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Cite as: [2010] ECHR 1845
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FIRST SECTION
CASE OF GETOŠ-MAGDIĆ v. CROATIA
(Application no. 56305/08)
JUDGMENT
STRASBOURG
2 December 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 Getoš-Magdić 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 9 November 2010,
Delivers the following judgment, which was adopted on the last mentioned date:
PROCEDURE
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
B. Criminal proceedings against the applicant
1. Investigation
2. Criminal trial
C. Decisions concerning the applicant’s detention
“In the submission ... of 19 October 2006 the Osijek-Baranja Police Department, Criminal Police Division, informed this investigating judge that police questioning of the suspect Gordana Getoš-Magdić had been carried out in connection with the criminal offence set out in Article 120 § 1 of the Criminal Code, committed in the territory of the city of Osijek in 1991 and 1992.
They allege that Gordana Getoš-Magdić was arrested on 19 October 2006 at 1.30 a.m. in connection with a reasonable suspicion that she had committed the said criminal offence and that ... several other members of the [military] squad under her command had also been arrested; [they] were giving their statements on fresh relevant facts and indications, which additionally confirmed the reasonable suspicion that Gordana Getoš-Magdić had committed the said criminal offence; the identification of other members of that squad was also under way, as was identification of the murder victims whose identity had not yet been established, for all of which the first twenty-four hours after the arrest did not suffice. Therefore they ask that the detention in police custody be extended.
The request is well-founded.
The documents in the case file of this court, no. Kio-170/06, which also contains the police case file ..., show that a reasonable suspicion that Gordana Getoš-Magdić committed the criminal offence with which she has been charged arises from the defence given by M.S. ...
Since a police investigation has been carried out in order to establish the identity of the other member of the [military] squad under the command of Gordana Getoš-Magdić and since several members of that squad have also been arrested and the interviews with them are ongoing, and since it is necessary to identify the victims ..., it is obvious that the first twenty-four hours following the arrest could not suffice for these tasks and that a further twenty-four hours in police custody is necessary and sufficient for collecting [further] information on the evidence. In respect of the suspect Gordana Getoš-Magdić, the grounds for detention under Article 102 § 1(2) of the Code of Criminal Procedure exist for the time being because there is a reasonable suspicion that, in order to exculpate herself, she could hinder the criminal proceedings by suborning witnesses. Grounds for detention also exist under Article 102 § 1(4) of the Code of Criminal Procedure since the criminal offence [for which she is being held] falls within the category of offences set out in Article 181 of the Code of Criminal Procedure, that is, the criminal offence under Title XII of the Criminal Code, which carries a sentence of imprisonment for twenty years. In view of the fact that [the charges involve allegations of] liquidation by firearms, after which the corpses were thrown into the river Drava, actions typical of an execution, the court finds that these [factors] characterise the circumstances of the offence as serious and thus call for a custodial measure ...”
“Since it is necessary to interview a large number of witnesses during the investigation, many of whom are members of the Croatian Army, that is, colleagues of the defendants, the court finds that there is a reasonable suspicion that the defendants, if at large, might suborn these witnesses; this fulfils the conditions for detention under Article 102 § 1(2) of the Code of Criminal Procedure.
Furthermore, the first to fifth defendants are suspected of having committed the criminal offence set out in Article 120 § 1 of the Criminal Code, which carries a sentence of twenty years’ imprisonment, in that they illegally arrested some individuals of Serbian origin, then illegally interrogated and ill-treated them, after which they bound their hands and mouths with self-adhesive tape and took some of them to the banks of the river Drava, where they killed them with shots from firearms and threw their bodies into the river Drava. Therefore, since these are actions typical of an execution, the court finds that the circumstances of the offence can be characterised as particularly serious and thus call for a custodial measure ...”
“Contrary to the allegations in the defendants’ appeals, the investigating judge correctly found that the legal grounds for the defendants’ detention under Article 102 § 1 (2 and 4) of the Code of Criminal Procedure did exist.
