(Application no. 20100/06)
25 February 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 Lisica v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Anatoly Kovler, President,
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 4 February 2010,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
3. Criminal trial against the applicants
“The search of the BMW vehicle, owned by the first defendant Zlatko Lisica, was carried out in Bibinje, on 24 May 2000 from 4.10 p.m. to 5.30 p.m. The vehicle was driven into the yard of the Zadar Police Department and the tyres were taken off for the purposes of further tests. The search was carried out by authorised persons K.B., T.J. (the fifth defendant) and T.Z. and the minutes were taken by K.B. During the search forensic technicians T.O. and I.R. collected from [...] inside the vehicle traces of earth from the space for passengers, a rug in front of the driver’s seat, traces from the gear stick and micro traces from the front passenger seat and from the rear right and left seats, all for the purposes of further examination.
On that occasion no neutral comparative samples were collected from the seat covers ...
The evidence given by witnesses, employees of the Zadar Police Department, Z.B., I.R. and A.Š., show that the BMW vehicle had been opened on 26 May 2000 at around 3 p.m. when Z.B., a forensic technician, at the order of his superior ... I.N., in the presence of his colleague I.R. had cut a sample of the seat cover, which had then been, according to the evidence given by E.R., urgently forwarded to the Zagreb Centre for Forensic Expertise.
According to the written report a new search of the BMW vehicle had been carried out afterwards, on 27 May 2000, when certificates on the seizure of certain items had been issued, which items had been forwarded for tests on 28 May 2000 ...
The defence argues that the search of the BMW vehicle of 27 May 2000 was unlawful because the police had entered the vehicle beforehand, and that therefore what was found during that search is unlawfully obtained evidence, as are the results of [examination of] such evidence ...
It is not disputed that forensic technicians B. and R., with the aid of vehicle-electrician, Š., opened the BMW vehicle which had been temporarily seized and took from it a sample of fabric for testing. It is disputed whether that search was carried out without informing the defence counsel and the investigating judge or not.
This court concludes that the police officers, [and] forensic technicians, were in fact performing an act of inquiry under Article 177(1) of the Code of Criminal Procedure because they were preserving traces necessary for examination; since beforehand they had found and secured a trace in the BMW vehicle, it was then necessary to take a neutral comparative sample in order for urgent tests to be carried out [...]. Therefore, it was an act of inquiry which had to be carried out by the police before investigation (as in the instant case); [the police] had been obliged to [take a comparative sample] during the search of 24 May 2000, but had omitted to do so, and therefore did so later, on 26 May 2000.
As regards the taking of a sample of fabric from the BMW vehicle on 26 May 2000, the police had made an omission in that they failed to make an official written record of the act taken, which would have noted that the act [was provided for by] Article 177(2) of the Code of Criminal procedure. However, such an omission did not infringe the defence rights and all has now been remedied by the questioning of the forensic technician as a witness. Therefore, although the procedures followed by the police were deficient, the nature of these deficiencies did not render the evidence [thus obtained] unlawful, as argued by the defence on the ground that the search had been carried out without the presence of the defence counsel and that therefore the further search of 27 May 2000, irrespective of counsel’s presence, had been unlawful because someone had entered the vehicle beforehand and [the authenticity of] the evidence found on 27 May 2000 was open to question
[This court] finds that on 26 May 2000 the police carried out an act of inquiry about which it was not obliged to inform the defence counsel, and therefore the procedures followed [by the police] were not unlawful but acceptable. This court will assess the importance of the evidence – [obtained in] the search carried out on 27 May 2000 – when assessing all the evidence together in view of the fact that a search of the same vehicle had been carried out three days before by a policeman who was later on a defendant [in the same criminal proceedings].
For the above reasons the request of the defence for the exclusion of evidence, [namely] a written record on the search of the BMW vehicle of 27 May 2000, has been dismissed, as well as the request for the exclusion of the evidence relating to the transcript of the search, namely certificates on seized items, photo documentation of the search and [the results of] mechanical examinations, on the ground that they had been obtained unlawfully.”
No separate appeal was allowed, but only an appeal against the judgment, which was yet to be adopted.
“The first defendant, Zlatko Lisica, the second defendant, Meri Lisica, the third defendant, D.P., the fourth defendant, T.J., the sixth defendant, R.N. and the seventh defendant, R.P.
