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SEBALJ v. CROATIA - 4429/09 [2011] ECHR 1048 (28 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1048.html
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[2011] ECHR 1048
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FIRST
SECTION
CASE OF ŠEBALJ v. CROATIA
(Application
no. 4429/09)
JUDGMENT
STRASBOURG
28 June
2011
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 Šebalj v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly Kovler, President,
Nina
Vajić,
Peer Lorenzen,
Khanlar
Hajiyev,
George Nicolaou,
Julia
Laffranque,
Linos-Alexandre Sicilianos, judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 7 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 4429/09) 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 Zoran Šebalj
(“the applicant”), on 25 March 2009.
The
applicant was represented by Ms L. Horvat and Mr S. Radobuljac,
lawyers practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š.
StaZnik.
On
8 June 2010 the President of the First Section decided to give notice
to the Government of the complaints under Article 3, Article 5 §§ 3
and 4, and Article 6 §§ 1 and 3(c) of the Convention. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1). On 18 January
2011 the President of the First Section gave notice of further
complaints, under Article 5 §§ 1 and 4 and Article 6 §
1 of the Convention, and the Government were invited to submit the
relevant practice of the Supreme Court on the question of the
lawfulness of the applicant’s detention after 19 June 2008.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1971 and lives in Zagreb.
The
documents in the case file reveal the following facts.
A. The three sets of proceedings joined under case file
no. Ko-824/08
1. Criminal proceedings conducted under case file no.
Ko-219/06
On
21 September 2005 the applicant was arrested in connection with a
suspicion that he had committed several acts of theft. He was
released on 22 September 2005.
On
23 January 2006 the Zagreb Municipal State Attorney’s Office
preferred charges against the applicant in the Zagreb Municipal Court
on two counts of aggravated theft in the period between 1 and 4 July
2005 and on 11 and 12 September 2005.
A
hearing scheduled for 6 April 2006 was adjourned at the applicant’s
request because he wanted to find legal representation.
A
hearing scheduled for 8 June 2006 was adjourned owing to the
applicant’s absence. In a submission of the same day the
applicant informed the presiding judge that he was in pre-trial
detention in connection with some other criminal proceedings against
him.
At
a hearing scheduled for 2 October 2006 the applicant was summoned
through the Zagreb Prison authorities but he was not brought to the
hearing because he had been released on 26 June 2006.
The
presiding judge ordered the police to bring the applicant to a
hearing scheduled for 21 November 2006, but this order was not
complied with. On 28 November 2006 the police informed the presiding
judge that the applicant did not live at his registered address.
On
1 December 2006 the presiding judge asked the Central Prison
Administration whether the applicant was placed in any penal
institution in Croatia. On 4 January 2007 the Central Prison
Administration answered that that was not the case.
On
16 July 2007 the proceedings at issue were joined with the criminal
proceedings nos. Ko-2965/06 and Ko-2403/07 (see below, §§ 56
and 68).
On
4 August 2007 the applicant submitted a letter of authority for his
defence lawyer, J.N.
A
hearing was held on 12 September 2007 in the presence of the
applicant and his defence lawyer.
The
applicant had already been placed in detention on 19 June 2007,
pursuant to a detention order of 22 May 2007, issued in the
proceedings conducted under the case file no. 2403/07 (see below, §§
62 and 63). On 28 September 2007 a three-judge panel of the
Zagreb Municipal Court extended the applicant’s detention on
the grounds under Article 102 § 1(1) (fear of absconding) and
1(3) (fear of reoffending) of the Code of Criminal Procedure. The
reasoning was essentially the same as in the decision extending the
applicant’s detention of 12 July 2007 (see below, § 67).
On
1 October 2007 the applicant lodged an appeal arguing firstly that
the first-instance decision had not specified the period of detention
covered by it and that his detention between 19 August and
28 September 2007 was not covered by any decision, and secondly
challenging the grounds for his detention on the ground that he could
live with the family D. and that he had not committed any criminal
offence in the past year.
A
hearing was held on 4 October 2007 in the presence of the applicant
and a defence lawyer.
On
5 October 2007 the Zagreb County Court dismissed the applicant’s
appeal of 1 October 2007 finding that he had no address to which the
courts could send him a summons, since the police had established
that I.D, the owner of the flat at the address indicated by the
applicant stated that the applicant was a friend of his son but had
never lived with them. The appeal court accepted the grounds for
detention put forward by the first-instance court. It made no
comments on the applicant’s argument that his detention in the
period between 19 August and 28 September 2007 had not been
covered by any decision.
A
hearing was held on 30 October 2007 in the presence of the applicant
and a defence lawyer.
On
2 November 2007 the applicant lodged a request for his release
submitting a written statement by I.D. that he allowed the applicant
to live in his flat.
On
5 November 2007 a three-judge panel of the Zagreb Municipal Court
extended the applicant’s detention under Article 102§ 1(3)
(fear of reoffending) of the Code of Criminal Procedure, and no
longer for fear of absconding. It found that the applicant had
already been convicted four times for theft or aggravated theft and
each time sentenced to a prison term and that two further sets of
criminal proceedings, also concerning charges of theft, were pending
against him. Against that background and in view of the number of
individual thefts concerned in the proceedings at issue, which all
showed the applicant’s resolve to commit criminal offences of
theft, the Municipal Court concluded that there was a real danger of
his reoffending.
On
8 November 2007 the applicant lodged an appeal arguing, in sum, that
the first-instance court had relied on erroneous provisions when
ordering his detention.
On
9 November 2007 the Zagreb County Court dismissed the appeal,
endorsing the reasoning of the first-instance court.
A
hearing was held on 21 November 2007 in the presence of the applicant
and a defence lawyer.
On
7 December 2007 a three-judge panel of the Zagreb Municipal Court
extended the applicant’s detention under Article 102 §
1(3) (fear of reoffending) of the Code of Criminal Procedure. It
found that the proceedings at issue concerned six different thefts
and that two other sets of criminal proceedings also concerning
charges of theft were pending against him. Furthermore, he had
already been convicted of theft or aggravated theft four times and
each time sentenced to a prison term. Against that background the
Municipal Court concluded that the applicant had shown a high degree
of criminal resolve in committing thefts and that the previous
convictions had not prevented him from continuing with criminal
activity of the same type.
A
hearing was held on 11 December 2007 in the presence of the applicant
and a defence lawyer. The Deputy State Attorney present at the
hearing withdrew charges in respect of three counts of theft. On the
same day a judgment was adopted finding the applicant guilty of two
counts of theft and sentencing him to one year and three months’
imprisonment. In respect of the remaining charge he was acquitted.
The trial panel also extended the applicant’s detention under
Article 102 § 1(3) (fear of reoffending) of the Code of Criminal
Procedure.
On
17 December 2007 the applicant lodged an appeal against the decision
extending his detention, challenging the grounds for his detention.
The appeal was dismissed on 18 December 2007 by a three-judge panel
of the Zagreb Municipal Court.
On
20 December 2007 the applicant’s defence lawyer also lodged an
appeal against the decision extending his detention, challenging the
grounds for his detention. The appeal was dismissed on 20 December
2007 by a three-judge panel of the Zagreb Municipal Court.
On
1 January 2008 the applicant’s defence lawyer lodged an appeal
against the first-instance judgment. He argued that the facts of the
case had been wrongly established, that the reasoning of the judgment
was contradictory and that the sentence applied was too harsh.
On
10 January 2008 the applicant also lodged an appeal against the
first-instance judgment, arguing that it had not been proven that he
had committed the thefts in question. On the same day the Zagreb
Municipal State Attorney’s Office also lodged an appeal against
the part of the judgment acquitting the applicant.
On
4 March 2008 the Zagreb County Court upheld the first instance
judgment as regards the part finding the applicant guilty of one
count of theft and quashed the remaining part of the judgment, both
in the part finding the applicant guilty in respect of the other
count of theft and the part acquitting the applicant of one count of
theft. In that part the case was remitted for retrial. The County
Court at the same time extended the applicant’s detention under
Article 102 § 1(3) (fear of reoffending) of the Code of Criminal
Procedure. It endorsed the reasons previously put forward by the
Zagreb Municipal Court.