There is a reasonable suspicion that the defendants committed a criminal offence against humanity and international law, namely war crimes against the civilian population as set out under Article 120 § 1 of the Criminal Code. A decision by the investigating judge ... of 22 October 2006 ordered that an investigation be carried out in respect of the said defendants, in connection with a reasonable suspicion that in the period from the middle of October to the end of December 1991 in Osijek, during the defence of the city from the joint aggression by the Y[ugoslav] P[eople’s] A[rmy] and rebels from the local Serbian population against the constitutional order of the Republic of Croatia, they [acted] contrary to Article 3 of the [Fourth] Geneva Convention Relative to the Protection of Civilian Persons in Time of War and Article 4 §§ 1 and 2(a), Article 5 § 3 and Article 13 § 2 of the Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), in that B.G., as the secretary of the Secretariat for People’s Defence of the Osijek Municipality, acting as the de facto, and from 7 December 1991 also the formal, commander-in-chief of the defence of the city of Osijek, ordered the first defendant, I.K., and the ... defendant Gordana Getoš Magdić to form a [military] squad of dependable and loyal persons for special reconnaissance and sabotaging tasks, which would be under his supervision. After they had formed such a squad, on a number of occasions he illegally ordered them to arrest civilians of Serbian origin, and ordered their ill-treatment and killing; the first defendant, I.K., as the squad commander, and the ... defendant, Gordana Getoš Magdić, as commander of one of the subdivisions of the squad, accepted and carried out these orders or transmitted them to the members of the squad ...
The investigating judge’s order accepted a request by the Osijek County State Attorney’s Office to hear evidence from thirty-one persons in connection with the commission of the said criminal offences ... Furthermore, the investigation order states that some of these witnesses had been members of the same squad as the defendants ... None of the witnesses has been examined so far. Therefore, the investigating judge’s conclusion that, once at large, the defendants might hinder the criminal proceedings by suborning witnesses was justified. There is therefore a legal ground for detention under Article 102 § 1 (2) of the Code of Criminal Procedure.
Furthermore, in view of the manner in which the criminal offences of which the defendants were accused had been committed, and because of a reasonable suspicion that they had committed the criminal offence of war crimes against the civilian population, carrying a sentence of twenty years’ imprisonment, and in view of the illegal arrests, interrogations and ill-treatment, binding of hands and mouths [of the victims] with self-adhesive tape and subsequent liquidation of a large number of civilians, the investigating judge correctly found that these factors, taken together, characterised the circumstances of the offence as particularly serious and held that detention was necessary because the legal grounds set out in Article 102 § 1(4) of the Code of Criminal Procedure had been fulfilled.”
“Defence counsel for the third defendant, Gordana Getoš-Magdić, relied in particular on the health ailments of the defendant and her minor child. She argued that the same aim could have been achieved by preventive measures.
...
In the indictment filed by the Osijek County State Attorney ... on 16 April 2007 the defendants ... were accused of having ordered killings and ill-treatment of members of the civilian population, ... and thus of committing a criminal offence against humanity and international law – war crimes against the civilian population – as set out in Article 120 § 1 of the Criminal Code. The factual description from the indictment alleged that in November and December 1991 in Osijek, in the period when the city was being defended from the joint aggression by the YPA and the paramilitary formations of the rebel local Serbian population against the constitutional order of the Republic of Croatia, the defendants had acted contrary to Article 3 of the [Fourth] Geneva Convention relative to the Protection of Civilian Persons in Time of War, as well as Article 4 §§ 1 and 2(a), Article 5 § 3 and Article 13 § 2 of the Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), in that the first defendant, B.G., initially as the secretary of the Secretariat for People’s Defence of the Osijek Municipality and from 7 December 1991 as the commander-in-chief of the defence of the city of Osijek, the second defendant, I.K., as a commander of the special [military] squad for reconnaissance and sabotaging tasks, the third defendant, Gordana Getoš Magdić, as a commander of one of the subdivisions of that squad and the fourth to seventh defendants as members of that subdivision, had participated in illegal arrests, kidnappings, inhuman treatment and killings of civilians of Serbian origin. In November and December 1991 in Osijek, they had arrested an unknown man, and bound with self-adhesive tape J.G., M.K., S.V., an unknown woman and B.G., and had taken them to the banks of the river Drava. Once there they had shot them in the head with firearms and thrown their bodies into the river. They had also taken B.L. and A.Š. to 30 Dubrovačka Street, where they had struck A.Š. all over his body, and had then taken them to the banks of the Drava, where they had shot them with firearms before throwing them into the river. They had beaten M.S., thus causing him multiple injuries, and had then tied him up with rope and killed him by throwing him from a railway bridge into the Drava. They had arrested P.L., taken him to the banks of the Drava, shot him with firearms and thrown [his body] into the river. They had arrested R.R. and taken him to 30 Dubrovačka Street and then to the banks of the Drava, where they had shot him at least twice with firearms and thrown him into the river, but he had nevertheless survived; [the defendants] had thus committed the criminal offence of war crimes against the civilian population under Article 120 § 1 of the Criminal Code.