1. ... on 24 May 2000 at about 8 a.m. in Zadar, with the aim of taking money transported by a VW Golf vehicle ... of the “Dalmatian Bank” in Zadar, the third defendant D.P. together with two unidentified persons, all masked with caps drawn over their heads and wearing gloves, with a stolen vehicle type VW Golf II with licence plates ZD 597 AG ... blocked the [passage of] the transport vehicle and forced the bank employees U.S., D.Š. and I.M. to exit the vehicle, using automatic guns resembling guns type UZI, ordered them to lie down in the road at gun point, and then entered the transport vehicle of the “Dalmatian Bank” in which seven bags of money were lying and went towards the part of Zadar known as Arbanasi – Karma to the Fontana pier ... , where the first defendant Zlatko Lisica was waiting in a motorboat “Nina”, type Bayliner 4504 A, after which they all boarded the motorboat and drove to the “Golden Heaven” sea port in the Punta area of Bibinje where the second defendant Meri Lisica was waiting in a vehicle type BMW 525 with licence plates ZD 974 CA, owned by the first defendant Zlatko Lisica, into which they transferred the money and drove all together to a nearby forest, save for the first defendant Zlatko Lisica, who went to Bibinje on a motorbike ...
The fourth defendant, T.J.
2. acting as accessory to the criminal offence of robbery [described] under 1., collaborated with the other defendants immediately after the offence had been committed, informing them, via frequent telephone calls to the third defendant D.P., about police activity in the investigation of the criminal offence under 1., which was known to him because he was an officer of the First Police Station of the Zadar Police Department. He thus aided the perpetrators of the criminal offence [at issue], and in particular D.P., to successfully avoid police investigation.
“In connection with the criminal offence encompassed by indictment no. DO-K-36/00, this court heard evidence from [the following] witnesses:
- U.S, D.Š. I.M. and E.S. – employees of the Dalmatian Bank;
- M.B., T.Š., S.J., E.B. and T.I. – pupils who were present in Foša at the crime scene on the morning in question;
- D.K – an eyewitness of some of the events at the pier;
- T.K., M.K., A.Z., D.Š. and M.K. – eyewitnesses of the events at Kolovare, Fontana;
- Đ.Z. and T.R. – eyewitnesses of the route of the motorboat on the morning in question;
- S.F. – an eyewitness of the arrival of the motorboat at Punta, Bibinje;
- N.Š., V.B. and J.L – eyewitnesses of the route followed by the BMW owned by the first defendant;
- A.B. – the chief of the criminal police and police officers E.R. and R.L. – eyewitnesses to some of the events in Foša and Bibinje on the morning in question;
- Z.L., K.L., B.S., A.Š., V.B., A.T. and B.Ć – alibi witnesses; and
- N.P., R.B., V.C. and F. Š.
In connection with the finding of objects after the event, [this court] heard evidence from witnesses E.P. and B.Š.
In connection with the checking of telephone numbers and lists of telephone calls, [this court] heard evidence from witnesses I.M., M.Š. and T.Š.
In connection with the vehicles used ..., [this court] heard evidence from witnesses J.B., A.F. and F.F.
[The court] also heard evidence from police officers K.B., T.O., A.Š., Z.M., Z.B., B.K., and A.Š., and from other witnesses R.B., N.P., V.C., F.Š., J.Š. and D.B.
Written records of the on-site visits and searches were read out as well as certificates of temporary seizures of objects and lists of telephone calls. With the parties’ consent the expert reports were read out ...
The defence sought exclusion of the following allegedly illegally obtained evidence:
- written record of the search of the BMW vehicle of 27 May 2000
The court concludes that the above-mentioned evidence was not obtained in breach of the provisions of the criminal procedure or in violation of the right to respect for private and family life. In this connection the court draws attention to its reasoning in a decision by the trial bench of 23 November 2000 ...
As regards the search of the BMW vehicle of 27 May 2000, which the defence claims to be illegal on account of the police having entered the BMW vehicle and thus having allegedly ‘staged the search’ and ‘possibly planted an item of evidence’, namely the plastic mould of a door handle of a Golf II vehicle, this court finds that it is not unusual that another search of the BMW vehicle was carried out on 27 May 2000 and that it was not a staged search. The evidence given by witnesses B. and O., who carried out the first search of 24 May 2000, together with the fourth defendant T.J., shows that that search had not been detailed. The witnesses stated that they had not opened the glove compartment in the BMW vehicle at all and that the aim of that search had been to find money, arms and evidence of a crime. Since the search was conducted under the supervision of the fourth defendant, it is to be presumed that he ‘neglected details’. Furthermore, even the defence, in submissions of 28 May 2000, stressed that the search of 24 May 2000 had only ‘concerned a superficial examination of the inside of the vehicle, which meant that the search was to be continued’.
