007 suffered
from a “gross and obvious irregularity” so as to be ex
facie invalid, which would in turn render the applicant’s
detention based on that order unlawful for the purposes of Article 5
§ 1, the Court will have regard to all the circumstances of the
case, including, in particular, the assessment made by the domestic
courts.
It
has not been alleged that on 12 December 2007 the Municipal Court
acted in excess of its jurisdiction. Indeed, as a matter of domestic
law, it had the authority to order the applicant’s detention in
relation to the pending criminal proceedings against him before that
same court. The detention order of 12 December 2007 was not quashed
because the Municipal Court had not given reasons to justify the
necessity of holding the applicant in custody, but owing to a
procedural flaw. The Court notes that the Municipal Court appointed
the applicant defence counsel as early as 6 December 2007,
before a decision ordering his detention was adopted and before he
was arrested. Before holding a hearing concerning the applicant’s
detention, the Municipal Court summoned the defence lawyer by fax on
12 December 2007 at 10.55 a.m. However, it turned out later that
the defence lawyer had not received the summons since he had been
attending another hearing at that time. In these circumstances the
Court considers that the procedural flaw in question did not amount
to a “gross or obvious irregularity” in the exceptional
sense indicated by the case-law (compare Lloyd and Others v.
the United Kingdom, nos. 29798/96 et seq., § 114,
1 March 2005).
Furthermore,
the Court does not find that the Municipal Court acted in bad faith
or that it neglected to attempt to apply the relevant procedures
correctly. The fact that certain flaws in the procedure were found on
appeal does not in itself mean that the detention was unlawful (see
Gaidjurgis v. Lithuania (dec.), no. 49098/99, 16
January 2001; Benham v. the United Kingdom, judgment of
10 June 1996, Reports of Judgments and Decisions 1996-III,
§ 47; and Liu v. Russia, no. 42086/05, § 82, 6
December 2007).
As
to the present case, the Court observes that the County Court quashed
the decision of 12 December 2007 due to a procedural flaw. There is
no doubt that an appeal court is empowered to quash a decision
subject to its review and remit the case for fresh examination.
Indeed, as a matter of domestic law, it had the authority to quash
the first-instance decision on detention under Article 398 (3) of the
Code of Criminal Procedure. As regards the County Court’s
decision to maintain the applicant’s detention, the Court notes
that in the reasoning of its decision, the County Court, as stated
above, relied on formal defects of the procedure leading to the
impugned decision of the Municipal Court. On the other hand, the
County Court in no way questioned the grounds for ordering the
applicant’s detention, namely, the danger that he would
reoffend. Furthermore, it in no way called into question that there
was a reasonable suspicion that the applicant had committed a
criminal offence. Thus, the Court accepts that the County Court’s
decision to maintain the applicant’s detention was based on
these grounds. It can therefore be presumed that the decision of the
County Court accepted the reasons given by the Municipal Court for
maintaining the applicant’s detention (see, a contrario,
Bakhmutskiy v. Russia,
no. 36932/02, § 112, 25 June 2009).
The
Court has further acknowledged in previous cases that the speed with
which the domestic courts replace a detention order which has either
expired or been found to be defective is a further relevant factor in
assessing whether a person’s detention must be considered
arbitrary (see Minjat v. Switzerland, no. 38223/97, §§
46 and 48, 28 October 2003; Khudoyorov, cited above, §§
136-37; and Mooren, cited above, § 95).
In
the present case, following the County Court’s decision of
27 December 2007 to remit the case to the Municipal Court, the
applicant remained in custody until 2 January 2008, when the
Municipal Court issued a fresh detention order which was adopted
after a panel meeting in the presence of defence counsel had been
held. Thus, the period in question amounted to five days which, in
the Court’s view appears reasonable in the given circumstances.
The Court finds that the time that elapsed between the County Court’s
finding that the detention order was defective and the issuing of a
fresh detention order by the Municipal Court did not render the
applicant’s detention arbitrary either (see, by way of
comparison, Mooren, cited above, § 96).