The existence of a reasonable suspicion that the defendants committed a criminal offence is a general ground for ordering and extending their detention.
The said criminal offence carries at least five years’ imprisonment or imprisonment for twenty years. Taken together, the above-mentioned circumstances of the offence, involving particularly brutal and ruthless actions by the defendants against the victims, constitute particularly serious circumstances, which require that the custodial measure imposed on the defendants ... be extended ... under the legal grounds set out in Article 102 § 1(4) of the Code of Criminal Procedure.
...”
“This panel finds that since the last decision on detention ordered under Article 102 § 1(4) of the Code of Criminal Procedure there have been no significant changes as regards the relevant circumstances in respect of the defendant ... Gordana Getoš Magdić. That is to say that the acts of which the defendants are accused, as regards their modus operandi and entire criminal activity, surpassed the usual manner of committing the criminal offence of war crimes against the civilian population. This is indicated by the facts in the indictment showing that the defendants had acted as an organised group, had been mutually connected and that [their acts] had all been motivated by national hatred. ...”
“At this stage of the proceedings, now that the indictment has been lodged ... this court considers that there is a high degree of suspicion that the defendants committed the criminal offences with which they have been charged. The decision on their further detention must be based exclusively on an assessment of the elements which, judging from the facts alleged in the indictment, might lead to the conclusion that in this case ... the manner in which the offence was committed, or the fact that it was committed in particularly serious circumstances, justify detention under Article 102 § 1(4) of the Code of Criminal Procedure.
The defendants are correct in their assertion that the gravity of the offence in itself does not suffice to conclude that there are particularly serious circumstances which make detention necessary. However, the first-instance court found that such circumstances did exist on the basis of the concrete facts and acts of which the defendants are accused. The criminal offence of war crimes against the civilian population may be constituted by various acts. The defendants have been charged with the gravest acts, involving illegal arrests, ill-treatment and killings of civilians who had not given any cause for such acts. All the victims were citizens of Osijek, whose security the first defendant was under an obligation to defend, a fact correctly pointed out by the first-instance court when assessing the gravity of the charges against him.
The Supreme Court considers the finding of the first-instance court that the offence was committed in particularly serious circumstances to have been correct. The charges against the defendants include the fact that, on the order of the first defendant, B.G., the defendants I.K. and Gordana Getoš-Magdić formed a [military] squad for special reconnaissance and sabotaging tasks and ordered the members of the squad to illegally arrest civilians of Serbian and other national origins, torture and kill them, which orders the defendants M.S., D.K., T.V. and Z.D. carried out. Thus they, tempore criminis, organised the liquidation of the civilian population in that territory, in that they systematically arrested, detained, tortured and killed individuals. The treatment of victims was exceptionally brutal and utterly inhuman. Some of them had been severely beaten, bound with self-adhesive tape and then taken to the banks of the river Drava, where they had been executed by shots from firearms to their heads and bodies, before being thrown into the river. In the case of the victim R.R., who had survived being shot in the head and being thrown into the river, an additional order that he be killed in hospital had been issued.
