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PESA v. CROATIA - 40523/08 [2010] ECHR 488 (8 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/488.html
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[2010] ECHR 488
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FIRST
SECTION
CASE OF PEŠA v. CROATIA
(Application
no. 40523/08)
JUDGMENT
STRASBOURG
8 April 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 Peša 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,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 40523/08) 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 Robert Peša
(“the applicant”), on 25 August 2008.
The
applicant was represented by Ms V. Drenški Lasan, a lawyer
practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š.
StaZnik.
On
26 August 2008 the President of the First Section decided to give
priority treatment to the application in accordance with Rule 41 of
the Rules of Court.
On
25 November 2008 the President of the First Section decided to
communicate to the Government the applicant's complaints concerning
the conditions of and grounds for his detention, the proceedings
concerning its lawfulness, and his right to a fair trial and to be
presumed innocent. 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 1965 and lives in Zagreb.
1. Criminal proceedings against the applicant
(a) Investigation
The
applicant was a vice-president of the Croatian Privatisation Fund
(Hrvatski Fond za privatizaciju – “the CPF”),
a State-run agency which is in charge of privatisation of all
publicly owned property. On 16 June 2007 the applicant was arrested
and remanded in custody on suspicion of accepting bribes. The
applicant was placed in Zagreb Prison, where he stayed until 18 March
2009, when he was released. The case was known in the national press
as the “Maestro” affair.
Following
a request filed on 19 June 2007 by the Anti-Corruption and Prevention
of Organised Crime Office (Ured za suzbijanje korupcije i
organiziranog kriminala – “the Anti-Corruption
Office”), on 20 June 2007 an investigating judge of the Zagreb
County Court opened an investigation in respect of the applicant,
several other employees of the CPF and some other persons. As regards
the applicant, a reasonable suspicion was established that he had
accepted bribes. Several times the investigation was extended to
cover further criminal acts discovered subsequently.
Several
defendants lodged an appeal against the decision ordering the
investigation.
Between
12 and 21 June 2007 the police carried out searches of the offices
the defendants used in the CPF, certain other premises, computer
equipment and some of the vehicles the defendants used, and
confiscated a large number of documents which were eventually
submitted to the prosecuting and investigating authorities.
Between
21 and 26 June 2007 the State Attorney's Office carried out
interviews with two persons.
On
2 July 2007 the Zagreb County Court dismissed the appeals against the
decision ordering the investigation.
Between
4 and 13 July 2007, following warrants issued by the investigation
judge assigned to the case, searches of computer software and
cellular telephones of some of the defendants and other persons were
carried out.
On
5 July 2007 the investigation judge ordered the Zagreb Bank and the
Erste & Steiermärkische Bank to submit data concerning the
defendants' accounts.
On
11 July 2007 the police informed the Anti-Corruption Office, which
acted as prosecuting authority in the case, of the steps taken, such
as informative interviews with two persons and confiscation of
further voluminous documentation relevant to the case. During August
and September 2007 the police collected further documentation
connected to the defendant's alleged criminal activities. On 20
September 2007 the police interviewed another person.
On
3 October 2007 the investigation in respect of the applicant was
extended to charges of abuse of his position.
On
29 November 2007 the police interviewed another witness.
On
30 November 2007 the investigation judge ordered an expert to make a
transcript of 100 video recordings and 219 audio recordings and
numerous telephone calls.
During
the investigation, the investigation judge heard evidence from the
defendants on 18 and 20 June 2007, 2, 3 and 22 October 2007, and 3,
12 and 14 December 2007. He also heard evidence from fifty-four
witnesses on 17, 19, 23 and 24 July 2007, 17, 19 and 21 September
2007, 3 October 2007, 19, 21 and 26 November 2007, 3 and
4 December 2007, and 8, 9 and 11 January 2008.
(b) Criminal trial
On
13 February 2008 the Anti-Corruption Office submitted an indictment
against ten persons, including the applicant. The charges preferred
against the applicant consisted of the criminal offences of accepting
bribes and abuse of his position as a vice-president of the CPF. On
19 February 2008 the indictment was served on the defendants, all but
one of whom lodged objections against it between 21 February and
6 March 2008.
On
30 April 2008 the Zagreb County Court returned the indictment to the
Anti-Corruption Office in order to rectify it within three days. A
rectification of the indictment was lodged with the Zagreb County
Court on 9 May 2008. The indictment became final on 27 May 2008.
On
27 May 2008 a non-trial panel of the Zagreb County Court excluded
certain documents from the case file. On 6 June 2008 one of the
defendants lodged an appeal, which was dismissed by the Supreme Court
on 9 June 2008.
On
24 October 2008 the trial court ordered an expert report on further
audio and video recordings. The report was submitted on 7 November
2008.
A
number of hearings were held between 10 November 2008 and 12 May
2009, when the Zagreb County Court adopted a judgment finding the
applicant guilty of taking bribes and sentenced him to two years'
imprisonment. On 15 May 2009 the judgment was delivered
publicly. The defendants lodged their respective appeals and the
appeal proceedings are currently pending.
2. Conditions of the applicant's detention
From
18 June 2007 to 10 October 2008 the applicant shared a cell measuring
21.10 square metres with six other inmates.
According
to the applicant, the toilet area was not completely secluded and
sometimes in the morning the inmates had to use bottles to urinate
since they could not wait for their turn. The inmates smoked in the
cell although there was no ventilation. All this created an
unbearable foul smell, especially in the summer when temperatures
rose above 30 degrees Celsius. Also, access to natural light was very
poor. Food was served in the cell. However, since there was not
enough space for all the inmates to consume food at the same time,
quarrels over the food were frequent. The cell was furnished with
seven beds, a table and four chairs. The cell was so overcrowded that
there was no space to move about although movement was necessary for
the applicant since he suffered from a vein ailment. Furthermore, he
had problems with his prostate, for which he received no medical
assistance. In April 2008 one other inmate attempted suicide and
another broke the window pane with his hand. There were no
recreational activities. The applicant alleged that these conditions
had caused him mental problems but he had not seen a psychiatrist
although he had requested to do so.
According
to the Government, the cell had four windows, each measuring 86 cm by
87 cm. The applicant had received
three meals a day. He had been seen by a psychiatrist on several
occasions and prescribed sleeping pills, which he had stopped taking
in December 2008. He had also been seen by a surgeon in connection
with the problems he had had with varicose veins and appropriate
medication had been prescribed and administered. The applicant's
request to obtain herbal medicine from outside the prison had been
allowed.
From
10 October to 18 December 2008 the applicant shared another cell of
the same size and in similar conditions with five other inmates.
From
18 December 2008 to 18 March 2008 the applicant was placed in a
single-occupancy cell measuring 9.97 square metres.
According
to the applicant, he had requested to be placed in solitary
confinement in order to be able to prepare his defence, which had
been impossible for him in his previous cells owing to the
overcrowded conditions described above and also in view of the
complexity of the criminal case against him. As an illustration of
the latter, the applicant submitted that the criminal case file
against him consisted of over eight thousand pages and in his
previous cells there had not been enough space even to keep a copy of
all relevant documents from the file, let alone to study them.
During
his entire detention the applicant was allowed to spend two hours a
day in the fresh air.
3. Decisions concerning the applicant's detention
On
17 June 2007 an investigation judge of the Zagreb County Court
remanded the applicant in police custody until 4.45 p.m. on 18 June
2007, pursuant to Article 98 § 1 of the Code of Criminal
Procedure.
On
18 June 2007 an investigation judge of the Zagreb County Court
remanded the applicant in custody until 5.45 p.m. on 19 June 2007,
pursuant to Article 98 § 2 of the Code of Criminal Procedure.
On
20 June 2007 an investigation judge of the Zagreb County Court
remanded the applicant in custody pursuant to Article 102 § 1(2)
and (3) of the Code of Criminal Procedure and stated that his
detention was to be counted from 16 June 2007 at 4.45 p.m. and could
last one month at most. The relevant part of the decision reads as
follows:
“I find that there are grounds for ordering the
suspects' detention under Article 102 § 1(2) of the Code of
Criminal Procedure in view of the fact that a large number of
witnesses due to give evidence during these criminal proceedings have
obtained information from the suspects about the criminal offences.