The
case was given a new number, Ko-824/08.
On
26 March 2008 the Zagreb Municipal Court appointed a defence lawyer
for the applicant since his chosen lawyer ceased to represent him.
On
4 April 2008 a three-judge panel of the Zagreb Municipal Court again
extended the applicant’s detention under Article 102 § 1(3)
(fear of reoffending) of the Code of Criminal Procedure, reiterating
the same reasons as previously.
On
8 April 2008 the applicant lodged an appeal arguing that the reasons
for his detention were insufficient and that the first-instance court
had only repeated its previous arguments.
On
15 April 2008 the Zagreb County Court dismissed the appeal, endorsing
the reasoning of the first-instance court.
On
22 April 2008 the applicant submitted a request for his release,
arguing that the reasons relied on by the national courts for
extending his detention were insufficient.
On
25 April 2008 a three-judge panel of the Zagreb Municipal Court
denied the applicant’s request, reiterating its previous
reasons justifying the applicant’s detention.
A
hearing was held on 9 May 2008 in the presence of the applicant and
his defence lawyer.
On
15 May 2008 a three-judge panel of the Zagreb Municipal Court
extended the applicant’s detention under Article 102 §
1(3) (fear of reoffending) of the Code of Criminal Procedure,
reiterating the same reasons as previously.
On
20 May 2008 the applicant lodged an appeal arguing that the reasons
for his detention were not relevant and sufficient. The appeal was
dismissed on 21 May 2008 by the Zagreb County Court, which endorsed
the reasoning of the first-instance court.
On
17 June 2008 the presiding judge sent a letter to the Zagreb Prison
authorities informing them that on 19 June 2008 the maximum statutory
detention in respect of the applicant would expire and that the
applicant was to be released that day. However, the applicant was not
released and stayed in detention on the basis of the detention order
issued in another set of proceedings (see below, paragraph 72).
The
written record of a hearing held on 7 July 2008 states that the
applicant was no longer detained in connection with the proceedings
at issue, but was still detained on the basis of a detention order
issued in the criminal proceedings against him pending before the
same court under the case file no. 3257/05.
On
9 July 2008 the presiding judge released from his duty the officially
appointed defence lawyer because the applicant was no longer detained
in connection with the proceedings at issue and therefore the
applicant no longer had the right to be represented by an officially
appointed lawyer. However, on the same day the President of the
Zagreb Municipal Court appointed a new defence lawyer for the
applicant.
Hearings
were held on 19 September, 22 October and 8 December 2008 and 29
January, 27 February and 3 April 2009, in the presence of the
applicant and a defence lawyer. On the last mentioned date a judgment
was given finding the applicant guilty of two counts of theft and
sentencing him to two years and six months’ imprisonment. The
time he had spent in detention in connection with the proceedings at
issue between 19 June 2007 and 19 June 2008 was to be included
in the sentence.
On
11 January 2010 the applicant lodged an appeal arguing that the facts
of the case had been wrongly established and that some evidence had
been unlawfully obtained. He complained about his treatment during
the police questioning, maintaining that after the police search of
his flat on 21 September 2005 at 12.45 p.m., the police had
taken a large number of items from his flat and had then taken him to
the Zagreb Police Department where he was placed in a small room and
forced to sit on a chair until the next morning. During all that time
he was once given a sandwich and a fruit juice. On the morning of 22
September 2005 the police forced him to sign some papers. He had not
been present in the office where the police officers made a list of
the items allegedly taken from his flat.
On
13 January 2010 the defence lawyer also lodged an appeal arguing that
the facts of the case had been wrongly established.
The
proceedings are currently pending before the Zagreb County Court.
2. Criminal proceedings conducted under the case file
no. Ko-2965/06
On
9 September 2006 at 1.30 a.m. the applicant was arrested in
connection with a suspicion that he had committed a theft. He was
released on the same day at 1.15 p.m.
On
25 September 2006 the Zagreb Municipal State Attorney’s Office
preferred charges against the applicant in the Zagreb Municipal Court
on one count of attempted aggravated theft, allegedly committed on
8 September 2006.
A
hearing scheduled for 18 May 2007 was adjourned owing to the
applicant’s absence.
On
1 June 2007 the Ministry of Justice informed the Municipal Court that
the applicant had already been convicted four times for aggravated
theft.
On
4 June 2007 the presiding judge asked the police to find the
applicant’s whereabouts. On 26 June 2007 the police informed
the judge that the applicant did not live at his registered address.
On
4 July 2007 the police informed the Municipal Court that the
applicant was in detention in Zagreb Prison.
On
16 July 2007 the proceedings at issue were joined with the criminal
proceedings nos. Ko-2403/07 and Ko-219/06 (see above, paragraph 13).
3. Criminal proceedings conducted under the case file
no. Ko-2403/07
On
16 October 2006 the Zagreb Municipal State Attorney’s Office
asked an investigating judge of the Zagreb County Court to open an
investigation in respect of the applicant in connection with a
suspicion that he had committed eight acts of theft, in the period
between 17 July and 4 September 2006.
On
13 November 2006 the investigating judge asked the Vukovar County
Court to hear evidence from the applicant since his registered
address was on the territory under the jurisdiction of that court.
At
a hearing held on 1 December 2006 the investigating judge heard
evidence from two witnesses.
On
20 December 2006 the investigating judge reiterated his request of 13
November 2006. On 8 January 2007 the Vukovar County Court informed
the investigating judge that the applicant did not live at his
registered address.
On
8 February 2007 the investigating judge ordered the police to bring
the applicant to a hearing scheduled for 26 February 2007 and
indicated an address in Zagreb. On 27 February 2007 the police
informed the investigating judge that the applicant did not live at
the address indicated in his order.
On
22 May 2007 the investigating judge ordered the applicant’s
pre-trial detention under Article 102 § 1(1) (fear of
absconding) of the Code of Criminal Procedure for one month. The
decision was justified by the fact that the applicant did not live at
his registered address and a conclusion that he was in hiding.
The
applicant was arrested on 19 June 2007 and placed in pre-trial
detention in Zagreb Prison.
On
20 June 2007 the investigating judge heard evidence from the
applicant in the presence of an officially appointed defence lawyer.
On
25 June 2007 the applicant asked the investigating judge to be
represented by his defence lawyer, J.N.
On
9 July 2007 the Zagreb Municipal State Attorney’s Office
preferred charges against the applicant in the Zagreb Municipal Court
on three counts of aggravated theft in the period between 30 August
and 8 September 2006.
On
12 July 2007 a three-judge panel of the Zagreb Municipal Court
extended the applicant’s detention on the grounds provided for
under Article 102 § 1(1) (fear of absconding) and 1(3)
(fear of reoffending) of the Code of Criminal Procedure. As regards
the first ground the Municipal Court held that during the
investigation the applicant had not been available since he had not
been living at his registered address and the owner of a house at the
other address he had indicated had refused to allow the applicant to
live there. As regards the second ground, the Municipal Court held
that the fear of reoffending was justified by the fact that the
applicant had already been convicted of theft four times, was
unemployed, had no assets, and several further sets of criminal
proceedings against him also on charges of theft were pending.
On
16 July 2007 the proceedings at issue were joined to the criminal
proceedings in cases nos. Ko-2965/06 and Ko-219/06 (see paragraph 13
above).
B. The two sets of proceedings joined under case file
no. Ko-3257/05
1. Criminal proceedings conducted under case file no.
Ko-3257/05
The
written record of the applicant’s questioning by the police
officers in the Fifth Police Station in Zagreb states that on 2
November 2005 he was questioned by the police in connection with a
suspicion that he had committed several thefts. He confessed that in
2005 he had committed seven thefts in Zagreb. The written record of
his interview states that it started at 12.30 p.m. and ended at
1.40 p.m. It also states that a lawyer E.Č. was called at 12.30
p.m. and was present during the questioning. The record is signed by
police officer H.Ć., typist S.V.F., the applicant and lawyer
E.Č.