In connection with the above request by the defence, the court has heard evidence from the following police officers: Z.B., I.R., A.Š. Z.M., B.K., K.B., T.O. and E.R.
It has been established that all the defendants know each other and communicate regularly. The first and the second defendants are boyfriend and girlfriend and live in the same village. The first defendant is a good and loyal friend of the third defendant, which follows from the evidence given by witnesses B.S. ..., B.M. ... and J.Š.
The second defendant Meri Lisica drove the vehicle owned by the first defendant Zlatko Lisica in the vicinity of the crime scene (evidence given by witnesses B.S., N.Š., J.L. and supported by the expert report on tyre tracks). In the final phase of the event [at issue] she was also spotted by witnesses E.R. and L.
Circumstantial evidence after the crime had been committed comprises the fact that the motorboat was left in Punta, Bibinje, the village where the first and the second defendants live and which is not unknown to the third defendant, who had frequently stayed in the summer house owned by his uncle R.P. situated in Punta ...
Immediately after the event tyre tracks of the same tyre type as those on the BMW vehicle owned by the first defendant Zlatko Lisica were found sixteen metres away from the sea front in Punta, where the motorboat had been abandoned. The first defendant’s vehicle [was also found] in front of the second defendant, Meri Lisica’s, house with wet seats and covers and with the left fog light switched on. Finally, the third defendant and other perpetrators who have not yet been identified, sought shelter in a nearby forest in Bibinje (evidence given by witness Š. and the report on the on-site inspection of 28 May 2000, and in that connection also the report on chemical tests of 29 January 2001).
During the search of a BMW vehicle owned by the first defendant Lisica [carried out] on 27 May 2000 a plastic mould of the lock of the left-hand door of a vehicle type Golf II was found. The same type of Golf vehicle was used in order to block the bank’s vehicle.
The evidence given by witnesses E.R. and R.L. is lawful. They referred to what they had seen on the morning of the events at 8.32 a.m. when they had followed the route of the motorboat. Since the criminal offence at issue was discovered ... immediately after its first phase had been completed and the search for the perpetrators began right after the phone call of witness T.I., the evidence given by witnesses E.R. and R.L. is to be taken as credible in that they said that at 8.32 a.m. they had been on the county road and had seen what they later described ... That they actually saw the vehicle owned by the first defendant, which had been familiar to them, and the second defendant (Meri Lisica) [driving] it correlates with the subsequent events. At the same time a [police] order was issued to find the vehicle owned by the first defendant, which was successfully completed, [the vehicle being] found in about twenty minutes. [Witnesses] R. and L. saw the second defendant M.L. when she arrived at the police station and recognised her as the woman they had seen shortly before at the wheel of the vehicle owned by the first defendant ...
During the proceedings the defence made an objection to the effect that witness E.R. had an interest in the outcome of these proceedings on account of the nature of his job as chief of the Criminal Police of the Zadar Police department ... and that therefore his evidence should not have been taken as credible (the closing arguments of the defence). It is to be noted that the court warned witness E.R. of his duty to tell the truth as well as of the consequences of perjury under the provisions of the Code of Criminal Procedure and that his evidence was assessed [by this court] as any other evidence and the court has concluded that the witness told the truth and did not lie out of the motives imputed to him.
On the morning in question witness D.K. ... was at the sea front in Foša ... He saw a motorboat ...
In the motorboat he saw a driver who was seated, and had a female hairstyle, curly upright hair like the singer Jimmy Hendrix, and was wearing dark glasses as if he wished to hide his face ...
He also stated that he had known the first defendant Zlatko Lisica from before and that they used to go for a drink together, and that the police had shown him his photograph. He commented that the driver of the motorboat had reminded him of the first defendant Zlatko Lisica and that he had considered telling the police that. At the hearing he explained that he had been hesitant as to whether to tell the police or not because testifying in court would be painful for him.