The first, second, third and fourth suspects are employees of the
Croatian Privatisation Fund, as are the witnesses G.I., the President
of the CPF, F.J., the Registrar of the CPF, B.S., a secretary in the
CPF, M.B., an administrator in the CPF, Z.R. and V.S., also employed
in the CPF, Lj.Z. and J.I., employed in the Sales Department of the
CPF, and other individuals well known to the first to fourth
suspects. Therefore, there is a reasonable fear that the suspects, if
released, might suborn these and other witnesses so as to adjust the
witnesses' evidence with their defence.
...
The second suspect, Robert Peša, showed a high
degree of criminal resolve in undertaking a number of illegal steps
over a long period of time by which he caused substantial material
damage when he, in his capacity as an employee of the CPF, violated
the statutory code of conduct.
...
The above-mentioned acts of the suspects justify the
fear that they, and particularly the first to fourth suspects, who
are still employees of the CPF, in view of their functions and the
influence they exert in their capacity as the vice-presidents of the
CPF, ... if released, would continue their criminal activity...”
On
29 June 2007 the applicant was dismissed from his post by a decision
of the President of the CPF.
The
applicant and the other suspects appealed against the above decision.
On 2 July 2007 a three-judge panel of the Zagreb County Court upheld
the applicant's detention, relying on Article 102 § 1(2) of the
Code of Criminal Procedure and quashed the impugned decision as
regards the ground under Article 102 § 1 (3) of the Code of
Criminal Procedure. In that part the impugned decision was remitted
to the investigation judge for fresh consideration. The relevant part
of the appellate decision reads as follows:
“The appeals of the accused
in respect of the ground for ordering detention under Article 102 §
1(3) of the Code of Criminal Procedure
This panel considers that the ground for detention under
Article 102 § 1(3) of the Code of Criminal Procedure in respect
of the ... second ... accused exists.
The decision ordering an investigation [is based on a]
suspicion that ... the second accused had committed the criminal
offence under Article 347 § 1 of the Criminal Code ...
... There is a well-founded suspicion that the second
accused, as a vice-president of the CPF, that is to say a
high-ranking State official, abused his position by accepting a
proffered gift in order to undertake an official act ... which he was
not supposed to undertake because his primary duty was to protect the
economic interests of the Republic of Croatia. He showed a high
degree of criminal resolve and determination in his unlawful
activities. ... In the opinion of this panel the foregoing amounts to
specific circumstances which justify a genuine fear that ... the
second ... accused, if released, might continue his criminal activity
in committing the same or similar criminal offences. Therefore, the
measure of detention is necessary in respect of ... the second
accused ... also on the ground under Article 102 § 1(3) of the
Code of Criminal Procedure.
Ex officio, in respect of the ground for
detention under Article 102 § 1(2) of the Code of Criminal
Procedure
...
In the operative part of the impugned decision the
detention against ... the second accused ... is ordered on the ground
under Article 102 § 1(3) of the Code of Criminal Procedure,
while the reasoning of the impugned decision ... refers to the ground
under Article 102 § 1(2) of the Code of Criminal Procedure. In
view of this contradiction, it is not possible to examine whether the
appeals were founded or not because it is not clear whether the
investigation judge ordered detention solely on the ground under
Article 102 § 1(3) of the Code of Criminal Procedure or also on
the ground under Article 102 § 1(2) of the same Code.”
In
a decision of 5 July 2007 the investigation judge of the Zagreb
County Court ordered the applicant's detention also on the ground
under Article 102 § 1(2) of the Code of Criminal Procedure. He
reiterated the same reasons as in his previous decision of 20 June
2007.
On
12 July 2007 the same judge extended the applicant's detention until
16 September 2007 on the ground under Article 102 § 1(2) and (3)
of the Code of Criminal Procedure.
On
13 February 2008 an indictment was filed against the applicant and
other defendants before the Zagreb County Court.
On
15 February 2008 a three-judge panel of the Zagreb County Court
extended the applicant's detention on the ground under Article 102
§ 1(4) of the Code of Criminal Procedure. The relevant part
of the decision reads as follows:
“The indictment reveals a well-founded suspicion
that the first to fifth ... defendants committed the criminal
offences listed, which is a general statutory condition under Article
102 § 1 of the Code of Criminal Procedure for ordering
detention.
... the second defendant Robert Peša is indicted
for having committed criminal offences in his capacity as a
vice-president of the Croatian Privatisation Fund ('the CPF') ...
Section 3 of the CPF Act (Official Gazette nos. 84/1992,
70/1993, 76/1993, 19/1994, 52/1994 and 87/1996) provides that the CPF
was founded for the purpose of conducting and completing the process
of privatisation of assets which were temporarily transferred to the
CPF ...
Section 4 of the CPF Act entrusts the CPF with expert
and administrative tasks concerning privatisation ...
The importance of the CPF in the economic life of the
Republic of Croatia, the role of the defendants in the activities of
which they are accused, the fact that they held certain functions in
the CPF and that, according to the indictment, they abused those
functions by committing various wrongful acts and falsely presenting
their acts as legal in order to secure substantial material gain by
which they harmed the reputation of the CPF, which was entrusted,
inter alia, with conducting and completing the process of
privatisation and managing the assets of the Republic of Croatia, and
the distrust, [the defendants] stirred up among the public as regards
the legality of the CPF's activities, amount, in the opinion of this
panel, to particularly grave circumstances which justify the
necessity of extending the detention of ... the second defendant ...
on the grounds under Article 102 § 1(4) of the Code of Criminal
Procedure.”
Both
the applicant and the State Attorney's Office lodged appeals against
the above decision. On 14 March 2008 the Supreme Court dismissed the
applicant's appeal. It allowed the State Attorney's appeal and
ordered the applicant's detention also on the ground under Article
102 § 1(2) of the Code of Criminal Procedure. The relevant
part of the decision read as follows:
“The acts of the defendants show that they were
motivated by personal gain and acted in a corrupt manner contrary to
their duties in the process of privatisation and thus also contrary
to the purposes for which the Fund was established. These activities,
apart from securing substantial material gain to the defendants, also
presented a public image of the deviant nature of privatisation, by
which the defendants harmed the reputation of the basic State
institutions.
In the privatisation process these defendants were
obliged to protect the economic interests of the CPF and the Republic
of Croatia as the owner of the immovable property which is the
subject of the accusations. In the context of the market economy,
their duties included securing fair competition, enabling all bidders
to participate under equal conditions in public tenders and making
proposals to the Government as regards the best offers exclusively in
the interest of the seller, the Croatian Privatisation Fund, that is
to say the Republic of Croatia and the companies which were the
subject of the sale, and all that in order to achieve the purposes
defined in the Privatisation Act. Given the functions of the
defendants in the Croatian Privatisation Fund, it being of
exceptional importance in the process of privatisation, they
significantly damaged the reputation of the Croatian Privatisation
Fund in conducting and completing the privatisation process and
managing the assets of the Republic of Croatia. All this resulted in
arousing public doubts as to the legality and correctness of the
entirety of the activities of the Croatian Privatisation Fund. These
circumstances taken as a whole surpass by far the essential elements
... of the criminal offence in respect of which these proceedings are
conducted. Thus, they amount to particularly grave circumstances in
relation to a criminal offence, justifying the necessity of extending
the detention against ... Robert Peša ... on the grounds under
Article 102 § 1(4) of the Code of Criminal Procedure.
...
... this court considers that ... a legal ground for the
extension of detention in respect of the defendant ... Robert Peša
also exists under Article 102 § 1(2) of the Code of Criminal
Procedure ...
... the witness J.K. has not given his evidence yet.
This witness is to testify about crucial facts concerning the alleged
activities of the defendants who know him ... which justify a fear
that these defendants, if released, might suborn that witness ...”
On
9 April 2008 the applicant lodged a constitutional complaint. On 30
April 2008 the Constitutional Court upheld the part of the Supreme
Court's decision extending the applicant's detention on the ground
under Article 102 § 1(4) of the Code of Criminal Procedure.
However, it quashed the part of the impugned decision as regards the
grounds under Article 102 § 1(2) of the Code of Criminal
Procedure. In that part the case was remitted to the Supreme Court
for fresh consideration.