On
23 November 2005 the Zagreb Municipal State Attorney’s Office
preferred charges against the applicant in the Zagreb Municipal
Court, on seven counts of theft committed in Zagreb in the period
between 1 May and 6 October 2005.
A
hearing scheduled for 21 April 2006 was adjourned because the
applicant did not appear and the postal receipt indicated that he was
unknown at his registered address. In their letters of 29 May and
6 October 2006 the Zagreb Police informed the Municipal Court
that the applicant did not live at any of the addresses they had
obtained.
On
20 November 2006 the President of the Zagreb Municipal Court
appointed lawyer I.V. to represent the applicant. On the same day a
three-judge panel of the Zagreb Municipal Court ordered the
applicant’s detention under Article 102 § 1(1) (fear of
absconding) of the Code of Criminal Procedure for one month, from the
date when the decision became final. The decision was justified by
the fact that the applicant did not live at his registered address
and a conclusion that he was in hiding.
On
23 November 2006 the Zagreb Municipal Court issued an arrest warrant
in respect of the applicant and sent it to the Zagreb Police for
enforcement.
On
28 March 2008 lawyer I.V. lodged an appeal against the decision on
detention arguing that he had received the impugned decision on
25 March 2008, whilst the panel’s session had taken place
in November 2006. Moreover, a decision appointing him as the
applicant’s defence lawyer had been served on him on 17 March
2008 although it had been adopted on 20 November 2006. Thus he had
not been informed of the panel’s session for a decision on the
applicant’s detention and had been prevented from attending it.
On
13 March 2008 the Zagreb Police informed the Municipal Court that the
arrest warrant was not registered because the applicant had already
been detained in connection with the other criminal proceedings
pending against him before the same court (see below, paragraphs 62
and 63).
On
10 April 2008 the President of the Zagreb Municipal Court relieved
lawyer I.V. of his duty.
At
a hearing held on 14 April 2008 the applicant requested its
adjournment and that a defence lawyer be officially appointed for him
because he had no means to pay for his legal representation.
On
15 April 2008 the President of the Zagreb Municipal Court appointed
lawyer D.M. to represent the applicant.
A
hearing was held on 20 May 2008 in the presence of the applicant and
his defence lawyer. The applicant denied that he had committed the
thefts with which he was charged and stated that he had signed his
confession to the police under duress. The relevant part of his
statement reads:
“It is not true that I committed the criminal
offences I am charged with. I signed the statement made at the police
station under duress and after physical and mental ill-treatment. I
was questioned by two police inspectors and other police officers
were also coming and going during the questioning. They slapped me in
the face, forced me to stand continually for two hours on my toes,
not allowing me to sit down. I stayed for twenty-four hours at the
Police Station in Bauerova Street and was taken to the Črnomerec
Police Station only during the night. The lawyer arrived but only to
sign the written record [of my questioning] and when he arrived I did
not consult him. We went to another room where he asked me to pay 500
Croatian kuna, which I did, and I signed the written record of my
questioning only to be let free.
To a specific question I can say that I did not see a
doctor after being released because I had no visible injuries and
such treatment [by the police] has become normal for me. I did not
read the written record that I signed, and nor did the lawyer.”
On
5 June 2008 the applicant asked that all criminal proceedings pending
against him before the Municipal Court be joined. On 13 June 2008 the
proceedings at issue were joined to the criminal proceedings in case
no. Ko-2730/07, since they were at a similar stage, while the
proceedings conducted under no. Ko-824/08 (see below, paragraph 140)
were not joined because the hearing in those proceedings had been
concluded and the judgment was in the process of being drafted.
Since
on 19 June 2008, the statutory maximum period for the applicant’s
detention in connection with the criminal proceedings pending against
him in the Zagreb Municipal Court under case file no. Ko-824/08
expired (see below, paragraph 43), the decision ordering the
applicant’s detention in the proceedings at issue of 20
November 2006 came into force.
On
23 June 2008 the applicant lodged an appeal against that decision
arguing that the finding that he was of unknown residence was wrong
since he had been in detention for the past twelve months. Relying on
Article 5 § 1 of the Convention, he also argued
that the maximum statutory period for his detention had expired and
that in view of the inviolability of the right of liberty of person
no further detention against him could be lawful. By extending his
detention beyond that time-limit the Municipal Court had misapplied
the rules of criminal procedure.
On
23 June 2008 the Zagreb County Court dismissed the appeal against the
Zagreb Municipal Court’s decision of 20 November 2006, lodged
by lawyer I.V., but did not decide on the applicant’s personal
appeal of 23 June 2008. It held that the reasons for detention put
forward by the Municipal Court were sufficient but made no findings
as to the lawyer’s argument that he was prevented from
attending the panel’s meeting of 20 November 2006.
At
a hearing on 14 July 2008, the Municipal Court heard evidence from
H.Ć., the police officer who interviewed the applicant on
2 November 2005. The relevant part of his statement reads:
“It is true that on 2 November 2005 I questioned
the defendant in the V Police Station and I remember that all the
time during the questioning a lawyer, called by my colleague K.K.
from the list of lawyers kept by the police, was present. Upon the
lawyer’s arrival and before the questioning commenced, the
lawyer was informed about the case and was left for some time alone
with the defendant ...
To a question from the judge I can say that I do not
remember which lawyer it was. Both the lawyer and the defendant
signed the written record of questioning without making any
objections.
To a question from the defence lawyer I can say that
what I have just said concerns the case at issue and that I do not
remember the details concerning the victims or other matters.
To a question from the judge I can say that apart from
the lawyer, the defendant and me, a typist was also present and my
colleague K.K. was sometimes passing by but did not attend the
interview.”
The
Municipal Court also heard evidence from typist S.V.F. The relevant
part of her statement reads:
“Today when I see the defendant I can say that I
do not remember him or his questioning because I do it all the time.
To a question from the judge I can say that usually
during the questioning of a suspect I type what a police officer is
dictating to me. ... A suspect tells me his version of events and
then a police officer dictates to me the suspect’s defence
formulated in a comprehensible manner and I type it. A police officer
asks the suspect questions. When a written record is completed it is
given to a suspect to read and he signs it. The same method is used
when a lawyer is present. Where a written record of questioning shows
that a lawyer was present and a lawyer has signed the record it means
that he was present from the beginning until the end of the
questioning.
To a question from the defence lawyer I can answer that
now when I see the written record of the defendant’s
questioning of 2 November 2005, I cannot explain why there is no
mention of the time when the defence lawyer arrived.
To a question from the judge I can say that all
information and the name of a defence lawyer and the time of his
arrival are dictated to me by a police officer conducting the
questioning and who also signs the record. Lawyers do not always
promptly answer our calls and sometimes we have to wait for them.
When I am asked whether we start with the questioning before that, I
can say that we do not.”
The
applicant objected to the veracity of the witness statement to the
effect that she had not been present at his questioning by the
police.
The
defence lawyer requested the applicant’s release but it was
denied and a separate decision was adopted to that effect. The
presiding judge held that the case file showed that the presence of
the applicant in the proceedings could not be ensured because he had
neither lived at his registered address nor at the address indicated
as his temporary residence. The address the applicant indicated at
the hearing was not the one at which he was registered. Against that
background, and in view of the large number of criminal charges
against him, the presiding judge concluded that there was a risk that
the applicant would continue to change his place of residence and
again become unavailable.
On
16 July 2008 the applicant also requested his release.
On
17 July 2008 a three-judge panel of the Zagreb Municipal Court denied
the request on the same ground as the presiding judge in her decision
of 14 July 2008.
On
22 July 2008 the applicant lodged a constitutional complaint against
the decisions of 20 November 2006 and 23 June 2008 arguing, inter
alia, that his right to liberty of person was violated as well as
his right to receive an answer to his appeal; that the prescribed
procedures had not been complied with; and that the lower
first-instance court had not conducted the proceedings with the
required efficiency.