The court also considers that the above acts by the defendants represent particularly serious circumstances, which exceed the ordinary form of such crimes. Further detention of the defendants on the grounds provided for under Article 102 § 1(4) of the Code of Criminal Procedure is therefore justified.
The defendants’ assertion that the criminal proceedings could be conducted without their detention because the same purpose could be achieved by other preventive measures cannot be accepted. The aim of detention under Article 102 § 1(4) of the Code of Criminal Procedure is not to remove possible obstacles to the efficient and unhindered conduct of the criminal proceedings as is the case with the grounds for detention set out in Article 102 § 1(1), (2) and (3) of the Code of Criminal Procedure. The aim of detention under [Article 102 § 1(4) of the Code of Criminal Procedure] is that persons whose acts cause special moral reproach should not be kept at large, as this could influence the public in such a way as to diminish trust in the criminal justice system.”
“A reasonable suspicion that the third [the applicant], fifth and sixth defendants committed the criminal offences defined in the indictment still exists, this being a general statutory requirement under Article 102 § 1 of the C[ode of] C[riminal] P[rocedure] for extending the detention.
The third, fifth and sixth defendants have been indicted for criminal offences against humanity and international law – war crimes against the civilian population – under Article 120 § 1 of the Criminal Code, carrying a minimum of five years’ imprisonment or imprisonment for twenty years; this is one of the criteria for detention under Article 102 § 1(4) of the CCP.
Furthermore, the third, fifth and sixth defendants have been indicted for the gravest acts which could possibly be committed against the civilian population, namely illegal arrests, torture and killings of civilians. The civilians were tortured and killed for no reason and the motive was national hatred.
The charge against the third defendant, Gordana Getoš-Magdić, states that she, together with the second defendant, I.K., on the order of the first defendant, B.G., formed a [military] squad for special reconnaissance and sabotaging tasks and illegally arrested civilians of Serbian and other national origins, tortured and killed them, and transmitted such orders to their subordinates in the said squad... The victims were severely beaten and then taken to the banks of the river Drava, bound with self-adhesive tape and shot in the head, their bodies then being thrown into the river.
A further charge against the third defendant, Gordana Getoš-Magdić, states that, together with the sixth defendant, T.V., and the seventh defendant, Z.D., she took B.L. from his family house ..., arrested him and detained him in a house at 30 Dubrovačka Street.
...
In respect of the victim R.R., who had been shot in the head on the orders of the first defendant, B.G., but nevertheless survived, it is alleged that the third defendant, Gordana Getoš-Magdić, ordered that he be killed in hospital.
The above descriptions of the acts of the third, fifth and sixth defendants contain a number of aspects which, by their nature and intensity, can be characterised as particularly serious circumstances of the offence; for this reason, detention under Article 102 § 1(4) of the CCP remains necessary.
...
Judging from the gravity of the offences with which they are charged and the sentences that could be expected on the basis of the information in the case file, the length of time for which the third, fifth and sixth defendants have so far been detained does not appear disproportionate to a degree that is decisive in ordering their further detention.
The request of the third defendant Gordana Getoš-Magdić that her detention be replaced by house arrest is not well-founded, because the measure of house arrest has not been prescribed as an alternative for detention under Article 102 § 1(4) of the CCP.
Rule 3 of the Rules on House Arrest (Official Gazette no. 3 of 7 January 2008) provides that the freedoms and rights of a detainee under house arrest may be restricted to the extent needed for the fulfilment of the purpose for which house arrest has been ordered; to prevent the detainee from absconding; to prevent the repetition, completion or commission of a criminal offence he or she has been threatening to commit; and to prevent communication between the detainee and other persons, save for those he or she lives with or who provide him or her with the necessary means of subsistence.
Since the allegations in the request for the detention measure to be lifted are not of such a nature as to justify the lifting of that measure, in the opinion of this panel the conditions for ordering an alternative preventive measure have not yet been fulfilled, and the request has to be dismissed ...”