On
12 May 2008 the Supreme Court dismissed an appeal lodged by the State
Attorney's Office against the Zagreb County Court's decision of
15 February 2008. Thus, the applicant's further detention was
ordered only on the ground under Article 102 § 1(4) of the Code
of Criminal Procedure.
On
12 May 2008 the applicant lodged an application for the detention
order against him to be lifted.
On
14 May 2008 a three-judge panel of the Zagreb County Court extended
the applicant's detention on the ground under Article 102 § 1(4)
of the Code of Criminal Procedure and at the same time dismissed his
application for the detention order against him to be lifted.
On
20 May 2008 the applicant appealed against the above-mentioned
decision. On 9 June 2008 the Supreme Court dismissed the applicant's
appeal. On 24 June 2008 the applicant lodged a constitutional
complaint against the above-mentioned decisions of the County and
Supreme Courts. The applicant also alleged that the conditions of his
detention had been inhuman.
On
10 July 2008 the Zagreb Prison Administration allowed supervised
telephone calls between the applicant and his defence counsel,
Mrs V.D.L.
On
8 August 2008, a three-judge panel of the Zagreb County Court
extended the applicant's detention on the grounds under Article 102
§ 1(4) of the Code of Criminal Procedure, repeating the
same reasoning as in its decision of 15 February 2008. On 11 August
2008 the applicant lodged an appeal in which, inter alia, he
repeated his allegations that the conditions of his detention were
inhuman. On 19 September 2008 the Supreme Court dismissed the
applicant's appeal, without referring to the applicant's allegations
about the conditions of his detention. It
addressed the issue of the legality of the applicant's detention and
analysed in detail the gravity of the charges and the specific
circumstance of the alleged manner in which the offences had been
committed.
The
applicant's constitutional complaint of 24 June 2008 was declared
inadmissible on 25 September 2008 on the ground that the impugned
decisions were no longer in effect since, meanwhile, a fresh decision
on his detention had been adopted on 8 August 2008.
On
29 September 2008 the applicant lodged a constitutional complaint
against the Zagreb County Court's decision of 8 August 2008 and the
Supreme Court's decision of 19 September 2008. Among other things, he
reiterated his complaints about the conditions of his detention.
On
24 October 2008 the Zagreb Prison Administration allowed unsupervised
telephone calls between the applicant and his defence counsel.
Mrs V.D.L.
On
19 November 2008 the Zagreb County Court extended the applicant's
detention. The applicant appealed.
On
18 December 2008 the Constitutional Court declared the applicant's
constitutional complaint of 29 September 2008 inadmissible on the
ground that the impugned decisions were no longer in effect since,
meanwhile, a fresh decision on his detention had been adopted on
29 November 2008.
On
4 February 2009 the Supreme Court upheld the Zagreb County Court's
decision of 19 November 2008. The applicant lodged a constitutional
complaint.
On
17 March 2009 the Constitutional Court accepted the applicant's
complaint and quashed the Supreme Court's decision of 4 February 2009
and the Zagreb County Court's decision of 19 November 2008. In the
operative part of the decision it found a violation of the
applicant's right to human treatment and respect for his dignity. It
also ordered the Government to adjust the facilities at Zagreb Prison
to the needs of detainees within a reasonable time, not exceeding
five years. The relevant part of the decision reads:
“[As to the right to personal liberty]
4. ... the impugned decision of the Supreme
Court found that these rights of the applicant had not been infringed
since the first condition for ordering detention had undoubtedly been
met by the fact that the existence of a reasonable suspicion that the
applicant had committed criminal offences had been established with
certainty, which was a general requirement for ordering detention
under Article 102, paragraph 1, of the C[ode of] C[riminal]
P[rocedure]. The Supreme Court also deemed unfounded [the
applicant's] understanding that detention under Article 102 paragraph
1(4) of the C[ode of] C[riminal] P[rocedure] should be in keeping
with the aim of ensuring the attendance of an accused in criminal
proceedings and was to be ordered only where the same aim could not
be achieved by another measure.
...
8. ...when a person is deprived of liberty
only owing to the reasonable suspicion that he or she has committed a
specific (grave) criminal offence, then the requirement for the
bodies conducting the criminal proceedings to examine with special
diligence any extension of detention on such grounds carries even
greater weight. The persistence of a reasonable suspicion as such no
longer suffices after a certain lapse of time for justifying
detention. According to the case-law of the European Court of Human
Rights, in such cases it is necessary to establish two conditions for
ordering [further detention]: (a) whether the grounds justifying
[deprivation of liberty] are still 'relevant and sufficient'; and (b)
whether the competent authorities displayed 'special diligence' in
the conduct of the proceedings. Only where both conditions are met
can the duration of continued detention be seen as reasonable...
9. ...By disregarding, without a good reason,
the principle of proportionality as to the appropriateness, necessity
and adequacy of the applicant's continued detention on the grounds
under Article 102, paragraph 1(4), of the C[ode of] C[riminal]
P[rocedure] and by limiting its findings to saying that '... the
applicant's placement in detention has not for the time being
jeopardised this principle', the Supreme Court has, in the view of
the Constitutional Court, infringed the applicant's constitutional
right to personal liberty.
...
9.2. ... the Supreme Court correctly noted
that the principle of proportionality required, 'apart from the
duration of detention, an assessment of the relationship between the
gravity and the number of the criminal offences held against the
accused and [the severity of] the penalty he risked on the basis of
the case file in the event of being found guilty'. However, it
overlooked two important factors: (a) the fact that the applicant is
accused of criminal offences punishable by one to ten years'
imprisonment and that ... under Article 109, paragraph 1(4), of the
C[ode of] C[riminal] P[rocedure] his detention, before the adoption
of the first-instance judgment, cannot exceed two years, while
section 28, paragraph 3, of the Anti-corruption Office Act ... allows
for its extension for a further six months; and (b) the fact that the
applicant has so far spent more than a year and eight months in
detention and at this time it is not possible to say with any
certainty how much longer the taking of evidence and the trial before
the first-instance court might last. Paying full regard to the
principle of proportionality, as to its above-mentioned test of
appropriateness, necessity and adequacy, surely requires
consideration of these two factors. Only then can the question
whether in the case at issue the public interest in the applicant's
continued detention during the criminal proceedings against him –
in which the judgment as to his guilt is yet to be given –
outweighs the right to personal liberty guaranteed by the
Constitution and the Convention be correctly assessed.
...
[As to the right not to be ill-treated]
17.1. ... the Constitutional Court notes that
section 74, paragraph 3, of the Enforcement of Prison Sentences Act,
inter alia, defines the standard occupancy space per prisoner
in the following terms:
'Premises in which the prisoners dwell shall be clean,
dry and sufficiently spacious. There shall be a minimum space of 4
square metres and 10 cubic metres per prisoner in each dormitory.'
... overcrowded conditions in Zagreb Prison cannot serve
as acceptable justification for the poor condition of the cell the
applicant occupies. In the light of the principle of presumption of
innocence, the Constitutional Court stresses that the applicant's
right to personal freedom, since he is in pre-trial detention and not
convicted, must not be restricted to a more severe degree than that
of a convicted person.
17.2. In assessing the quality of medical
care, the Constitutional Court accepts the allegations of the Zagreb
Prison Administration that it is at a satisfactory level. However,
the Prison Administration must, taking into account the need to
minimise any damaging consequences of overcrowded conditions,
establish standards in respect of additional medical care for
detainees by employing the services of out-of-prison medical
assistance not dependent on the discretionary assessment of the
Prison Administration.
17.3. Lastly, the Constitutional Court finds
the family visits regime inadequate, in view of the overcrowded
conditions, both as regards the duration of visits and the procedure
applied in respect of family members, which, ..., significantly
diminishes the purpose of such contact ...
...
22. For the reasons set out in points ... 17
[of this decision] the Constitutional Court finds that the general
conditions of the applicant's detention amount to degrading treatment
and thus infringe his constitutional rights guaranteed under Article
23 and Article 25(1) of the Constitution as well as his rights under
Article 3 of the Convention.