On
24 July 2008 a three-judge panel of the Zagreb Municipal Court
extended the applicant’s detention under Article 102 §
1(1) (fear of absconding) and 1(3) (fear of reoffending) of the Code
of Criminal Procedure, citing the same reasons as before.
On
28 July 2008 the applicant lodged an appeal, arguing that on 19 June
2008 the statutory maximum period for his detention had expired. He
also argued that his detention between 23 and 24 July 2008 was not
covered by any decision. He further claimed that two separate
decisions on his detention existed at the same time, since in the
proceedings at issue a decision ordering his detention had been
adopted on 20 November 2006 and in the proceedings no. Ko-2403/07 he
was arrested and placed in pre-trial detention on 19 June 2007 on the
basis of a detention order of 22 May 2007. He considered that
situation unlawful. He further argued that the reasons for extending
his detention were not relevant and that the proceedings were not
conducted with the required efficiency, all in breach of Article 5 of
the Convention.
On
29 July 2008 the Zagreb County Court dismissed the applicant’s
appeal, finding that the reasons put forward by the Municipal Court
were relevant and sufficient. It made no comments as to the remaining
arguments by the applicant.
On
11 August 2008 the applicant sought his release arguing that the
reasons for his detention had ceased to exist and also that the
proceedings had not been conducted with the required efficiency.
On
12 August 2008 a three-judge panel of the Zagreb Municipal Court
denied the request, reiterating previous reasons as regards the
ground for the applicant’s detention and making no comments as
to the conduct of the proceedings.
On
29 August 2008 a three-judge panel of the Zagreb Municipal Court
extended the applicant’s detention under Article 102 §
1(1) (fear of absconding) and 1(3) (fear of reoffending) of the Code
of Criminal Procedure, citing the same reasons as before.
On
1 September 2008 the applicant lodged an appeal reiterating the same
arguments as in his appeal of 28 July 2008.
On
2 September 2008 a hearing was held in the presence of the applicant
and without defence counsel. The applicant agreed that two witnesses
had given evidence.
On
10 September 2008 lawyer D.M. lodged an appeal against the decision
of 29 August 2008 arguing that the reasons for the applicant’s
detention had ceased to exist and that no alternative measures had
been considered.
On
11 September 2008 the Zagreb County Court dismissed both appeals,
endorsing the reasons of the first-instance court.
The
applicant lodged a constitutional complaint on 21 September
2008. He challenged the grounds for his detention and also argued
that the statutory maximum period for his detention had expired and
that the first-instance court had not conducted the proceedings with
the required efficiency, contrary to Article 5 of the Convention.
At
a hearing on 22 September 2008 the applicant presented his defence.
He firstly stated that he maintained his statement of 20 May 2008 and
then gave his defence to the charges preferred in the proceedings
previously conducted under case file no. Ko-2730/07. The relevant
part of his statement reads:
“... on 19 June 2007 I was shopping when I was
arrested by the police and taken to a police station and questioned
about the criminal offences of thefts and burglaries committed in the
territory of the Fifth Police Station. I was questioned the second
day after my arrest and pressure was put on me. I was physically
ill-treated by the police officers who beat me and my confession was
thus forced. On that occasion lawyer S.S. was called but he did not
attend my interview. I do know that he talked to the police officers
and signed the written record of my questioning. I stayed in
detention in connection with the other set of proceedings. I did not
say any of what is stated in the written record of my questioning by
the police officers in the Fifth Police Station.
To a question by the representative of an injured party
I can say that I did not enter any of the premises or take any of the
items listed in the indictment and I am not familiar with Ksaver [an
area in Zagreb].
To a further question by the representative of an
injured party I can say that the police did not find on me any items
which were not mine.”
Lawyer
E.Č. also gave his evidence:
“Owing to the passage of time I do not remember
the defendant. Likewise, I do not remember the time of the
questioning on 2 November 2005 on the premises of the Fifth Police
Station in Zagreb. At that time I was often called by the police
officers to attend interviews of suspects. Usually I would first talk
in private with a suspect and explain their rights to them and their
procedural position and then the suspects alone would decide whether
to give their defence to the police. When they decided to give their
defence I would be present during the entire questioning. After that
the written record would be read out loud to the suspect and then
both the suspect and I would sign it.
To a question by the defence lawyer that the defendant
had said that he had paid HRK 500 to me, I can say that I do not
remember it but I admit that it could be true.”
The
applicant then objected to the evidence given by lawyer E.Č. and
said that the written record of his questioning of 2 November 2005
had been signed only the next day at the request of a court.
At
the end of the hearing the defence lawyer asked for the applicant’s
detention to be discontinued. The request was denied by a decision
issued on the same day. The Municipal Court reiterated its previous
arguments.
On
1 October 2008 the Constitutional Court accepted the applicant’s
constitutional complaint of 21 September 2008 against a decision by
the Zagreb Municipal Court of 29 August 2008 and a decision by the
Zagreb County Court of 11 September 2008, in the part concerning the
ground for his detention under Article 102 § 1(1) of the Code of
Criminal Procedure (fear of absconding), and at the same time upheld
both impugned decisions in the part referring to the ground under
Article 102 § 1(3) of the Code of Criminal Procedure
(fear of reoffending). The Constitutional Court made no comments on
the applicant’s argument that the statutory maximum period for
his detention had expired and the argument that the conduct of the
proceedings was inefficient.
On
10 October 2008 a three-judge panel of the Zagreb Municipal Court
extended the applicant’s detention under Article 102 §
1(3) of the Code of Criminal Procedure (fear of reoffending) and
reiterated its previous arguments as regards that ground.
At
a hearing held on 13 October 2008 the Municipal Court heard evidence
from lawyer S.S. and police officers R.Ð. and I.K.
The
relevant part of the statement given by lawyer S.S. reads as follows:
“I remember that I participated in the questioning
of the defendant on the premises of the Fifth Police Station in
Zagreb on 20 June 2007 and I do remember that the questioning
concerned some burglaries and I also remember that the defendant has
never paid for my services. I do not remember the details of the
questioning but I do remember that the police offers called me from
the list of lawyers on duty and that at the beginning I refused to
represent the defendant but the police officers convinced me that the
defendant would pay for my services, so then I agreed to represent
him and I came to the police station.
To a question from the presiding judge I can say that
before the questioning I talked with the defendant and informed him
of his rights, that is to say I informed him that his statement given
to the police in my presence could be used at the criminal trial
against him. I do not remember other details. I was present from the
beginning until the end of the questioning.
To a further question whether I signed the written
record of the questioning I can say that I do not remember that but
when the written record is shown to me I can say that my signature is
there.
To a question whether the record was read out to the
defendant, I can say that I do not remember such details.
To a further question from the presiding judge I can say
that before the questioning the defendant had given me his mobile
telephone as a guarantee that he would pay for my services.
To a question from the defence lawyer I can say that the
questioning lasted about an hour and that the Fifth Police Station is
in Bauerova Street.
To a question from the defendant I can say that I do not
remember how much time I spent with him. I do remember that [the
questioning] concerned several criminal offences - six, seven or
eight - and the written record contained three pages.”
The
relevant part of the statement of police officer R.Ð. reads:
“It is true that I was present at the questioning
of the defendant at the Fifth Police Station in Zagreb on 20 June
2007 and that lawyer S.S. was called and that the lawyer was present
at the previous questioning of the same defendant, as well as lawyer
E.Č. I do not remember whether lawyer S.S. was called at the
request of the defendant or from the list of on-duty lawyers. We
allowed the defendant, as we usually do, to consult the lawyer in
private before the questioning. Such consultations usually last about
five to ten minutes in a room where they are left alone.
To a question from the judge I can say that I do not
remember how long exactly lawyer S.S. and the defendant talked in
private before the questioning commenced.
During the questioning the defendant gave his defence
freely and he was also asked some questions.
After he had given his defence I dictated the written
record and the record was written in the presence of the defendant
and the lawyer.