“The acts of the defendants as described above show a high degree of ruthlessness, brutality and cruelty towards civilians, which resulted in the grave consequence of the killing of these persons. Therefore, this appellate court finds that such acts by the defendants went significantly beyond the usual acts and consequences of such offences and, in their intensity and nature, show that the offence was committed in particularly serious circumstances, such that detention under Article 102 § 1(4) of the CCP remains necessary.
The arguments of the defendant Gordana Getoš-Magdić ... that the facts in the indictment had not been proven are not of decisive importance for extending her detention, because it is sufficient for there to be a relevant degree of reasonable suspicion; this follows from the indictment and the evidence so far presented, although the final assessment of all evidence and the defendants’ defence, and the subsequent assessment of whether the relevant facts have or have not been proven in respect of the criminal offences at issue, is in the hands of the trial panel ...
Contrary to the arguments advanced by the defendant Gordana Getoš-Magdić, the provisions of the Code of Criminal Procedure concerning detention do not run counter to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’), since Article 5 of the Convention provides for 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 of fleeing after having done so, and this is not at odds with Article 102 § 1 of the CCP.
The state of health of the defendant Gordana Getoš-Magdić does not preclude the existence of the statutory ground for extending her detention, because any necessary medical care could be provided in prison or, exceptionally, outside the prison. Likewise, any necessary medical, psychological or other assistance can be given to her child in suitable institutions, staffed by appropriate experts.
Contrary to the objections of the defendant Gordana Getoš-Magdić ..., the preventive measures under Article 90 of the CCP could not fulfil the aim of extended detention [under Article 102 § 1(4) of the Code of Criminal Procedure], nor can this measure be replaced by house arrest, because Article 102 of the CCP does not provide for such an option.”
“Owing to their particular gravity and the possible public reaction, certain criminal offences may cause public unrest which could justify detention. In the view of this court, when assessing whether further detention of an applicant is justified under the grounds set out in Article 102 § 1(4) of the CCP, the gravity of the offence in itself does not suffice but, in addition, the [above] ground for detention must exist in reality. The extension of detention should not amount to the anticipated prison term.
In the court’s opinion, the significance of the initial grounds for the applicants’ detention, in view of the passage of time and the fact that the applicants have so far been detained for almost two years, does not suffice to justify further extension of their detention.
The Constitutional Court considers that in the present case (apart from the fact that the detention has already lasted too long) the public interest in extending the applicants’ detention during the criminal proceedings against them – in which their guilt for the alleged criminal offences has yet to be decided – does not carry more weight than the right of personal liberty guaranteed by the Constitution and the European Convention on Human Rights.
...”
The applicant was released on the same day.
II. RELEVANT DOMESTIC LAW
Article 140
“International agreements concluded and ratified in accordance with the Constitution and made public, and which are in effect, are incorporated into Croatian law and are, in terms of legal effect, above statutes. ...”
Article 97
“(1) The police shall immediately, or within twenty-four hours at the latest, bring the arrested person to an investigating judge or release him or her. Reasons shall be given for any delay.
...”
Article 98
“(1) The investigating judge may, at the request of the police or the State Attorney, in a written and reasoned decision, order the detention of the arrested person for twenty-four hours where the investigating judge has established that there is a well founded suspicion that the arrested person has committed the criminal offence with which he or she has been charged, and where the grounds under Article 102 § 1(1) and (2) of the present Act exist and detention is necessary in order to establish identity, verify an alibi, collect evidence or remove a serious risk for the lives or health of persons or for assets of significant value ... Exceptionally, the investigating judge may, at the request of the police or the State Attorney, order that the arrested person be kept in police custody where [he or she has been charged] with criminal offences under Article 181 of this Act which are punishable by a prison term exceeding five years.
(2) The investigating judge may, proprio motu or at the request of the State Attorney, order that the arrested person be kept in custody for up to forty-eight hours where he or she considers that there is a well-founded suspicion that the arrested person has committed the criminal offence with which he or she has been charged and that grounds under Article 102 § 1 of the present Code obtain, in cases where the State Attorney has not made a request for an investigation or an indictment. Where the State Attorney fails to bring a request for investigation or an indictment within forty-eight hours, the arrested person shall be released.