The Constitutional Court has not addressed the
possibility of granting the applicant just satisfaction for the above
infringements of his constitutional and Convention rights because in
the Croatian legal system there exists another, effective legal
remedy in that respect (see the Constitutional Court's decision no.
U-III-1437/07 of 23 April 2008.
...”
On
18 March 2009 the applicant was released.
On
29 April 2009 the applicant filed a claim for damages with the State
Attorney's Office, asking that a settlement be reached in the matter.
4. Statements by certain high-ranking State officials
in the media
On
17 June 2007 an article entitled “Bribery in the CPF – 6
arrested” was published in a Sunday edition of the national
daily newspaper Nedjeljni Jutarnji. The article starts as
follows:
“ZAGREB – six arrested, three of whom are
vice-presidents of the Croatian Privatisation Fund, the search for
the seventh person [still on] and more than 800,000 or maybe even 1.3
million euros from the State budget given as bribes to individuals in
the CPF: these are the results of a year-long criminal investigation
...”
In
the article the following statement by the Head of the Police was
quoted:
“'To have a coffee with you and allow you into the
game, into making deals for purchasing CFP property, a sum of 50,000
euros was required in payment,' said Marijan Benko, the Head of the
Police ...”
On
17 June 2007 an article entitled “They took millions of euros”
was published in the national daily newspaper 24 sata. It
quoted the following statement by the State Attorney:
“Just for listening to you, that is to say having
a coffee with you, they asked for 50,000 euros.”
On
18 June 2007 an article entitled “The biggest corruption
scandal” was published in the national daily newspaper 24
sata. It again quoted the following statement by the State
Attorney:
“The State Attorney Mladen Bajić said that
the investigation [showed that] the suspects were ravenously greedy.
Just for initiating any conversation about business they asked for
50,000 euros, for coffee, as they said.”
On
21 June 2007 the following quotation from a statement made by Mr Ivo
Sanader, the Prime Minister, was published in the national daily
newspaper Večernji list:
“'There was organised crime in the Privatisation
Fund,' said Prime Minister Sanader. 'The three vice-presidents did
not necessarily participate in each project of the Fund but it is
probable that each of them acted together with a number of other
individuals and in that sense it is possible to talk about organised
crime.'”
On
22 June 2007 an article entitled “President Mesić: The
three tenors will be supplied with an orchestra” was published
in the national daily newspaper Jutarnji list. The relevant
part of the article reads:
“ZAGREB – The investigation of corruption
will be extended to other institutions; it is not enough to deal with
the Croatian Privatisation Fund only. It is the centre of corruption,
but extends further like an octopus. The Maestro action is only one
of the leads to follow, and there will be more. The melody is known
and is now practised and the parts are allocated. The three tenors
will be supplied with an orchestra, said President Stjepan Mesić.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant articles of the Croatian Constitution (Ustav Republike
Hrvatske) provide:
Article 23
“No one shall be subjected to any form of
ill-treatment ...”
Article 25
“All detainees and convicted persons shall be
treated in a human manner and with respect for their dignity.
...”
Article 28
“Everyone shall be presumed innocent and nobody
shall be held guilty of a criminal offence until his or her guilt has
been established in a final judgment of a court of 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 about his or her rights and obligations, or about 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 3
“Everyone shall be presumed innocent and nobody
shall be held guilty of a criminal offence until his or her guilt has
been established in a final judgment of a court of law.”
Preventive Measures
Article 90
“(1) Where the conditions for ordering detention
under Article 102 of this Code have been fulfilled, and where the
same purpose may be achieved by other preventive measures under this
Article, the court shall order that one or more preventive measures
are to be applied ...
(2) Preventive measures are:
1) prohibition on leaving one's place of residence;
2) prohibition on being in a certain place or area;
3) obligation on the defendant to report periodically to
a certain person or a State body;
4) prohibition on access to a certain person or on
establishing or maintaining contact with a certain person;
5) prohibition on undertaking a certain business
activity;
6) temporary seizure of a passport or other document
necessary for crossing the State border;
7) temporary seizure of a driving licence.
...”
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 order 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 the detention order shall immediately be lifted.”
9. Grounds for Ordering Detention
Article 102
“(1) Where a reasonable suspicion exists that a
person has committed a criminal offence, he or she may be placed in
detention if:
...
(2) there is a reasonable suspicion that the person
concerned may destroy, hide, alter or forge evidence or traces
important for the criminal proceedings or may impede the proceedings
by suborning witnesses, accomplices or accessories after the offence.
(3) special circumstances justify the fear that the
person concerned will repeat a criminal offence ...
(4) 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 especially grave circumstances of the offence.”
Article 106
“(1) Detention ordered by an investigation judge
... shall not exceed one month ...
(2) During the investigation the investigation 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 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 ...”
Grounds for appeal against a [first-instance]
judgment
Article 366
“An appeal against a [first-instance] judgment may
be lodged on account of:
(1) grave procedural errors;
(2) infringements of the Criminal Code;
(3) an incorrect or insufficient assessment of the
facts;
(4) decisions on criminal sanctions, forfeiture, costs
of proceedings and pecuniary claims and orders to publish a judgment
in the media.”
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
relevant provisions of the Enforcement of Prison Sentences Act (Zakon
o izvršavanju kazne zatvora, Official Gazette
nos. 128/1999 and 190/2003) read as follows:
JUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE
PRISON ADMINISTRATION
Section 17
“(1) An inmate may lodge a request for
judicial protection against any acts or decisions unlawfully denying
him, or limiting him in, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be
decided by the judge responsible for the execution of sentences.”
Section 74
“...
Premises in which the prisoners dwell shall be clean,
dry and sufficiently spacious. There shall be a minimum space of 4
square metres and 10 cubic metres per prisoner in each dormitory.
...”
In
decision no. U-III-1437/2007 of 23 April 2008 the Constitutional
Court found that the conditions of detention of a prisoner, P.M., in
Lepoglava State Prison amounted to inhuman treatment. It also
addressed the question of P.M.'s claim for just satisfaction. The
relevant parts of the decision read:
“In particular, the Constitutional Court finds
unacceptable the [lower] courts' opinion that in this case a claim
for non-pecuniary damage cannot be awarded under section 200 of the
Civil Obligations Act on the ground that such a compensation claim is
unfounded in law.
...
Section 1046 of the Civil Obligations Act defines
non-pecuniary damage as infringement of the right to respect for
one's personal integrity. In other words, every infringement with
one's right to personal integrity amounts to non-pecuniary damage.
Section 19(2) of the Civil Obligations Act defines the
right to personal integrity for the purposes of that Act as: the
right to life, physical and mental health, reputation, honour,
respect for one's dignity and name, privacy of personal and family
life, freedom and other aspects.
... it is to be concluded that in this case there has
been a violation of human, constitutional and personal values because
the applicant was in prison conditions which were incompatible with
the standards prescribed by the Enforcement of Prison Sentences Act
and also with the legal standards under Article 25 § 1 of the
Constitution. For that reason the courts are obliged to award
compensation for the infringement of the applicant's dignity.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 AND ARTICLE 5 § 3
OF THE CONVENTION
The
applicant complained under Article 3 of the Convention of the
conditions of his detention. He further complained under Article 5 §
3 of the duration of his detention and submitted that the reasons
relied on by the national courts for ordering and extending his
detention had been insufficient and inadequate throughout his
detention. Article 3 and Article 5 § 3 read:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 5 § 3
“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. Admissibility
The
Government argued that, following the decision of the Constitutional
Court of 17 March 2009, the applicant could no longer claim to be a
victim of the violations alleged under Article 3 and Article 5 §
3 of the Convention because the Constitutional Court had found a
violation of those provisions. Furthermore, as regards the
applicant's complaint under Article 3 of the Convention (conditions
of his detention), the national law had subsequently offered the
applicant the possibility of seeking compensation in civil
proceedings against the State.
The
applicant disputed these arguments.
1. General principles
The
Court considers that the issues of the applicant's victim status and
the exhaustion of domestic remedies are intrinsically linked in the
circumstances of the present case and should therefore be addressed
together.