At a question by the judge I can say that when completed
the record was read out to the defendant and the lawyer and given to
them to sign it. I remember that the lawyer took a copy of the
record.
To a question from the judge whether there were any
problems between the defendant and the lawyer concerning the paying
[of the lawyer’s services] I can say that I do not know
anything about it because the defendants usually make arrangements
about it alone with their lawyers.
To a question from the defence lawyer I can say that I
do not remember that the police and the lawyer discussed the payment
since we are not interested in what would be arranged between a
defendant and a lawyer.
To a question from the defence lawyer whether we often
call lawyer S.S., I can say that we call a lawyer who is available at
the time.
To a question from the defendant whether I am sure that
I questioned him I can say that I questioned him at least three
times.
...
When the written record ... is now shown to me I can say
that it contains my signature.”
The
applicant objected to the veracity of the witness statement saying
that police officer R.Ð. had not questioned him.
The
relevant part of a statement given by police officer I.K. reads;
“I do not remember whether I was present at the
defendant’s questioning at the Fifth Police Station on 20 June
2007 together with police officer R.Ð. I do know the defendant
from November 2006 when I was a part of the police team which
arrested him. I also participated in the questioning of the defendant
at the police station about twice but I do not remember the
questioning at issue.
When the written record of 20 June 2007 ... is now shown
to me I can say that it contains my signature. Sometimes, when there
is no typist on duty it is me who types the written record.
To a question from the judge I can say that I do
remember that lawyer S.S. was called but it is all hazy and I cannot
remember any details.”
On
16 October 2008 the applicant lodged an appeal against a decision of
10 October 2008 extending his detention. He challenged the grounds of
his detention, argued that the statutory maximum period for his
detention had expired and also argued that Article 5 of the
Convention had been violated and that the courts had not conducted
the proceedings with the required efficiency.
On
21 October 2008 the Constitutional Court declared the applicant’s
appeal of 22 July 2008 inadmissible on the ground that the impugned
decision was no longer in effect since, in the meantime, a fresh
decision further extending the applicant’s detention had been
adopted.
On
24 October 2008 the defence lawyer lodged an appeal against the
decision of 10 October 2008 extending the applicant’s
detention. He challenged the grounds for detention put forward by the
Municipal Court.
On
24 October 2008 the Zagreb County Court dismissed both appeals
against the decision of 10 October 2008. It endorsed the Municipal
Court’s reasoning.
On
5 November 2008 the applicant lodged a constitutional complaint,
reiterating his previous arguments and particularly stressing that in
its previous decision the Constitutional Court had not examined his
complaint about the inefficient conduct of the proceedings under
Article 5 of the Convention.
A
hearing was held on 12 November 2008 in the presence of the applicant
and his defence lawyer.
On
24 November 2008 a three-judge panel of the Zagreb Municipal Court
extended the applicant’s detention under Article 102 §
1(3) (fear of reoffending) of the Code of Criminal Procedure,
reiterating its previous arguments.
On
26 November 2008 the Constitutional Court dismissed the applicant’s
constitutional complaint of 5 November 2008, accepting the grounds
put forward by the lower courts for the applicant’s detention
as justified. It made no comments on the applicant’s objection
about the conduct of the proceedings and his argument that the
statutory maximum period of his detention had expired.
On
26 November and 8 December 2008, respectively, the applicant and the
defence lawyer each lodged an appeal against the decision of
24 November 2008, challenging the extension of the applicant’s
detention.
On
5 and 10 December 2008 respectively the Zagreb County Court dismissed
the applicant’s and the lawyer’s appeals, endorsing the
reasoning of the Zagreb Municipal Court.
On
15 December 2008 a hearing was held in the presence of the applicant
and his defence lawyer.
On
17 December 2008 the applicant lodged a constitutional complaint
against the decisions of 5 December 2008, reiterating the arguments
from his previous constitutional complaints.
On
12 January 2009 a hearing was held in the presence of the applicant
and his defence lawyer.
On
the same day a three-judge panel of the Zagreb Municipal Court
extended the applicant’s detention under Article 102 §
1(3) (fear of reoffending) of the Code of Criminal Procedure,
reiterating its previous arguments.
On
15 January 2009 both the applicant and his defence counsel lodged
separate appeals against the above decision, challenging the grounds
of the applicant’s detention and arguing that each new decision
extending his detention repeated the same reasoning.
On
20 January 2009 the Zagreb County Court dismissed the appeals.
A
hearing scheduled for 29 January 2009 was adjourned owing to the
non-attendance of the witnesses called. On the same day the
proceedings against the applicant in respect of one count of theft
were terminated because on 9 January 2009 the Zagreb Municipal State
Attorney’s Office had discontinued further prosecution.
On
30 January 2009 the applicant lodged a constitutional complaint
against the decision of 20 January 2009, challenging the grounds for
his detention and again arguing that the statutory maximum period for
his detention had expired.
On
11 February 2009 the Constitutional Court dismissed the complaint
finding that the applicant’s detention was justified and made
no comments as to the applicant’s argument that the statutory
maximum period for his detention had expired.
On
12 February 2009 the Fifth Police Station informed the Zagreb
Municipal Court that the applicant had been taken from prison to that
police station on 9 November 2005 between 9 a.m. and 4 p.m., by an
order issued by a judge of the Zagreb Municipal Court. They also said
that the written record of the applicant’s questioning was
erroneously dated 2 November 2005 instead of 9 November 2005.
At
a hearing held on the same day the applicant gave further evidence.
The relevant part of his statement reads as follows:
“... it is not true that I signed the written
record of my questioning by the police on 2 November 2005 as is
stated in that record. Some time in mid November 2005 I was taken
from Zagreb Prison on an order by a judge of the Zagreb Municipal
Court to the Fifth Police Station and they gave me the record to
sign. However, I do not know what I was signing, I just signed what
they gave me because they told me that I had to sign it. Once there I
had to wait for lawyer E.Č. When he arrived he gave me his
business card, spoke for some time with the police officers and then
we went to sign the record.
To a question from the judge as to why I did not ask
what I was signing I can say that I had been at the police many times
and had never asked what I was signing and I did not at all ask for a
lawyer to be present. To a question about why I signed a document
granting authority to the lawyer, I can say that I do not know why I
did so. ...”
A
letter from the Zagreb Prison Governor to the Municipal Court on 16
February 2009 showed that on 9 November 2005 the applicant had been
taken out of Zagreb Prison to the Fifth Police Station between
9.25 a.m. and 11.35 a.m.
On
19 February 2009 the Constitutional Court declared the applicant’s
constitutional complaint of 17 December 2008 inadmissible (see above,
paragraph 124) on the ground that that the impugned decision was no
longer in effect, since in the meantime a fresh decision further
extending the applicant’s detention had been adopted.
At
a hearing on 10 March 2009 the defence lawyer requested that the
written records of the applicant’s questioning by the police on
9 November 2005 (erroneously dated 2 November 2005) and on
20 June 2007 be removed from the case file since these records
were unlawful evidence. It was not established when lawyer E.Č.
had arrived because there is no relevant evidence as to that fact.
The record showed that the questioning lasted from 12.30 p.m. until
1.40 p.m. in connection with seven counts of different criminal
offences. The questioning on 20 June 2007, concerning twenty-five
criminal offences, supposedly lasted for about an hour, which could
not be possible because the witness S.V.F. had said that the
questioning was conducted in such a way that the applicant first
stated his defence and then the written record was dictated to her by
a police officer before further questions were put to the applicant.
Such questioning in respect of twenty-five different offences could
not have been completed within an hour.
The
request was denied.
On
the same day the applicant was found guilty of thirty-one counts of
theft and sentenced to three years and six months’
imprisonment. The conviction was to a significant extent based on the
applicant’s statements given to the police.
The
relevant part of the judgment reads as follows:
“As regards the written record of the defendant’s
questioning on 2 November 2005 this court heard evidence from E.Č.,
H.Ć. and S.[V.]F.