(3) Where the arrested person has been kept in custody under paragraph 1 of the present Article, the investigating judge may order custody under paragraph 2 hereof for a further twenty-four hours.
...”
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) The detention measure 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, and the need to order and determine the duration of the detention.
(4) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is being held in detention and shall review as a matter of course whether the grounds and legal conditions for detention have ceased to exist, in which case the custodial measure shall immediately be lifted.”
9. Grounds for Ordering Detention
Article 102
“(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention:
...
2. if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might suborn witnesses, or where there is a risk of collusion;
...
4. if the charges involved relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, when detention is justified by the modus operandi or other particularly serious circumstances of the offence;
...”
Article 106
“(1) Detention ordered by an investigating judge ... shall not exceed one month ...
(2) During the investigation the investigating judge ... may, for justified reasons, extend detention for the first time for a maximum of two months and then for a further maximum of three months.
(3) The maximum duration of detention during the investigation shall not exceed six months ...”
Article 107
“...
(2) After the indictment has been lodged ... a [judicial] panel ... shall examine every two months whether the statutory conditions for detention have continued to exist ...”
Appeal against a decision ordering, lifting or
extending a custodial measure
Article 110
“(1) A defendant, defence counsel or the State Attorney may lodge an appeal against a decision ordering, extending or lifting a custodial measure, within two days thereof...
...”
War Crimes against the Civilian Population
“Whoever, in violation of the rules of international law during war, armed conflict or occupation, orders: ... the killing, torture or inhuman treatment of civilians; ... the infliction of grave suffering on or injuries to the bodily integrity or health of civilians; ... measures of fear and terror against civilians or the taking of hostages, ... illegal arrests ... shall be sentenced to not less than five years’ imprisonment or to twenty years’ imprisonment.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
A. The parties’ arguments
B. The Court’s assessment
1. Grounds for detention
(a) Period between 18 October 2006 and 16 April 2007 (investigation)
(i) Reasonable suspicion that the applicant had committed a criminal offence
(ii) The danger of suborning witnesses
(b) Period between 16 April 2007 and 17 September 2008 (criminal trial)
“62. The applicant was charged with numerous counts of drug smuggling committed in an organised and armed criminal group (see paragraph 12 above).
In the Court’s view, the fact that the case concerned a member of such a criminal group should be taken into account in assessing compliance with Article 5 § 3 (see Bąk v. Poland, no. 7870/04, § 57, 16 January 2007).”
Likewise, in the present case the Court considers that the fact that the applicant was charged with war crimes against the civilian population, allegedly committed over a lengthy period of time as one of the leaders of an organised group, is of significance.
(c) Conduct of the proceedings
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“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.”
1. The parties’ arguments
2. The Court’s assessment
(a) General principles
(b) Application of these principles in the present case
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(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 kunas at the rate applicable on the date of settlement:
(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
Done in English, and notified in writing on 2 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar
President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Rozakis, Malinverni and Nicolaou is annexed to this judgment.
C.L.R.
A.M.W.
PARTLY DISSENTING OPINION OF JUDGES ROZAKIS, MALINVERNI AND NICOLAOU
We are in agreement with the majority that the applicant’s detention spanning the whole of the investigation period from 18 October 2006 to 16 April 2007 was justified. We observe in this regard that although the domestic courts relied both on Article 102 § 1(2) and Article 102 § 1(4) of the Code of Criminal Procedure to justify the detention (see the excerpts in paragraphs 33 and 38 of the judgment, as well as what is stated in paragraphs 39 and 40) the majority has, quite rightly, upheld the detention solely on the ground, provided for in Article 102 § 1(2), that if the applicant were released prior to the completion of the investigation “she might suborn witnesses.” The judgment does not cite the Article 102 § 1(4) ground as additional justification for that period of detention. It is in fact completely silent in so far as that ground is concerned.