The Court concludes that witness K. knows the first defendant Zlatko Lisica and that even if he had recognised him as the driver of the motorboat, he would not have admitted it, as he had actually said himself. Only at the hearing did he explain his reluctance to tell the police and, later on, the court, that the driver of the motorboat had reminded him of the first defendant Zlatko Lisica, because being a witness was difficult for him. It is true that it is not a pleasant duty to testify before a trial bench at a public hearing. However, there was no such atmosphere at the hearing during the investigation and the witness did not know then whether he would be called to the hearing and whether the first defendant would be indicted at all, and even then he pondered over whether or not he should reveal who the driver of the motorboat had reminded him of, using the words ‘I might have told’. For that reason this court concludes that the driver of the motorboat was the first defendant Zlatko Lisica, whom witness K. described by his hairstyle, because it is true that the first defendant Zlatko Lisica has long curly hair like the singer Jimmy Hendrix.
Other witnesses from Karma – Fontana also stated that the driver of the motorboat had long hair and witness K. said that [he had thought] it was a woman, obviously on account of his shoulder-length hair (as the first defendant actually had and which is visible from the photographs in the case file).
On the morning in question witnesses A.Z., M.K. and T.K. were digging canals ... at Fontana – Karma ...
Witness [A.]Z. stated that ... he had seen a motorboat coming from the direction of Foša ... and three men who jumped into it carrying two bags ... The driver of the motorboat was a tall person, bigger than himself and had longer, untidy dark hair.
On the morning in question witnesses D.Š. and M.K. were in a cafe-bar near Fontana ... [D.]Š. said that ... she had seen a motorboat coming from the direction of Zadar and heading east, towards Bibinje, and that ... the driver of the motorboat had black curly hair and she had thought it was a woman ...
Although witness [A.]Z. stated at the hearing that he was sure that the driver of the motorboat had not been the first defendant Zlatko Lisica, the court does not accept that part of his statement as credible and concludes that it owes to the need not to make enemies. All the witnesses from Karma – Fontana saw that the driver of the motorboat had dark, shoulder-length, curly hair which was sticking out from under a cap and that the driver was a tall person. It is to be noted that the first defendant Zlatko Lisica is 1.91 metres tall.
On the morning in question at about 8 a.m., as she was entering a laundry where she worked, witness N.Š. ... saw a dark-coloured vehicle type Audi, BMW or Mercedes parked near a house in construction belonging to Roko Lisica, situated about a hundred metres from the sea and about forty to fifty metres from where she stood. At about 8.25, when she exited the laundry, she no longer saw the vehicle.
On the morning in question at about 8.30 a.m. witness A.B. ... was driving on a county road near Bibinje ... and saw a black BMW parked on a dirt road on the right ... he saw two or three young men in the vehicle. He continued driving on the county road in the direction of Sukošan and saw in his rear-view mirror that the BMW was driving behind him. When he later looked again the BMW was gone. He concluded that it either turned left into a forest ... or did a U-turn on the county road and returned.
After being informed [about the robbery] by their colleague T.I., witnesses E.R. and R.L [policemen] drove on the county road towards Bibinje, in the direction taken by the motorboat. ... In Bibinje, at about 8.32 a.m. they encountered, coming from the opposite direction, a black BMW vehicle with licence plates ZD 974 CA, known to E.R. as the vehicle owned by the first defendant Lisica. ... A woman between 20 and 25 years of age, with brown hair tied in a pony tail, was sitting at the steering wheel and driving at a speed of about 80 kilometres per hour. R. Immediately ordered that they go to the house of the first defendant Zlatko Lisica to seek both him and the vehicle. He knows that the BMW vehicle had been found parked near the house of the second defendant and that the first and the second defendants had been found at the railway crossing, driving on a motorbike towards Zadar.
When the witnesses returned to the Zadar Police Station between 11 a.m. and noon they saw in the corridor the driver of the BMW, who was in fact the second defendant Meri Lisica, girlfriend of the first defendant Zlatko Lisica.
The above shows that by 8.20 a.m. the perpetrators of the robbery had abandoned the motorboat, jumped into the shallow water ... and taken the money, which must have taken a couple of minutes, which means that by 8.10 a.m. and at the latest at 8.15 a.m. they had already arrived in Punta, Bibinje. For that reason the persons who were sitting in the BMW were wet from the sea, and especially the driver of the BMW who drove it from Punta to Čukovica [a nearby forest] who was entirely wet because the driver’s seat, break and accelerator pedals were wet from the sea, as recorded in the record of the search of that vehicle. ...