As
to the applicant's victim status, the Court reiterates that under
Article 34 of the Convention it “may receive applications from
any person ... claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or
the Protocols thereto”. It falls first to the national
authorities to redress any alleged violation of the Convention. In
this regard, the question whether an applicant can claim to be a
victim of the violation alleged is relevant at all stages of the
proceedings under the Convention (see Burdov v. Russia,
no. 59498/00, § 30, ECHR 2002-III, and Trepashkin
v. Russia, no. 36898/03, § 67, 19 July 2007).
The
Court also reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status
as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Amuur v. France,
25 June 1996, § 36, Reports of Judgments and Decisions
1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44,
ECHR 1999-VI). Such acknowledgment and redress are usually the result
of the process of exhaustion of domestic remedies (see Koç
and Tambaş v. Turkey (dec.), no. 46947/99, 24 February
2005).
The
Court further reiterates that the machinery for the protection of
fundamental rights established by the Convention is subsidiary to the
national systems safeguarding human rights. The Convention does not
lay down for the Contracting States any given manner for ensuring
within their internal law the effective implementation of the
Convention. The choice as to the most appropriate means of achieving
this is in principle a matter for the domestic authorities, who are
in continuous contact with the vital forces of their countries and
are better placed to assess the possibilities and resources afforded
by their respective domestic legal systems (see Swedish Engine
Drivers' Union v. Sweden, 6 February 1976, § 50, Series
A no. 20; Chapman v. the United Kingdom [GC],
no. 27238/95, § 91, ECHR 2001-I; and Sisojeva and
Others v. Latvia [GC], no. 60654/00, § 90, ECHR
2007 II).
As
to the exhaustion of domestic remedies, the Court reiterates that, in
accordance with Article 35 § 1 of the Convention, it may only
deal with an issue after all domestic remedies have been exhausted.
The purpose of Article 35 is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged
against them before those allegations are submitted to the Court
(see, for example, Hentrich v. France, 22 September 1994,
§ 33, Series A no. 296-A, and Remli v. France,
23 April 1996, § 33, Reports 1996-II). Thus, the
complaint submitted to the Court must first have been made to the
appropriate national courts, at least in substance, in accordance
with the formal requirements of domestic law and within the
prescribed time-limits. To hold otherwise would mean to duplicate the
domestic process with proceedings before the Court, which would be
hardly compatible with the subsidiary character of the Convention
(see Gavril Yosifov v. Bulgaria, no. 74012/01, § 42, 6
November 2008). Nevertheless, the obligation to exhaust domestic
remedies requires only that an applicant make normal use of remedies
which are effective, sufficient and accessible in respect of his
Convention grievances (see Balogh v. Hungary,
no. 47940/99, § 30, 20 July 2004, and John Sammut and
Visa Investments Limited v. Malta (dec.), no. 27023/03, 28
June 2005).
2. Application of these principles to the present case
(a) Article 3
The
Court notes that in its decision of 17 March 2009 the Constitutional
Court expressly found a violation of the Article 3 of the Convention
as regards the conditions of the applicant's detention. It held that
the general conditions of his detention amounted to degrading
treatment. The Constitutional Court's findings covered the entire
period of the applicant's detention.
In
the Court's view these findings of the Constitutional Court
undoubtedly represent a decision in the applicant's favour by which
the relevant national authorities expressly acknowledged a breach of
his right not to be subjected to treatment contrary to Article 3 of
the Convention.
The
Court considers that redress in the applicant's circumstances has two
aspects: one is removal of the applicant from the conditions of
detention that ran counter to Article 3 of the Convention and the
other is the possible award of damages for the time he was detained
in such conditions. In this connection, the Court notes that the
applicant was released immediately following the Constitutional
Court's decision. Furthermore, the Court notes that the right to
respect for one's “personal integrity” is protected under
section 19 of the Civil Obligations Act and that any infringements of
such a right are recognised as grounds for awarding damages under
section 1046 of the same Act in respect of non-pecuniary damage. The
Court also takes note of a decision by the Constitutional Court (no.
U-III-1437/2007 of 23 April 2008 – see paragraph 73 above),
submitted by the Government, in which the Constitutional Court
expressly stated that where it found that an applicant had been
detained in unacceptable conditions, there was a right to obtain
damages from the State. This approach by the Constitutional Court
clearly indicates that a person in the applicant's position has a
recognised right under domestic law to seek compensation from the
State.
The
Court notes that the applicant has indeed sought damages from the
State and that the related proceedings are at present pending before
the competent civil court. While the institution of civil proceedings
for damages in itself cannot be regarded as an effective remedy in
respect of adverse prison conditions, such proceedings in combination
with the decision of the Constitutional Court ordering the
applicant's immediate release, in the circumstances of the present
case, do satisfy the requirements of effectiveness (see, mutatis
mutandis, Štitić v. Croatia (dec.), no.
9660/03, 9 November 2006).
Therefore,
as the proceedings concerning the applicant's claim for damages are
still pending, this part of the application is premature. It follows
that it must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
(b) Article 5 § 3
The
Court notes firstly that the applicant complained that the reasons
relied on by the national courts for ordering and extending his
detention had been insufficient and inadequate throughout his
detention. As to the decision of the Constitutional Court of 17 March
2009, it quashed the Supreme Court's decision of 4 February 2009 on
the grounds that it failed to establish two conditions for ordering
further detention: (a) whether the grounds justifying deprivation of
liberty were still “relevant and sufficient”; and (b)
whether the competent authorities displayed “special diligence”
in the conduct of the proceedings. In the opinion of the
Constitutional Court, “only where both conditions are met can
the duration of continued detention be seen as reasonable.”
Prior
to the Constitutional Court's decision of 17 March 2009, in the
proceedings before the national courts, the applicant lodged several
constitutional complaints which were either dismissed or declared
inadmissible. In its decision of 17 March 2009 the Constitutional
Court made no reference to the applicant's overall detention. It only
quashed the Supreme Court's decision of 4 February 2009, without any
findings as to whether there had been a violation of the applicant's
rights under Article 5 § 3 of the Convention. Of even
greater importance for the issue of the applicant's victim status is
that he has no right under the national law to claim any compensation
in connection with his complaint about the duration of his detention.
Therefore, in the circumstances of the present case it cannot be said
that the applicant has lost his victim status as to his complaint
under Article 5 § 3 of the Convention.
It
follows that the Government's objection must be dismissed.
The
Court further considers that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further considers that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' arguments
The
applicant argued that the grounds for ordering and extending his
detention had been insufficient, in particular the grounds under
Article 102 § 1(4) of the Code of Criminal Procedure.
The
Government argued that the reasons relied on by the national courts
for ordering and extending the applicant's detention – those
being, prior to his indictment, the danger that he might suborn
witnesses, the danger that he might reoffend and the gravity of the
charges, and, after the indictment, the gravity of the charges only –
had been relevant and sufficient.
The
Government also argued that, owing to the gravity of the charges
against the applicant, his release could have caused public disorder.
They explained that the applicant had been one of the vice-presidents
of the CPF, an institution which had been in charge of the
privatisation process in Croatia and had had a significant role in
the economic life of the county. As such, the applicant had enjoyed
public trust, which he had harmed by abusing his position. At the
same time several high-level managers of the CPF had been arrested on
suspicion of corruption, which had added to the gravity of the
charges.
They
submitted further that the criminal proceedings against the applicant
had been very complex since they had concerned a number of
allegations of criminal activity on the part of ten defendants.
2. The Court's assessment
The
Court reiterates that under the second limb of Article 5 § 3, a
person charged with an offence must always be released pending trial
unless the State can show that there are “relevant and
sufficient” reasons to justify his continuing detention (see
Yağcı and Sargın v. Turkey, 8 June 1995, § 52,
Series A no. 319-A). Moreover, the domestic courts “must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions on the applications for release” (see Letellier
v. France, 26 June 1991, § 35, Series A no. 207).
The
Court further reiterates that the persistence of a reasonable
suspicion that the person arrested has committed an offence is a
condition sine qua non for the lawfulness of the continued
detention, but after a certain lapse of time it no longer suffices. A
court decision extending detention requires a more solid basis to
show not only that there was genuinely “a reasonable
suspicion”, but also that there were other serious
public-interest considerations which, notwithstanding the presumption
of innocence, outweighed the right to liberty (see, among other
authorities, I.A. v. France, 23 September 1998, §
102, Reports 1998-VII), given that the primary purpose of the
second limb of Article 5 § 3 is to require the provisional
release of the accused pending trial (see Garycki v. Poland,
no. 14348/02, § 39, 6 February 2007, and McKay v. the
United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X).