Yet, for the subsequent period of detention – the pre-trial detention which commenced when the bill of indictment was filed on 16 April 2007 – the domestic courts justified the applicant’s detention entirely on the Article 102 § 1(4) ground, and the majority accepts that justification as valid. We are unable to share that view. It has not been suggested that Article 102 § 1(4) might be applicable for the latter period but not for the former, and there is certainly nothing to indicate any such dividing line. It is necessary to see what this provision contains and we propose, for a better understanding of its effect, to place it in the context of the overall structure of Article 102 § 1:
Article 102
(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention
1) if there are circumstances indicating a danger of flight (the person is in hiding, his identity cannot be established, etc.);
2) if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might impede the investigation by influencing witnesses, co-principals or accessories after the fact;
3) if special circumstances support the concern that he will repeat the offence, or complete the attempted one, or perpetrate the offence he threatens to commit;
4) if the charges involved relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion, abuse of powers in economic business activities, abuse of office or authority, association to commit a criminal offence or any other criminal offence punishable by imprisonment for a term of twelve years or more and if this is necessary because of the particularly grave circumstances of the offence.
It is quite obvious that detention may be founded on any one of the four above-stated grounds of Article 102 § 1 alone; it is equally obvious that Article 102 § 1(4) refers only to the gravity of the offence and the severity of the penalty. It is not at all concerned with the danger of flight. That falls exclusively under Article 102 § 1(1). We think we should underline this, lest it be thought that reference to the gravity of the actual offence and the likely severity of the punishment might also, by way of shorthand, allude to the possibility of an accused absconding. In fact the domestic courts never hinted at that and there is no reason to think that if they had contemplated such possibility they would not have relied on Article 102 § 1(1) as well.
It is clear that throughout the pre-trial period the domestic courts relied exclusively on the gravity of the offences charged and the likely punishment, laying emphasis on the horrendous nature of the acts charged and on the fact that those acts had been motivated by national hatred directed against blameless civilians. This is illustrated by the following extracts, taken from the decision of the Supreme Court dated 11 May 2007 (see paragraph 48 of the judgment):
“The decision on their further detention must be based exclusively on an assessment of the elements which, judging from the facts alleged in the indictment, might lead to the conclusion that in this case ... the manner in which the offence was committed, or the fact that it was committed in particularly serious circumstances justify detention under Article 102 § 1(4) of the Code of Criminal Procedure ...
... The defendants have been charged with the gravest acts, involving illegal arrests, ill-treatment and killings of civilians who had not given any cause for such acts ...
... The aim of detention under [Article 102 § 1(4) of the Code of Criminal Procedure] is that persons whose acts cause special moral reproach should not be kept at large, as this could influence the public in such a way as to diminish trust in the criminal justice system.”
The aim of preserving public trust in the criminal justice system, to which the Supreme Court referred, may explain the dismissal of the applicant’s request that her detention be replaced by house arrest. The Zagreb County Court said, in its decision of 12 February 2008, that such a measure was not available in respect of an Article 102 § 1(4) detention. It described the ambit of house arrest in the following terms:
“Rule 3 of the Rules on House Arrest (Official Gazette no. 3 of 7 January 2008) provides that the freedoms and rights of a detainee under house arrest may be restricted to the extent needed for the fulfillment of the purpose for which house arrest has been ordered; to prevent the detainee from absconding; to prevent the repetition, completion or commission of a criminal offence he or she has been threatening to commit; and to prevent communication between the detainee and other persons, save for those he or she lives with or who provide him or her with the necessary means of subsistence.”
We also note, however, that the Constitutional Court, which was the final court before which the applicant brought her complaint about her detention, gave a different interpretation of the aim of Article 102 § 1(4), saying that it was intended to guard against public unrest. In its decision of 17 September 2008, by which it quashed the lower courts’ decisions, it explained that
“Owing to their particular gravity and the possible public reaction, certain criminal offences may cause public unrest which could justify detention.”