On the morning in question at about 7.45 a.m. witness B.S. was returning with his brother from a gas station ... and drove on the road through Punta and then through the village of Bibinje. When passing a house in construction he saw a dark-coloured vehicle and a girl sitting inside and he thought that it was Meri Lisica, but his brother told him that it was not her.
During the on-site inspection carried out on 24 May 2000 at 11.45 a.m. in Punta in Bibinje four car tyre tracks were found and their cast was taken.
The report relating to the search of the BMW vehicle owned by the first defendant carried out on 24 May 2000 at 4.10 p.m. shows that it was found parked in front of the house of the second defendant Meri Lisica, locked and with the right fog light switched on. A wet greyish-black beach towel was thrown over the driver’s seat. The carpet [from the floor] below the accelerator and break pedals was wet as well as a part of the carpet [from the floor] in front of the right-side back seat. The tyres of the vehicle were type ‘Michelin energy’ radial XSE dimensions 195/65 R 15 no. 91 XT2.
The carpets [on the floor] in front of the driver’s, front passenger’s and back right-side seats were taken for the purposes of examination, as it follows from the statements of witnesses B. and the order for examination. The towel, traces of earth found at the break pedal and all four tyres with wheels, taken from the vehicle by an employee of the car-mechanic workshop of the Zadar police Department, J.Š., were also sent for examination.
The cast of the tyre tracks collected in Punta in Bibinje, found sixteen metres from the sea ..., according to the technical expert ... belongs to a tyre type ‘Michelin energy’ dimensions 195/65 R 15, the same as those found on the BMW vehicle owned by the first defendant.
The report relating to the search of the BMW vehicle of 27 May shows that a plastic mould of a lock of an unknown vehicle, a screw-driver, a rasp and other items were found on the floor of the vehicle in front of the front passenger seat ...
According to the report of a chemical expert ... various types of ions characteristic of sea water were found on the carpets from the BMW vehicle ... the towel and break pedal.
On the basis of the expert reports, record of the on-site visit and search the court has concluded as follows: The second defendant Meri Lisica drove over the BMW vehicle sixteen metres from the sea front in Punta at the moment when she expected the motorboat to arrive, which had most likely been communicated to her by telephone. There were three persons in the BMW vehicle, wet from the sea. One of them drove the vehicle towards Čukovica for which reason the break pedal was wet from the sea. This is in conformity with the evidence given by witness B. who saw two or three young men in the BMW vehicle when it was parked on a dirt road [off the county road] ... The towel was put on the driver’s seat by Meri Lisica before she drove the vehicle from Čukovica in order not to get wet. On the way from Punta to Čukovica she obviously sat in the only dry place in the BMW – the back left-side seat, behind the driver, for which reason witness B. did not see her because she is 169,5 metres tall, and the three perpetrators are between 1.78 and 1.93 metres tall ... This is in conformity with the evidence given by witnesses E.R. and R.L. that they saw a woman driving the BMW vehicle from the direction of Sukošan towards Bibinje, which means that they saw the second defendant when she was returning in the vehicle from Čukovica to Bibinje in order to park it in front of her house and meet the first defendant Zlatko Lisica, who came to pick her up on a motorbike.
Witness K.B., who carried out the search of the BMW on 24 May 2000, said that it was possible that during the [first] search he had not seen the plastic [mould of the lock] because the search of 24 May 2000 carried out by him and his colleagues had been superficial.
The photographs [taken during] the search of 24 May 2000 show the same hand tools near the front passenger seat in the BMW as the ones shown in the photographs taken during the search of 27 May 2000 when the carpet from [the floor in front of] the co-driver’s seat had already been removed and sent for examination on 25 May 2000 ... Therefore, it cannot be evidence planted by the police but [it shows that] the search of the vehicle BMW [carried out] on 24 May 2000 was superficial.
A report drawn up by a mechanical expert shows that the inspection of the Golf II vehicle owned by J.B. revealed that a door-handle and lock were missing from its left door. The plastic mould found in the BMW was a part of the door handle of a vehicle type Golf II. Since the plastic mould did not bear an inscription of the year of its manufacture it could not be established with certainty that it had been manufactured in 1989, the year when the vehicle of J.B. [the owner of the Golf in question] had been manufactured.