Having
regard to the foregoing, the Court concludes that the applicant’s
detention was “lawful” and “in accordance with a
procedure prescribed by law” for the purposes of Article 5 §
1.
There
has therefore been no violation of Article 5 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 AND ARTICLE 13
OF THE CONVENTION
The
applicant complained that the proceedings concerning the lawfulness
of his detention had not complied with the guarantees of Article 5
§ 4 and Article 13 of the Convention which read:
Article 5 § 4
“4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful.”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
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’ arguments
The
applicant maintained that the Constitutional Court had declared his
constitutional complaint of 15 January 2008, lodged against the
decision of the Osijek County Court of 27 December 2007, inadmissible
solely on the ground that a fresh decision extending his detention
had been adopted in the meantime. In the applicant’s
view, such a practice ran counter to the requirements of Article 5 §
4 and Article 13 of the Convention.
The
Government argued that the applicant’s detention had been
reviewed by the competent courts and that the applicant had also had
the possibility under domestic law of applying for his detention
order to be lifted. The applicant had been able to lodge an appeal
against all decisions concerning his detention and his appeals had
been speedily decided. As regards the powers of the Constitutional
Court in matters concerning detention, the Government submitted that
it was empowered to review decisions ordering and extending detention
and to quash such decisions where it found that they had contravened
the right to personal liberty, guaranteed by the Constitution and the
Convention. However, the requirements of Article 5 § 4 in
Croatia were satisfied through judicial protection by lower courts
and could not go so far as to be applicable to proceedings concerning
a constitutional complaint.
2. The Court’s assessment
(a) General principles
The
Court reiterates that the purpose of Article 5 § 4 is to assure
to persons who are arrested and detained the right to judicial
supervision of the lawfulness of the measure to which they are
thereby subjected (see, mutatis mutandis, De Wilde, Ooms
and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12,
and Ismoilov and Others v. Russia, no. 2947/06, § 145,
24 April 2008). A remedy must be made available during a
person’s detention to allow that person to obtain speedy
judicial review of the lawfulness of the detention, capable of
leading, where appropriate, to his or her release. The existence of
the remedy required by Article 5 § 4 must be sufficiently
certain, not only in theory but also in practice, failing which it
will lack the accessibility and effectiveness required for the
purposes of that provision (see, mutatis mutandis,
Stoichkov v. Bulgaria, no. 9808/02, § 66
in fine, 24 March 2005, and Vachev v. Bulgaria,
no. 42987/98, § 71, ECHR 2004 VIII). The accessibility
of a remedy implies, inter alia, that the circumstances
voluntarily created by the authorities must be such as to afford
applicants a realistic possibility of using the remedy (see, mutatis
mutandis, Čonka v. Belgium, no. 51564/99, §§ 46
and 55, ECHR 2002 I).
(b) Application of these principles in the
present case
The
Court firstly notes that under the relevant domestic law, after an
indictment has been lodged, detention must be judicially reviewed
every two months. The Court notes that in the circumstances of the
present case the lawfulness of the applicant’s detention was
considered by the Osijek County Court on 27 December 2007 and that it
quashed the decision of the Osijek Municipal Court ordering the
applicant’s detention but did not lift the detention. The
applicant lodged a constitutional complaint on 15 January 2008,
complaining that although the decision ordering his detention had
been quashed, he had had to stay in detention.
The
Court notes further that the national system allows for a
constitutional complaint against each appeal decision concerning
detention. However, the Court notes that the practice of the
Constitutional Court is to declare inadmissible each constitutional
complaint where, before it has given its decision, a fresh decision
extending detention has been adopted in the meantime. Thus, the
applicant’s constitutional complaint of 15 January 2008 was
declared inadmissible on such grounds. The
Court therefore has to address the question of the compliance of the
Constitutional Court’s decisions of 18 February 2008 with the
requirements of Article 5 § 4 of the Convention.
In
this connection the Court reiterates that, according to its case-law,
Article 5 § 4 enshrines, as does Article 6 § 1, the right
of access to a court, which can only be subject to reasonable
limitations that do not impair its very essence (see Shishkov
v. Bulgaria, no. 38822/97, §§ 82-90, ECHR 2003-I,
and Bochev v. Bulgaria, no. 73481/01, § 70, 13 November
2008).