In respect of the applicant’s detention (she was one of a number of accused) the Constitutional Court criticized the lower courts in no uncertain terms. It said that
“The failure of the courts to assess the appropriateness, necessity and proportionality of detaining the applicants further on the basis of Article 102, paragraph 1, point 4 of the CCP, without a valid explanation according to the principle of proportionality, amounted, in the estimation of the Constitutional Court, to a violation of their constitutional right to personal liberty.”
Not only did it conclude that in the circumstances the right to personal liberty outweighed any public interest in extending the detention, but it also admitted frankly that the detention had already lasted too long:
“The Constitutional Court considers that in the present case (apart from the fact that the detention has undoubtedly already lasted too long) the public interest in extending the applicants’ detention during the criminal proceedings against them – in which their guilt for the alleged criminal offences has yet to be decided – does not carry more weight than the right of personal liberty guaranteed by the Constitution and the European Convention on Human Rights.”
The nature and the actual seriousness of the offences or the gravity of the charges brought, as well as the severity of the penalty that may imposed, are obviously relevant factors which may indicate, especially when the prosecution evidence is strong, that there is a risk of absconding or reoffending. In such a situation it is incumbent on the national judicial authorities to ascertain and evaluate the various elements and factors involved, to explain their conclusions and to give reasons for their decision to detain, or for their decision to grant bail on terms that exceed what may normally be expected. In doing so, they are expected to balance the recognized requirements of public interest that may justify detention against respect for individual liberty, which at that stage is reflected in the presumption of innocence. The constant case-law of the Court leaves no doubt that the seriousness of the offence, whatever form the offence may actually have taken, and the probable severity of sentence do not of themselves, without more, justify detention, at least after the initial period. Article 102 § 1 (4) does not, on the face of it, seem to require more. Accordingly, it cannot constitute a valid basis for detention. However, in interpreting that provision, both the Supreme Court and the Constitutional Court have attributed to it an aim or a purpose to which we must now briefly refer.
In just two cases, both cited in the judgment – we are not aware of others – the Court has accepted that the particular gravity of an offence may generate a public-order issue justifying pre-trial detention. The first was Letellier v. France, 26 June 1991, Series A no. 207, and this was followed by I.A. v. France, 23 September 1998, Reports of Judgments and Decisions 1998-VII. We quote from the former (§ 51), but the same was repeated in the latter (§ 104):
“The Court accepts that, by reason of their particular gravity and public reaction to them certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time. In exceptional circumstances this factor may therefore be taken into account for the purposes of the Convention, in any event in so far as domestic law recognizes ... the notion of disturbance to public order caused by an offence.
However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused’s release would actually disturb public order. In addition detention will continue to be legitimate only if public order remains actually threatened; its continuation cannot be used to anticipate a custodial sentence.”
It is unnecessary in the present case to express a considered view on the “preservation of public order” ground. Even if we were to accept, in the light of what was stated by the Constitutional Court, that Article 102 § 1 (4) recognized such a ground, the domestic courts did not refer to facts capable of supporting it. Indeed, the County Courts and the Supreme Court never mentioned it at all.
In I.A. v. France (cited above) the Court also dealt with detention on the basis of a need to protect an accused. That has not been an issue here and we shall say no more about it.
As to the view of the Supreme Court that detention under Article 102 § 1(4) was justified as a measure aimed at preserving public trust in the criminal justice system, we would point out that the Court’s case-law does not envisage such a measure and we do not think that it should be accommodated. The right to personal liberty – a core right guaranteed by Article 5 of the Convention – must be vigilantly shielded from all kinds of erosive inroads.
We are therefore of the opinion that it has not been shown that the applicant’s pre-trial detention had a sound legal basis and, further, we do not consider that it was in any event supported by relevant and sufficient reasons. Finally, let us respectfully say that we fail to see how, even on the basis of the analysis relied on by the majority, one could arrive at the conclusion that the length of the detention had not exceeded what was reasonable when the Constitutional Court, which looked into the particular requirements of the case, had held that at the time of its decision the applicant had already been in detention for too long.