However, it has been established that a part of the lock of the left door of a vehicle type Golf II was found in the BMW vehicle owned by the first defendant. Exactly the same type of Golf, stolen from J.B. and missing its left-hand door handle ... had been used to block the bank’s delivery vehicle. J.B. said that before his vehicle had been stolen during the night of 22 to 23 May 2000 there had been no damage to the lock of the left door.
Although the mechanical expert could not conclusively establish that the plastic mould found in the BMW belonged to the vehicle owned by J.B., nevertheless the overall evidence leads to the conclusion that it was not a coincidence that a part of a lock of a vehicle type Golf II was found in the BMW vehicle owned by the first defendant and that a vehicle type Golf II had been used to block the bank’s vehicle. In view of all the other evidence, namely the statements of the witnesses I.Š. and E.R., findings of the chemical and materials experts and the lists of telephone numbers, it is to be concluded that the lock mould found in the BMW vehicle owned by the first defendant Lisica belonged to the Golf II vehicle owned by J.B.
Witness J.Š. ... stated during the investigation ... that she had known the third defendant D.P. since July 1998 and ...that on Tuesday 23 May 2000 ... he had warned her not to go into the city on 24 May 2000 because there might be some shooting ...
Seven or eight days later ... they had met again and ... when she had asked if he had something to do with the bank robbery he had told her that their plan had worked out and ... that there had been between two and two and a half million Croatian kuna and that they had thrown some of it into the sea ... The money had been placed in a safe and would not be touched until the situation had calmed down ...
... through a conversation with D. she had learned that he was good friends with Zlatko Lisica ... and his girlfriend Meri Lisica.
At the hearing [before the trial court] she stated that the third defendant D.P. had never told her anything about any robbery ...
As regards the statement she had made during the investigation, she explained that ... she had mentioned the names of the first and the second defendants because the police had put some photographs in front of her and under that impression and out of fear of the police she had mentioned their names as an answer to the question by the investigating judge whether she had known Zlatko and Meri Lisica.
D.P. had never mentioned any motorboat ... or the amount of money stolen from the Dalmatian Bank. She had mentioned that to the investigating judge only because the police had told her so.
The police in Zadar had not been fair to her; they threatened her with losing the flat where she lived, which is the subject of court proceedings before the Zadar Municipal Court. Her father, who had worked in Gospić, had lost his employment when it had become known that she was going to change her deposition. ...
It is true that the Zadar Municipality brought proceedings to evict the family of witness Š. ..., but the first-instance judgment [ordering their eviction] was quashed by the Zadar County Court ... on 28 June 2000 ... It is dubious how much is known to the criminal police about these proceedings, and even more so whether it would be a suitable method of putting pressure on a witness. The fact is that the father of the witness lost his employment long after her deposition [had been made], and it surely could not have served the police to put pressure on her to make the statement she had made in the investigation on 16 June 2000.
The court concludes that the deposition of the witness given in investigation is objective and not a result of police instructions and pressure. Her statement is so lengthy, detailed and personal that it is impossible that it had been told to her by the police and that she then repeated it in such detail before the investigating judge.
“... when all the evidence is put together, [this court] concludes that the force of evidence in this case comes from a large number of small facts and concurrences, each in itself seemingly insignificant, but when they are seen as a whole and in their mutual correlation, they amount to firm proof that the first defendant Zlatko Lisica, the second defendant Meri Lisica and the third defendant D.P. had committed the criminal offence of robbery ... together with at least two unidentified persons ... The third defendant D.P. was one of the three masked men who, carrying arms, forced the employees of the bank to exit the transport vehicle ... after which they drove away at high speed in the same vehicle, carrying with them the bags full of money ... which they transferred to the motorboat in Fontana and then [took in] the BMW vehicle owned by the first defendant to a forest and then [deposited in a] safe ... The first defendant Lisica drove the motorboat, and the second defendant Lisica waited for him, the third defendant and two unidentified persons in Punta. After arriving in Punta, the first defendant Lisica drove to Bibinje, and the second defendant and the others, carrying the money, drove to the forest, [The second defendant] then returned, parked the vehicle in front of her house, and the first defendant picked her up on a motorbike and they drove towards Zadar.”