The
Court observes that the period of the applicant's detention began on
16 June 2007, when he was first arrested, and ended on 18 March 2009,
when he was released. It thus lasted one year, nine months and two
days.
In
their decisions extending the applicant's detention the authorities
relied principally on three grounds, namely the serious nature of the
offence with which he had been charged, the danger that he might
suborn witnesses and the danger that, if at large, he might reoffend.
(a) The danger of reoffending
The
Court considers that the seriousness of a charge may lead the
judicial authorities to place and leave a suspect in detention on
remand in order to prevent any attempts to commit further offences.
It is, however, necessary, among other conditions, for the danger to
be a plausible one and the measure appropriate, in the light of the
circumstances of the case and in particular the past history and the
personality of the person concerned (see Clooth v. Belgium, 12
December 1991, § 40, Series A no. 225).
The
Court notes that the applicant had no previous criminal record and
that no expert assessment of the likelihood of his reoffending was
carried out. Furthermore, as he was charged with committing criminal
offences closely related to his position as one of the
vice-presidents of the CPF, after he had been dismissed from that
position on 29 June 2007, no danger of his reoffending persisted.
The
ground based on the risk of reoffending did not therefore in itself
justify the continuation of the applicant's detention after 29 June
2007.
(b) The danger of suborning witnesses
The
Court acknowledges that the applicant's case was a very complicated
one, necessitating difficult inquiries. Some of the witnesses were
employees of the CPF, in which the applicant had held a high-ranking
position. The authorities' belief that he should consequently be kept
in detention in order to prevent him from being able to suborn those
witnesses is easy to understand, at least at the outset.
In
the long term, however, the requirements of the investigation do not
suffice to justify the detention of a suspect: in the normal course
of events the risks alleged diminish with the passing of time as the
inquiries are conducted, statements taken and verifications carried
out (see Clooth, cited above, § 43).
The
Court notes that by 13 February 2008, when the indictment was lodged,
all witnesses who were employees of the CPF had already given their
evidence before the investigation judge. Therefore, the danger that
the applicant might suborn witnesses no longer persisted after that
date. It must be inferred from this that after 13 February 2008, the
date on which the applicant was indicted, the risk in question
disappeared and could no longer serve as justification for his
detention.
(c) Protection of public order
The
Court notes that the Government also relied on the protection of
public order as a ground for the applicant's detention, although it
was not expressly mentioned by the national courts. The latter did
rely, however, on the harm which the applicant's alleged conduct had
caused to public trust. In any event, the Court accepts that, by
reason of their particular gravity and the public reaction to them,
certain offences may give rise to public disquiet capable of
justifying pre-trial detention, at least for a certain time.
In
exceptional circumstances – and subject, obviously, to there
being sufficient evidence – this factor may therefore be taken
into account for the purposes of the Convention. 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 prejudice public order. In addition, detention will continue
to be legitimate only if public order actually remains threatened;
its continuation cannot be used to anticipate a custodial sentence
(see Kemmache v. France, 27 November 1991, § 52, Series A
no. 218, and Tomasi v. France, 27 August 1992, § 91,
Series A no. 241 A).
The
Court firstly notes that Croatian law does not recognise the notion
of prejudice to public order caused by an offence as a ground for
detention. Furthermore, the national courts did not explain why
continued detention of the applicant was necessary in order to
prevent public disquiet and did not examine whether the applicant
presented a danger for public safety. Therefore, the arguments of the
Government referring to the protection of public order cannot be seen
as sufficient for ordering or extending the applicant's detention.
(d) Seriousness of the alleged offences
The Court has repeatedly held that although the
severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or reoffending, the need to
continue the deprivation of liberty cannot be assessed from a purely
abstract point of view, taking into consideration only the gravity of
the offence. Nor can continuation of the detention be used to
anticipate a custodial sentence (see Belevitskiy v. Russia,
no. 72967/01, § 101, 1 March 2007; Panchenko v.
Russia, no. 45100/98, § 102, 8 February 2005;
Khudoyorov v. Russia, no. 6847/02, § 180,
ECHR 2005 X; and Ilijkov v. Bulgaria, no. 33977/96,
§ 81, 26 July 2001).
In
the present case, from 15 February 2008, immediately after the trial
had commenced, to 18 March 2009, the domestic courts extended the
applicant's detention solely on the ground of the particularly grave
circumstances under which he had allegedly committed the offences at
issue. This period lasted one year, one month and three days.
As
to the nature of the offences held against the applicant in the
present case, the Court notes that he was charged with committing
offences related to accepting bribes in his capacity as one of the
vice-presidents of the CPF. While the Court accepts that the charges
against the applicant were serious and that the national courts found
that the alleged offences entailed a high degree of criminal resolve
in undertaking a number of illegal steps over a long period, it notes
that the explanations given by the national courts in this connection
were not sufficient and relevant for extending the applicant's
detention after 15 February 2008. No elements adduced by the national
courts were capable of showing that the applicant presented a
continued danger or that his release would in any manner harm the
conduct of the criminal proceedings against him.
The Court further emphasises that, when deciding
whether a person is to be released or detained, the authorities are
obliged under Article 5 § 3 to consider alternative
means of guaranteeing his appearance at the trial. Indeed, that
Article lays down not only the right to “trial within a
reasonable time or release pending trial” but also provides
that “release may be conditioned by guarantees to appear for
trial” (see Jabłoński
v. Poland,
no. 33492/96, § 83, 21 December 2000). In the
present case, the Court notes that there is no express indication
that during the entire period of the applicant's detention the
authorities envisaged any other guarantees designed to secure his
appearance at the trial. Nor did they give any consideration to the
possibility of ensuring his presence at the trial by imposing on him,
under Article 90 of the Code of Criminal Procedure, other “preventive
measures” expressly intended to ensure the proper conduct of
criminal proceedings.
The Court notes that the applicant was not a habitual
offender and that he was charged with financial offences and not with
crimes containing a violent element. The Court finds, therefore, that
by relying solely on the gravity of the charges, the authorities
prolonged the applicant's detention in the period from 15 February
2008 to 18 March 2009 on grounds which cannot be regarded as
“sufficient”. In those circumstances it is not necessary
to examine whether the proceedings were conducted with “special
diligence”.
There has accordingly been a violation of Article 5 §
3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The
applicant complained that the proceedings concerning the lawfulness
of his detention had not been in conformity with the guarantees under
Article 5 § 4 of the Convention, which reads as follows:
“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.”
A. Admissibility
The
Court notes that this complaint 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, when reviewing the decision of the Zagreb
County Court of 8 August 2008 which had extended his detention, the
Supreme Court, in its decision of 19 September 2008, had failed to
address his allegations that the conditions of his detention had been
inhuman. He further argued that in the same proceedings the
Constitutional Court had declared his constitutional complaint of 29
September 2008 inadmissible solely on the ground that meanwhile a
fresh decision extending his detention had been adopted. The same had
happened with his constitutional complaint of 24 June 2008. In
the applicant's view, such a practice ran counter to the requirements
of Article 5 § 4 of the Convention.
The
Government argued that the applicant's detention had been frequently
reviewed by the competent courts of their own motion and that the
applicant also had the possibility under domestic law of applying for
his detention order to be lifted. The applicant had always been able
to lodge an appeal with the Supreme Court against each decision
extending 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, including the
Supreme Court, 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, detention
during an investigation must be reviewed by the investigation judge
after one month and then again after two months and three months
(Article 107 of the Code of Criminal Procedure). After the 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
domestic courts on many occasions.
The
applicant was able to lodge requests for his release. He was able to
lodge an appeal with the Supreme Court against each decision of the
Zagreb County Court ordering, and later on extending, his detention.
The Court finds that the national
courts periodically and automatically reviewed the applicant's
detention and gave reasons for its extension. Each time the applicant
was able to lodge an appeal with the Supreme Court and a
constitutional complaint. However, the Court will address the
question of the compliance of the Supreme Court's decision of 19
September 2008 and the Constitutional Court's decisions of 25
September and 18 December 2008 with the requirements of Article
5 § 4 of the Convention.