Furthermore,
Article 5 § 4 does not compel the Contracting States to set up a
second level of jurisdiction for the examination of applications for
release from detention. Nevertheless, a State which institutes such a
system must in principle accord detainees the same guarantees on
appeal as at first instance (see Toth v. Austria, 12 December
1991, § 84, Series A no. 224; Rutten v. the Netherlands,
no. 32605/96, § 53, 24 July 2001; Lanz v. Austria,
no. 24430/94, § 42, 31 January 2002; and Svipsta v. Latvia,
no. 66820/01, § 129, ECHR 2006 III). The Court
considers that the same applies in a system which provides for a
constitutional complaint against decisions ordering and extending
detention.
However,
the Croatian system, although allowing for a constitutional
complaint, leaves it to the Constitutional Court to await a fresh
decision on extending detention and then to declare the complaint
against the previous decision on detention inadmissible. Thus,
although the applicant lodged a constitutional complaint against the
decision of the Osijek County Court of 27 December 2007, the
Constitutional Court did not decide on the applicant’s
complaint until 18 February 2008, only to declare the complaint
inadmissible because a fresh decision had meanwhile been adopted. The
Court finds that the applicant’s constitutional complaint of 15
January 2008 was not decided upon speedily and that the issue of the
constitutionality of his detention was allowed to remain unaddressed.
In
the Court’s opinion, the Constitutional Court’s failure
to decide speedily on the applicant’s constitutional complaint
made it impossible to ensure the proper and meaningful functioning of
the system for the review of his detention, as provided for by the
national law. By declaring the applicant’s constitutional
complaint inadmissible simply because a fresh decision extending his
detention had meanwhile been adopted, the Constitutional Court did
not satisfy the requirement “that the circumstances voluntarily
created by the authorities must be such as to afford applicants a
realistic possibility of using the remedy”. Thus, it fell short
of its obligation under Article 5 § 4 of the Convention to
review the lawfulness of the applicant’s detention. There has
accordingly been a violation of that provision.
In
view of the above conclusion the Court considers that there is no
need to examine the complaint separately under Article 13 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
Lastly,
the applicant complained that Article 6 had been violated in the
criminal proceedings against him without further substantiation.
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 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 3,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government deemed the claim excessive.
The
Court awards the applicant EUR 1,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable to the applicant on that
amount.
B. Costs and expenses
The
applicant also claimed EUR 1,260 for the costs and expenses incurred
before the domestic courts: EUR 840 in respect of his constitutional
complaint and EUR 1,700 for those incurred before the Court.
The
Government made no comments as to the amount of the costs claimed.
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 that the applicant’s request before the
Constitutional Court was essentially aimed at remedying the violation
of the Convention alleged before the Court, and that the costs
incurred in respect of this remedy may be taken into account in
assessing the claim for costs (see Scordino, cited above, §
28; and Medić v. Croatia,
no. 49916/07, § 50, 26 March 2009). Regard being had to
the information in its possession and the above criteria, the Court
awards the applicant the sum of EUR 840 for the costs and expenses
incurred in the domestic proceedings and EUR 1,700 in respect of the
proceedings before the Court, both plus any tax that may be
chargeable to the applicant on that amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints concerning the
applicant’s right to liberty of person and the complaint about
the proceedings concerning the lawfulness of his detention as well as
the complaint about the lack of an effective remedy admissible and
the remainder of the application inadmissible;
Holds that there has been no violation of
Article 5 § 1 of the Convention;
Holds that there has been a violation of Article
5 § 4 of the Convention;
Holds that there is no need to examine the
complaint under Article 13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts which are to be converted into Croatian kuna at the rate
applicable on the date of settlement:
(i)
EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;
(ii) EUR
2,540 (two thousand five hundred and forty euros) in respect of costs
and expenses;
(iii) any
tax that may be chargeable to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 1 July 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