[statements given by these witnesses are then
reproduced]
This court accepts the statement of witnesses H.Ć.
and S.[V.]F. as regards the circumstances in which the written record
of the defendant’s questioning in the Fifth Police Station were
drawn up, because there is no reason not to believe them, since they
are State officials who have a duty to act in accordance with the law
and who know the relevant laws well.
[This court also accepts] the statement by E.Č.
because his statement has not been called into question. It is
logical in life that the witnesses [H.]Ć. and S.V.F. do not
remember details of the defendant’s questioning, owing to the
passage of time and the numerous interviews they conduct daily, as
well as witness E.Č., who also said that he was often present at
such interviews and it is undisputed that the questioning [of the
defendant] took place three years before the time when the witnesses
gave their evidence. Their statements as regards the usual method of
the questioning of suspects are concordant and mutually corroborated,
which leads this court to conclude that there is no reason not to
believe them that at the end of the questioning a written record is
read out to the parties and they sign it or that the record is given
to the parties to read it if they wish to.
... information has been obtained from the Fifth Police
Station that the defendant was questioned on 9 November 2005, as
shown by the evidence that the defendant was [on that day] taken out
of detention, and the mention of 2 November 2005 in the written
record was an error. This however does not indicate that the
defendant’s objection that the questioning was not conducted in
accordance with the law is well founded because it has not been put
in doubt, and the court finds this objection unfounded and aimed at
avoiding the defendant’s criminal responsibility.
As regards the written record of the defendant’s
questioning on 20 June 2007... this court heard evidence from S.S.,
R.Ð. and I.K.
[statements given by these witnesses are then
reproduced]
This court accepts the statement by witness [S.]S. as
true because it has not been put in doubt. It also accepts the
statements of witnesses R.Ð. and I.K. finding that there is no
reason not to believe them because they are State officials who have
a duty to act in accordance with the law and know the laws well, and
it is understandable that witness [I.]K. could not remember the
details of the defendant’s questioning owing to the passage of
time and the numerous interviews he conducts daily. Since this
evidence was truthful and logical, this court finds that there is no
reason not to believe them, that is to say their statement that after
the written record is completed it is given to the parties to read
and sign.
In view of the above, this court deems unfounded the
defendant’s defence given at the trial, where he said that he
had not read the written record of his questioning by the Zagreb
Police, and that that record had not been read out to him so that he
had not known the content of the record, as well as that he had
signed the record under duress and only in order to be released. ...
Therefore this court finds the defendant’s defence
given at the trial unconvincing. It is necessary to stress that in
his defence given to the police the defendant said that he had stolen
some items but denied taking money from wallets, although the latter
was established as fact from the evidence given by the injured
parties at the trial. Had the police officers falsified the written
record of his questioning, as suggested by the defendant, then they
would surely also have mentioned the taking of the money according to
the complaints of the injured parties. Contrary to this, the written
record states that the defendant did not take any money, which
clearly shows that the police officers did not impute anything to the
defendant ...”
In
addition, his detention was extended until 19 June 2009, under
Article 102 § 1(3) (fear of reoffending) of the Code of Criminal
Procedure, with the same reasoning as before.
On
16 and 20 March 2009 respectively the applicant and his defence
lawyer lodged their separate appeals against a decision extending the
applicant’s detention. They challenged the ground for the
applicant’s detention and argued that the detention between 20
February and 10 March 2009 was not covered by any decision.
On
24 March the Zagreb County Court dismissed the appeals, endorsing the
reasoning of the first-instance court as to the ground for the
applicant’s detention. It made no comments on the argument that
the applicant’s detention between 20 February and 10 March 2009
was not covered by any decision.
On
26 and 27 March 2009 respectively the applicant and his defence
lawyer lodged their separate appeals against the first-instance
judgment of 10 March 2009. They argued that the applicant’s
statements given to the police on two occasions, on 2 November 2005
and 20 June 2007, were unlawful evidence because the applicant
had been heard without the presence of a lawyer and the statements
were fabricated by the police. Both times the lawyers had been called
by the police and were not a choice of the applicant.
As
regards the record of the applicant’s questioning of 2 November
2005, it remained unclear when exactly the applicant had been
questioned. The police officer who allegedly questioned the
applicant, H.Ć., claimed that the questioning had taken place on
2 November 2005, while a letter by the Fifth Police Station sent to
the Municipal Court stated that the questioning had taken place on 9
November 2005 and that it had been erroneously dated 2 November 2005.
However, a letter by the Zagreb Prison Governor sent to the Municipal
Court on 16 February 2009 showed that on 9 November 2005 the
applicant had been taken out of Zagreb Prison to the Fifth Police
Station between 9.25 a.m. and 11.35 a.m., which means that, taking
into account the time needed for travel, the questioning lasted for
about five minutes. In that time, however, it was impossible for the
applicant to consult a defence lawyer, to give his defence and for
the police to dictate and type his defence.
They
further argued that the only way to be sure when a defence lawyer
arrived would be if the police had a record of all defence lawyers’
arrivals and departures from the police stations, but this was not
the case and it was thus impossible to establish with certainty when
the defence lawyer called by the police arrived. It was recorded that
lawyer E.Č. arrived at 12.30 p.m. and that the questioning ended
on 1.30 p.m. on 2 November 2005.
As
regards the applicant’s questioning on 20 June 2007, they
argued that lawyer S.S. had stated that the questioning had lasted
for about an hour. However, the charges about which the applicant was
questioned that day contained twenty-five separate counts of theft
and it would have been impossible for the applicant to consult his
defence lawyer, give his defence and for the police to dictate and
type the written record, all in one hour.
On
17 April 2009 the applicant lodged a constitutional complaint against
decisions by the Municipal Court of 10 March 2009, extending his
detention, and a decision by the Zagreb County Court of 24 March
2009, repeating his previous arguments. On 8 July 2009 the
Constitutional Court declared the complaint inadmissible because, in
the meantime the applicant’s conviction of 10 March 2009 had
become final and therefore the decision of 24 March 2009, upholding
the decision of 10 March 2009, was no longer in effect.
On
2 June 2010 the Zagreb County Court upheld the applicant’s
conviction. The relevant part of the judgment reads:
“... the impugned judgment contains clear and
valid reasons about all decisive facts, including why the
first-instance court accepted the evidence given by H.Ć., S.S.,
S.V.F. and I.K. as true. ...The written records on the defendant’s
questioning by the police, as rightly concluded by the first-instance
court, are lawful evidence because the defendant was questioned in
the presence of his defence counsel.
...
... the first-instance court correctly and completely
established the facts of the case ..., correctly and diligently
assessed all evidence and correctly accepted the evidence given by
all witnesses, ... including those who testified about the
circumstances of the defendant’s questioning by the police. All
these witnesses testified only about the [facts] they remembered;
some of them said that owing to a large number of such interviews
they could not remember all details, but they testified how in
general such interviews are conducted.
The first-instance court ... reproduced in detail the
evidence given by persons who testified about the defendant’s
police interview ... Thus, it heard evidence from lawyers E.Č.
and S.S. and police officers H.Ć., S.V.F., R.Ð. and I.K. In
the impugned judgment their evidence is reproduced in detail and then
the evidence was diligently assessed, each separately and in their
mutual connection and then the defence given by the defendant to the
police and the other, given at the trial, were both assessed ... The
first-instance court, in view of all evidence presented, including
the information about taking the defendant from prison owing to a
mistake in the date when the written record had been drawn up,
correctly concluded that ...the defence given by the defendant at the
trial, where he said that he had signed the written record under
duress and that he had not been questioned in the presence of a
defence lawyer, was unconvincing and aimed at avoiding his criminal
responsibility and contrary to all other evidence, which had been
rightly assessed by the first-instance court as truthful. ...”
On
2 July 2009 the applicant lodged a request for extraordinary review
of a final judgment with the Supreme Court (Vrhovni sud Republike
Hrvatske). He reiterated the arguments from his appeal of 26
March 2009.