(i) The Supreme Court's decision of 19
September 2008
The
Court notes that in his appeal to the Supreme Court of 11 August
2008, the applicant challenged the lawfulness of his detention and
also complained that the conditions of his detention were inhuman.
The Supreme Court, in dismissing the appeal on 19 September 2008, did
not address these allegations. In this connection the Court
reiterates that Article 5 § 4 of the Convention entitles
arrested or detained persons to a review bearing upon the procedural
and substantive conditions which are essential for the “lawfulness”,
in Convention terms, of their deprivation of liberty. This means that
the competent court has to examine not only compliance with the
procedural requirements of domestic law but also the reasonableness
of the suspicion underpinning the arrest, and the legitimacy of the
purpose pursued by the arrest and the ensuing detention (see
Butkevičius v. Lithuania,
no. 48297/99, § 43, ECHR 2002-II).
The
Court notes that in the proceedings culminating in the Supreme
Court's decision of 19 September 2008, the Zagreb County Court,
acting as the court of first instance, extended the applicant's
detention on 8 August 2008. It cited the relevant procedural
provisions setting out grounds for extending detention and gave
reasons justifying the applicant's further detention, these being the
“particularly grave circumstances” in which he had
allegedly committed the criminal offence held against him, which
circumstances were described in detail (see paragraph 47, referring
to paragraph 39, above).
As
regards the Supreme Court's decision of 19 September 2008, it
confirmed the findings of the impugned decision of the Zagreb County
Court and once again set out in detail the specific circumstances in
which the offences had allegedly been committed.
In
the Court's view, the Zagreb County Court and the Supreme Court both
satisfied the requirements set out in the Court's case-law since they
addressed the procedural and substantive conditions which were
essential for the “lawfulness” of the applicant's further
detention in Convention terms.
In
view of the above considerations, the Court finds that there has been
no violation of Article 5 § 4 of the Convention as regards the
Supreme Court's decision of 19 September 2008.
(ii) The Constitutional Court's decisions
of 25 September and 18 December 2008
The
Court notes further that the national system also allows for a
constitutional complaint against each appeal decision of the Supreme
Court 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 complaints of 24 June and 29
September 2008 were declared inadmissible on such grounds.
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; see also 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 Supreme Court of 9 June 2008, the Constitutional
Court did not decide on the applicant's complaint until 25 September
2008, only to declare the complaint inadmissible because a fresh
decision had meanwhile been adopted. The same situation was repeated
with the applicant's constitutional complaint of 29 September 2008,
declared inadmissible by the Constitutional Court on 18 December 2008
(see paragraphs 48 and 52). The
Court finds that the applicant's constitutional complaints of 24 June
and 29 September 2008 were 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 complaints of 24 June and
29 September 2008 made it impossible to ensure the proper and
meaningful functioning of the system for the review of his detention,
as provided for under the national law. By declaring the applicant's
constitutional complaints inadmissible simply because fresh decisions
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”
(see paragraph 92 above). 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.
III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
The
applicant further complained that the criminal proceedings against
him had been unfair in that the courts had not been impartial, he had
not been afforded adequate time and facilities to prepare his defence
and he had not been able to defend himself through legal assistance
of his own choosing, in particular in view of the poor conditions of
his detention, which had prevented him from preparing his defence. He
also complained that the statements of some high-ranking State
officials to the media ran counter to the presumption of innocence.
He
relied on Article 6 §§ 1, 2 and 3(b) and (c) of the
Convention, the relevant parts of which read:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require ...”
A. Admissibility
1. The parties' arguments
The
Government argued that the applicant's complaints under Article 6
were premature because the criminal proceedings against him were
still pending and he would be able to raise the same complaints by
using various remedies envisaged under the relevant domestic law,
such as an appeal against the first-instance judgment and a
constitutional complaint. All the rights the applicant was invoking
before the Court were guaranteed in various provisions of the Code of
Criminal Procedure and the Constitution, and besides, in Croatia the
Convention was directly applicable.
The
applicant agreed that he was able to raise the same complaints in his
appeal, save for the complaint under Article 6 § 2 of the
Convention.
2. The Court's assessment
(a) Article 6 §§ 1 and 3 (b) and
(c) of the Convention
The
Court notes that the criminal proceedings against the applicant are
at present pending before the Supreme Court as the appeal court in
the matter. The applicant is able to put forward his complaints under
Article 6 §§ 1 and 3(b) and (c) of the Convention both
in his appeal and, eventually, in his constitutional complaint. For
these reasons, and in view of the principle of the subsidiary nature
of the Convention mechanism, the Court agrees with the Government
that this part of the application is premature since the criminal
proceedings against the applicant are still pending.
It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
(b) Article 6 § 2 of the Convention
The
Court notes that the impugned statements were made by certain
high-ranking State officials and published in newspapers. Contrary to
the Government's assertion, these statements cannot serve as grounds
for an appeal or for any other remedy in the context of the criminal
proceedings against the applicant since, under the relevant domestic
laws, such grounds consist of errors of fact and law as well as
procedural errors. The impugned statements do not fall within any of
these categories. Furthermore, the remedies available to the
applicant in the context of the criminal proceedings against him may
be used in respect of judgments and other decisions adopted in those
proceedings and not in respect of statements made by public officials
in the media.
As
regards the possibility of lodging a constitutional complaint on
account of the alleged violation of the applicant's right to be
presumed innocent, the Court notes that, although such a right is
guaranteed under the Constitution, a constitutional complaint may be
lodged only against a decision issued by a competent authority.
However, as regards the impugned statements, no decision has been
adopted and therefore no constitutional complaint lies against them.
It
follows that the Government's objection as to the exhaustion of
domestic remedies must be dismissed.
The
Court further considers that this complaint 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 argued that the impugned statements by four high-ranking
State officials, published in the days immediately following his
arrest, amounted to the pronouncement of his guilt before he had been
found guilty by a court of law, in violation of his right to be
presumed innocent.
The
Government stressed the importance of the CFP in the economic and
public life of Croatia, which justified the public interest in being
informed of its activities. As regards the impugned statements, the
Government emphasised that the names of the suspects had not been
mentioned and that at the time when the articles in question had been
published, it had still not been revealed which of the four CFP
vice-presidents had been arrested. The impugned statements did not
indicate that the State officials in question had mentioned any
criminal activities or given their opinion on the guilt of the
applicant in respect of any criminal offence.
2. The Court's assessment
(a) General principles
The
Court reiterates that the presumption of innocence enshrined in
paragraph 2 of Article 6 is one of the elements of the fair criminal
trial that is required by paragraph 1 (see Deweer v. Belgium,
27 February 1980, Series A no. 35, § 56, and Allenet de
Ribemont v. France, 10 February 1995, Series A no. 308,
§ 35). Article 6 § 2, in its relevant aspect, is aimed
at preventing the undermining of a fair criminal trial by prejudicial
statements made in close connection with those proceedings (see
Khuzhin and Others v. Russia, no. 13470/02, § 93, 23
October 2008, and Matijašević v. Serbia, no.
23037/04, § 45, ECHR 2006 X). It prohibits the premature
expression by the tribunal itself of the opinion that the person
“charged with a criminal offence” is guilty before he has
been so proved according to law (see Minelli v. Switzerland,
25 March 1983, Series A no. 62) but also covers statements made by
other public officials about pending criminal investigations which
encourage the public to believe the suspect guilty and prejudge the
assessment of the facts by the competent judicial authority (see
Allenet de Ribemont, cited above, § 41; Daktaras v.
Lithuania, no. 42095/98, §§ 41-43, ECHR
2000-X; and Butkevičius v. Lithuania, no. 48297/99,
§ 49, ECHR 2002-II).
The
freedom of expression, guaranteed by Article 10 of the Convention,
includes the freedom to receive and impart information. Article 6
§ 2 cannot therefore prevent the authorities from informing the
public about criminal investigations in progress, but it requires
that they do so with all the discretion and circumspection necessary
if the presumption of innocence is to be respected (see Allenet de
Ribemont, cited above, § 38, and Karakaş and
Yeşilırmak v. Turkey, no. 43925/985, § 50, 28 June
2005).