“As regards the defendants’ arguments stated in their appeal that the impugned judgment is based on unlawfully obtained evidence which they had already sought to be excluded during the trial, it is to be stressed that, as regards the search of the vehicle of the defendant Zlatko Lisica carried out on 27 May 2000, that search was carried out in conformity with the provisions of the Code of Criminal Procedure and in the presence of the defence counsel. It is true that on that occasion they had learned that the vehicle of the defendant Zlatko Lisica had meanwhile been opened by the police in order to collect a fabric sample for the purposes of having it tested for contact traces, [a fact] of which neither defence nor the investigating judge had been informed. However, since neither the samples of seat cover collected from the vehicle of Zlatko Lisica, which was subject to testing for contact traces, nor the [results of] the tests themselves were evidence relied on in the [first-instance] judgment, the above-mentioned omission of the police does not amount to a grave procedural breach within the meaning of Article 367(2) of the Code of Criminal Procedure.
As regards the search of the vehicle of 27 May 2000 and the written record of it, as stated above that search was carried out in accordance with the provisions of the Code of Criminal Procedure. As regards the evidence found and secured during that search, a court is obliged under Article 351(2) of the Code of Criminal Procedure to duly assess each item of evidence separately and in connection with other evidence, and on the basis of such an assessment reach a conclusion as to whether a certain fact has been sufficiently proven. In this regard, when assessing the evidence found during the search [of 27 May 2000], the first-instance court gave valid and convincing reasons, which this court accepts.”
II. RELEVANT DOMESTIC LAW
“(1) If there are grounds for suspicion that a criminal offence subject to public prosecution has been committed, the police shall be bound to take necessary measures aimed at discovering the perpetrator, preventing the perpetrator or accomplice from fleeing or going into hiding, discovering and securing traces of the offences and objects of evidentiary value as well as gathering all information which could be useful for conducting criminal proceedings. The police authorities shall inform the State Attorney about any measures taken within the period of 24 hours from the moment the first measure was taken ...
(2) In order to fulfil the duties referred to in paragraph 1 of this Article, the police authorities may seek information from citizens, apply polygraph tests, voice analysis, carry out the necessary inspection of the means of transportation, passengers and luggage, ... undertake necessary measures regarding the identification of persons and objects ... An official record shall be made on facts and circumstances determined in the course of the inquiry, which might be of interest for the criminal proceedings.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The parties’ submissions
The Court’s assessment
“However, it has been established that a part of the lock of the left door of a vehicle type Golf II was found in the BMW vehicle owned by the first defendant. Exactly the same type of Golf, stolen from J.B. and missing its left-hand door handle ... had been used to block the bank’s delivery vehicle. J.B. said that before his vehicle had been stolen during the night of 22 to 23 May 2000 there had been no damage to the lock of the left door.
Although the mechanical expert could not conclusively establish that the plastic mould found in the BMW belonged to the vehicle owned by J.B., nevertheless the overall evidence leads to the conclusion that it was not a coincidence that a part of the lock of a vehicle type Golf II was found in the BMW vehicle owned by the first defendant and that a vehicle type Golf II had been used to block the bank’s vehicle. In view of all the other evidence, namely the statements of the witnesses I.Š. and E.R., findings of the chemical and materials experts and the lists of telephone numbers, it is to be concluded that the lock mould found in the BMW vehicle owned by the first defendant Lisica belonged to the Golf II vehicle owned by J.B.”
It emerges clearly from this passage that the criminal court, in concluding that the applicants committed the bank robbery in question, relied on the evidence found in the first applicant’s vehicle on 27 May 2000. This shows that the item of evidence in question was relevant and important. What is more, it was the sole direct evidence, connecting the first applicant’s vehicle and the vehicle driven by the robbers. The Court’s task is not to assess whether the applicants’ conviction would have been secured if the contested item had been excluded. Answering the question whether the circumstantial evidence in the specific circumstances of the present case sufficed for the conviction would be the prerogative of the domestic courts. Nor does the Court have to speculate on what the outcome of the trial would have been had that evidence not been used. Its task is to rule on the fairness issue; whether the use of the disputed item of evidence satisfied the requirement of the fairness of the trial.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicants jointly, within three months from 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 at the date of settlement:
(i) EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants;
(ii) EUR 2,000 (two thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicants;
(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 25 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Spielmann is annexed to this judgment.
CONCURRING OPINION OF JUDGE SPIELMANN