On
7 October 2009 the Supreme Court dismissed the applicant’s
request. The relevant part of the judgment reads:
“... the first-instance and second-instance
courts, after finding that the defendant ... had been questioned by
the police in the presence of his defence counsel (as is stated in
the impugned written records) and that the police officers had not
obtained his statement under duress, rightly concluded that these
records were not unlawful evidence ...”.
2. Criminal proceedings conducted under case file no.
Ko-2730/07
On
19 June 2007 at 9.30 p.m. the applicant was arrested and taken to the
Fifth Zagreb Police Station in connection with a suspicion that he
had committed twenty-five separate thefts. The record of his
questioning drawn up on 20 June 2007 states that the questioning
started at 3 p.m. and that lawyer S.S. had been called at 2 p.m. and
arrived at 3 p.m. The applicant confessed to the charges. There is no
mention of the time when the questioning ended and when the applicant
was released.
On
13 July 2007 the Zagreb Municipal State Attorney’s Office
preferred charges against the applicant in the Zagreb Municipal Court
on twenty-five counts of theft allegedly committed in the period
between 18 August 2006 and 6 June 2007.
A
hearing scheduled for 19 February 2008 was adjourned owing to the
applicant’s absence.
On
4 April 2008 the Zagreb Police informed the Municipal Court that the
applicant had no permanent address or place of residence.
A
hearing scheduled for 16 May 2008 was adjourned because the applicant
stated that he wanted to be legally represented.
On
26 May 2008 the President of the Zagreb Municipal Court appointed
lawyer D.V.T. to represent the applicant in the proceedings at issue.
When
on 13 June 2008 the proceedings at issue were joined to the criminal
proceedings in case no. Ko-3257/05 (see above, paragraph 80) the
presiding judge relieved lawyer D.V.T. of his duties.
3. Conditions of the applicant’s detention
The
applicant alleged that since 19 June 2007 he had been placed in
Zagreb Prison in a cell measuring 20.25 square metres, together with
six other inmates, with a semi-secluded toilet, without ventilation
or proper furniture. The window was barred with thick aluminium
netting and let almost no air through. As a result the cell was
constantly bed-smelling and airless, and in the summer unbearably
hot. He was constantly confined in the cell.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant law
The
relevant articles of the Croatian Constitution (Ustav Republike
Hrvatske) provide as follows:
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.
...”
The
relevant provisions of the Constitutional Act on the Constitutional
Court (Ustavni
zakon o Ustavnom sudu,
Official Gazette no. 29/2002) read as follows:
Section 32
“The Constitutional Court shall declare
inadmissible any request or complaints in respect of which it has no
jurisdiction; which are lodged out of time; and in other situations
where the conditions for examining the merits of a case are not met.”
Section 62
“1. Everyone may lodge a constitutional complaint
with the Constitutional Court if he or she deems that a decision
(pojedinačni akt) of a State body, a body of local and
regional self-government, or a legal person with public authority,
which has decided on his or her rights and obligations, or on a
suspicion or accusation of a criminal act, has violated his or her
human rights or fundamental freedoms, or his or her right to local
and regional self-government guaranteed by the Constitution
(hereinafter ‘constitutional right’) ...”
The
relevant provisions of the Code of Criminal Procedure (Zakon o
kaznenom postupku, Official Gazette nos. 110/1997, 27/1998,
58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006)
read as follows:
Article 9
“(1) Court decisions shall not be based on
evidence obtained in an unlawful manner (unlawful evidence).
(2) Unlawful evidence is that obtained in a manner which
infringes the defence rights guaranteed ... by international law ...”
Article 101
“(1) Detention may be imposed only if
the same purpose cannot be achieved by another [preventive] measure.
(2) The detention measure shall be lifted and
the detainee released as soon as the grounds for detention cease to
exist.
(3) When deciding on detention, in particular
its duration, the court shall take into consideration the
proportionality between the gravity of the offence, the sentence
which ... may be expected, and the need to order and determine the
duration of the detention.
(4) The judicial authorities conducting the
criminal proceedings shall proceed with particular urgency when the
defendant is being held in detention and shall review as a matter of
course whether the grounds and legal conditions for detention have
ceased to exist, in which case the custodial measure shall
immediately be lifted.”
Article 102
“(1) Where a reasonable suspicion
exists that a person has committed an offence, that person may be
placed in detention:
1. where circumstances justify a risk of absconding ...
...
3. special circumstances justify the suspicion that the
person concerned might reoffend
...”
Article 109
“(1) Until the delivery of the first-instance
judgment, detention on remand may last for a maximum of:
...
- 2. one year for offences carrying a sentence of a
statutory maximum of five years’ imprisonment;
...
(2) In cases where a judgment has been delivered but has
not yet entered into force, the maximum term of detention on remand
may be extended for one sixth of the term referred to in
subparagraphs 1 to 3 of paragraph 1 of this provision until the
judgment becomes final, and for one quarter of the term referred to
in subparagraphs 4 and 5 of paragraph 1 of this provision.
(3) Where the first-instance judgment has been quashed
on appeal, following an application by the State Attorney and where
important reasons exist, the Supreme Court may extend the term of
detention referred to in subparagraphs 1 to 3 of paragraph 1 of this
provision for another six months and the term referred to in
subparagraphs 4 and 5 of paragraph 1 of this provision for a further
year.
(4) Following the delivery of a second-instance judgment
against which an appeal lies, detention may last until the judgment
becomes final, for a maximum period of three months.
(5) A defendant placed in detention and sentenced to a
prison term by a final judgment shall remain in detention until he is
committed to prison, but for no longer than the duration of his
prison term.”
Article 367
“...
(2) A grave infringement of the Criminal Code shall be
constituted where a conviction is based on evidence as defined under
Article 9(2) of the present Code.
...”
Article 425
“(1) A defendant who has been finally sentenced to
a prison term ... may lodge a request for the extraordinary review of
a final judgment on account of infringements of this Act.
(2) A request for the extraordinary review of a final
judgment shall be lodged within a month after the final judgment has
been served on the defendant.
...”
Article 426
“The Supreme Court shall decide on requests for
the extraordinary review of a final judgment.”
Article 427
“A request for the extraordinary review of a final
judgment may be lodged [in respect of]:
...
2. An infringement of the rules of criminal procedure
under ... Article 367(2) of the present Code ...”
Pursuant
to Article 430 of the Code of Criminal Procedure, where the defendant
requests an amendment of a final judgment following a finding by the
European Court of Human Rights of a violation of, inter alia,
the right to a fair trial, the rules governing retrial shall apply.
The
relevant provisions of the Criminal Code (Kazneni zakon Republike
Hrvatske, Official Gazette 110/1997) read as follows:
THEFT
“Anyone who takes property belonging to another
person with the intention of unlawfully keeping it shall be fined or
sentenced to imprisonment for a term not exceeding three years.
...”
Article
217 provides that aggravated theft is punished with a term of
imprisonment of between six months and five years.
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, inter alia,
the right to life, physical and mental health, good reputation and
honour, the right to be respected, and the right to respect for one’s
name and for the privacy of personal and family life and freedom.
...”
Section 1046
“Damage is ... infringement of the right to
respect for one’s personal integrity (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), under the heading “Judicial Protection
Against Acts and Decisions of the Prison Administration”, read
as follows:
Section 17
“(1) An inmate may lodge a request for
judicial protection against any acts or decisions unlawfully refusing
him, or limiting, 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.”
The
relevant provisions of the Courts Act (Zakon o sudovima,
Official Gazette nos. 150/2005; 16/2007; 113/2008; 153/2009) read as
follows:
Section 14
“...
The Supreme Court of the Republic of Croatia is the
highest court in Croatia.
...”
Section 22
“The Supreme Court of the Republic of Croatia:
- ensures uniform implementation of laws;
- considers current issues concerning judicial practice;
...”