The
Court has considered that in a democratic society it is inevitable
that information is imparted when a serious charge of misconduct in
office is brought (see Arrigo and Vella v. Malta (dec.), no.
6569/04, 10 May 2005). It has acknowledged that in cases where
an applicant was an important political figure at the time of the
alleged offence, the highest State officials, including the
Prosecutor General, were required to keep the public informed of the
alleged offence and the ensuing criminal proceedings. However, this
circumstance could not justify all possible choices of words by the
officials in their interviews with the press (see Butkevičius,
cited above, § 50).
141. A
fundamental distinction must be made between a statement that someone
is merely suspected of having committed a crime and a clear
declaration, in the absence of a final conviction, that an individual
has committed the crime in question. The Court has consistently
emphasised the importance of the choice of words by public officials
in their statements before a person has been tried and found guilty
of a particular criminal offence (see Daktaras,
cited above, § 41; Böhmer
v. Germany,
no. 37568/97, §§ 54 and 56, 3 October 2002; and
Nešťák
v. Slovakia,
no. 65559/01, §§ 88 and 89, 27 February
2007). It has also asserted the importance of respect for the
presumption of innocence during press conferences by State officials
(see Butkevičius,
cited above, §§ 50-52; Lavents
v. Latvia, no.
58442/00, § 122, 28 November 2002; and Y.B.
and Others v. Turkey,
nos. 48173/99 and 48319/99, §§ 49 51, 28 October
2004). Nevertheless, whether a statement of a public official is in
breach of the principle of the presumption of innocence must be
determined in the context of the particular circumstances in which
the impugned statement was made (see Adolf
v. Austria,
26 March 1982, §§ 36-41, Series A no. 49). In any
event, the opinions expressed cannot amount to declarations by a
public official of the applicant's guilt which would encourage the
public to believe him or her guilty and prejudge the assessment of
the facts by the competent judicial authority (see
Butkevičius, cited above, § 53).
(b) Application of these principles in the
present case
The
Court acknowledges that the applicant held an important position in a
State agency dealing with privatisation of all State-owned property
and that his activities were of great interest to the general public.
At the time of the alleged offence the highest State officials,
including in particular the State Attorney and the Head of the
Police, were required to keep the public informed of the alleged
offence and the ensuing criminal proceedings. However, this duty to
inform the public cannot justify all possible choices of words, but
has to be carried out with a view to respecting the right of the
suspects to be presumed innocent.
The
Court is also mindful that the statements at issue were made only a
day (in the case of the Head of the Police and the Attorney General)
and four days (in the other cases) following the applicant's arrest.
However, it was particularly important at this initial stage, even
before a criminal case had been brought against the applicant, not to
make any public allegations which could have been interpreted as
confirming his guilt in the opinion of certain important public
officials (see, mutatis mutandis, Butkevičius,
cited above, § 51).
The
Court notes that in the present case the impugned statements were
made by the State Attorney, the Head of the Police, the Prime
Minister and the State President in a context independent of the
criminal proceedings themselves. The Court shall now proceed by
examining separately each of the statements by the persons concerned.
The
Court notes that the Head of Police was quoted as having said that
“just to ... allow you into the game, into making deals for
purchasing CFP property, a sum of 50,000 euros was required in
payment”, a statement which referred to the already arrested
vice-presidents of the CPF. The State Attorney was quoted as having
said that “the suspects were ravenously greedy. Just for
initiating any conversation about business they asked for 50,000
euros.”
The
Court cannot accept the Government's arguments that the applicant's
name had not been mentioned and that at the time the identity of
suspects had not been known. The Court notes that the applicant was
arrested on suspicion of having taken bribes in his capacity as one
of the vice-presidents of the CPF on 16 June 2007 and that therefore
the impugned statements by the Head of the Police and the State
Attorney, published on 18 June 2007 in an article concerning the
alleged criminal activities of highly positioned employees of the
CPF, clearly referred, inter alia, to the applicant.
The
statements of the Head of the Police and the State Attorney were not
limited to describing the status of the pending proceedings or a
“state of suspicion” against the applicant but were
presented as an established fact, without any reservation as to
whether the act of taking bribes had actually been committed by the
suspects, one of whom was the applicant.
As
to the statement by the Prime Minister, the Court notes that he
asserted that there had been organised crime in the CPF and while he
conceded that the three vice presidents might have not participated
in each project, he also implied that they had been involved in the
organised crime. The Court notes that it is clear that this statement
also concerned the applicant since he was one of the three
vice-presidents of the CPF and the impugned statements referred to
the criminal activity in connection with which the applicant had been
arrested.
As
regards the impugned statement of President Mesić, the Court
notes that he named the CPF as the centre of corruption and implied
that the three tenors had been a part of it. Although he used
metaphorical terms it is clear that the expression “three
tenors” referred to the three arrested vice-presidents of the
CPF, one of whom was the applicant. The Court considers that the
wording of the impugned statement goes further than just saying that
the applicant was a suspect as regards charges of corruption. The
expressions used put a certain label on the three vice-presidents of
the CFP, implying that they had been part of the corruption in the
CPF.
The
Court considers that those statements by public officials amounted to
a declaration of the applicant's guilt and prejudged the assessment
of the facts by the competent judicial authority. Given that the
officials in question held high positions, they should have exercised
particular caution in their choice of words for describing pending
criminal proceedings against the applicant. However, having regard to
the contents of their statements as outlined above, the Court finds
that their statements could not but have encouraged the public to
believe the applicant guilty before he had been proved guilty
according to law.
Accordingly,
the Court finds that there was a breach of the applicant's right to
be presumed innocent. There has therefore been a violation of Article
6 § 2 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
Lastly,
the applicant complained that he had been discriminated against.
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 complaint 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.
V. 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 60,000 euros (EUR) in respect of non-pecuniary
damage in connection with his complaint under Article 3 of the
Convention. He also claimed EUR 12,862 in respect of pecuniary damage
on account of the costs he had incurred for medical treatment he had
needed owing to the deterioration of his health during his detention.
The
Government argued that, following the Constitutional Court's findings
as regards his complaints under Article 3 of the Convention, the
applicant was able to seek compensation from the State. In any event,
the compensation claimed was excessive.
The
Court notes that the applicant's complaints under Article 3 of the
Convention have been declared inadmissible and that he has not
submitted any claim for pecuniary or non-pecuniary damage in
connection with his other complaints. It therefore dismisses this
claim.
B. Costs and expenses
The
applicant also claimed EUR 5,605 for the costs and expenses incurred
before the domestic courts in the proceedings concerning the ordering
and extension of the applicant's detention and EUR 4,388.45 for those
incurred before the Court.
The
Government argued that the applicant had no right to the costs and
expenses incurred before the domestic courts.
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. As to the domestic proceedings concerning
the decisions on ordering and extending the applicant' detention, the
Court agrees that, as they were essentially aimed at remedying some
of the violations of the Convention alleged before the Court, these
domestic legal costs may be taken into account in assessing the claim
for costs (see Scordino
v. Italy (no. 1)
[GC], no. 36813/97, § 284, ECHR 2006-V). In the present
case, regard being had to the information in its possession and the
above criteria, the Court awards the applicant the sum of EUR 5,600
for costs and expenses in the proceedings before the national
authorities. As to the Convention proceedings, making its assessment
on an equitable basis and in the light of its practice in comparable
cases, the Court considers it reasonable to award the applicant, who
was represented by counsel, the sum of EUR 4,300, plus any tax that
may be chargeable to him on these amounts.
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 complaint concerning the grounds
for the applicant's detention; the applicant's right to a review of
his detention; as well as his right to be presumed innocent,
admissible and the remainder of the application inadmissible;
2. Holds
that there has been a violation of Article 5 § 3 of the
Convention;
3. Holds
that there has been no violation of Article 5 § 4 of the
Convention in respect of the Supreme Court's decision of 19 September
2008;
4. Holds
that there has been a violation of Article 5 § 4 of the
Convention as regards the Constitutional Court's decisions of 25
September and 18 December 2008;
Holds that there has been a violation of Article
6 § 2 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 9,900 (nine
thousand nine hundred euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