B. Relevant practice
In
its decision of 17 March 2009 (nos. U-III/4182/2008 and
U-III/678/2009) in the case of Robert Peša, concerning, inter
alia, the conditions of the pre-trial detention of the applicant
in that case in Zagreb Prison, the Constitutional Court found a
violation of Mr Peša’s right to humane treatment and to
respect for his dignity and also ordered the Government to adjust the
facilities at Zagreb Prison to the needs of detainees within a
reasonable time, not exceeding five years. It further held that a
complaint about the prison conditions to a judge responsible for the
execution of sentences under the Enforcement of Prison Sentences Act
was also to be used by persons in pre-trial detention. The relevant
part of this decision reads:
“20. ... the Constitutional Court
established the following binding legal opinion:
- the courts are obliged to apply the same procedures,
concerning requests for the protection of the rights of convicted
prisoners submitted to the judges responsible for the execution of
sentences, where such requests are lodged by persons placed in
pre-trial detention ...
...
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, and also 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).”
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 of
a person’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 OF THE CONVENTION
The
applicant complained that the conditions of his detention in Zagreb
Prison where he had been placed since 19 June 2007 had been inhuman.
He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Admissibility
1. The parties’ arguments
The
Government argued that the applicant had not exhausted available
domestic remedies. They maintained that he had not complained about
the conditions of his detention to a Zagreb County Court judge
responsible for the execution of sentences, to the prison authorities
or to the Central Prison Administration.
The
applicant argued that he did not need to exhaust domestic remedies
because the Constitutional Court had found that the conditions in
Zagreb Prison were inhuman and that the prison was overcrowded, and
that therefore no remedy would be effective.
2. The Court’s assessment
(a) General principles
The
Court 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).
In
accordance with Article 35 § 1 of the Convention, the Court may
only deal with a matter 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 not be compatible
with the subsidiary character of the Convention system (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).
(b) Application of these principles in the
present case
The
Court notes that in its decision of 17 March 2009, case nos.
U-III/4182/2008 and U-III/678/2009, the Constitutional Court
established that the remedies under the Execution of Prison Sentences
Act, namely a complaint to a judge responsible for the execution of
sentences, applied equally to convicted prisoners and to persons in
detention on remand.
Furthermore,
in the same decision the Constitutional Court itself found a
violation of the right of a detained person not to be exposed to
inhuman and degrading treatment as regards the prison conditions in
Zagreb Prison, the same one where the applicant is placed. Owing to
the conditions the Constitutional Court found to be in violation of
Article 3 of the Convention, it ordered the immediate release of the
person concerned, who then had the right to seek compensation from
the State.
In
its judgment Peša v. Croatia (no. 40523/08, 8 April
2010) the Court accepted that the findings of the Constitutional
Court together with a possibility of seeking compensation from the
State deprived the applicant in that case of his victim status in
connection with his complaint about the conditions in Zagreb Prison
under Article 3 of the Convention.
The
Court thus finds that, irrespective of the overcrowding of Zagreb
Prison, individual measures are available under the national law and
that therefore the available remedies have to be exhausted.
The Court notes that the applicant failed to submit his complaint
about the prison conditions to a judge responsible for the execution
of sentences or to the prison administration and in the case of an
unfavourable outcome he could have used further available remedies,
including a constitutional complaint in this respect (see Peša
v. Croatia, cited above, §§ 78-80). He therefore,
contrary to the principle of subsidiarity, failed to afford the
national authorities the possibility of remedying the situation he
has complained of to the Court.
It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained that on 19 June 2008 the statutory maximum
period for his detention had expired and that his detention after
that date had been unlawfully and arbitrarily extended, contrary to
Article 5 § 1 of the Convention, the relevant part of
which reads:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...”
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3(a) 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 pre-trial detention ordered against him in
both sets of criminal proceedings at issue should be viewed as a
whole and that already on 19 June 2008 the maximum period of
pre-trial detention allowed under national law had expired.
The
Government argued that the detention from 19 June 2007 to 19 June
2008 had been ordered in connection with the criminal proceedings
conducted under case file no. 2403/07 and that the maximum period of
detention expired on 19 June 2008 when the judge presiding over the
trial in these proceedings ordered the applicant’s immediate
release. However, he had remained in detention on the basis of a
detention order issued in the context of the other set of criminal
proceedings against him, conducted under case file no. 3257/05. In
respect of this detention order the maximum statutory period of
detention had not expired.
2. The Court’s assessment
(a) General principles
The
Court first observes that this case falls to be examined under
sub-paragraph (c) of Article 5 § 1, since the purpose of the
detention was to bring him before the competent legal authority on
reasonable suspicion of having committed an offence.
The
Court reiterates that Article 5 of the Convention guarantees the
fundamental right to liberty and security. That right is of primary
importance in a “democratic society” within the meaning
of the Convention (see De Wilde, Ooms and Versyp v. Belgium,
18 June 1971, § 65, Series A no. 12, and
Winterwerp v. the Netherlands, 24 October 1979, § 37,
Series A no. 33). Its key purpose is to prevent arbitrary
or unjustified deprivations of liberty (see McKay v. the United
Kingdom [GC], no. 543/03, § 30, ECHR 2006-... and
Ladent v. Poland, no. 11036/03, § 45, ECHR 2008 ...
(extracts)).
All
persons are entitled to the protection of that right, that is to say,
not to be deprived or continue to be deprived of their liberty (see
Weeks v. the United Kingdom, 2 March 1987, § 40,
Series A no. 114), save in accordance with the conditions specified
in paragraph 1 of Article 5. The list of exceptions set out in
Article 5 § 1 is an exhaustive one and only a narrow
interpretation of those exceptions is consistent with the aim of that
provision, namely to ensure that no one is arbitrarily deprived of
his or her liberty (see Amuur v. France, 25 June 1996, §
42, Reports 1996-III; Labita v. Italy [GC], no.
26772/95, § 170, ECHR 2000-IV; and Assanidze v. Georgia
[GC], no. 71503/01, § 170, ECHR 2004-II).
The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and enshrine the obligation
to conform to substantive and procedural rules thereof. Although it
is in the first place for the national authorities, notably the
courts, to interpret and apply domestic law, under Article 5 § 1
failure to comply with domestic law entails a breach of the
Convention and the Court can and should review whether this law has
been complied with (see, among many other authorities, Benham
v. the United Kingdom, 10 June 1996, § 41, Reports
1996-III, and Assanidze v. Georgia, cited above, §
171).
This primarily requires any arrest or detention to
have a legal basis in domestic law but also relates to the quality of
the law, requiring it to be compatible with the rule of law, a
concept inherent in all the Articles of the Convention (see Stafford,
cited above, § 63, and Kafkaris, cited above, § 116).
“Quality of the law” in this sense implies that where a
national law authorises deprivation of liberty it must be
sufficiently accessible, precise and foreseeable in its application,
in order to avoid all risk of arbitrariness (see Amuur v. France,
25 June 1996, § 50, Reports 1996-III; Nasrulloyev
v. Russia, no. 656/06, § 71, 11 October 2007; and
Mooren v. Germany [GC], no. 11364/03, §
76, 9 July 2009). The standard of “lawfulness” set by the
Convention thus requires that all law be sufficiently precise to
allow the person – if need be, with appropriate advice –
to foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail (see Steel and Others
v. the United Kingdom, 23 September 1998, § 54, Reports
1998-VII, and Baranowski v. Poland, no. 28358/95, § 52,
ECHR 2000-III).
Compliance
with national law is not, however, sufficient: Article 5 § 1
requires in addition that any deprivation of liberty should be in
keeping with the purpose of protecting the individual from
arbitrariness (see, among many other authorities, Winterwerp,
cited above § 37; Amuur, cited above, § 50; and
Witold Litwa v. Poland, no. 26629/95, § 78,
ECHR 2000-III). It is a fundamental principle that no detention which
is arbitrary can be compatible with Article 5 § 1 and the notion
of “arbitrariness” in Article 5 § 1
extends beyond lack of conformity with national law, so that a
deprivation of liberty may be lawful in terms of domestic law but
still arbitrary and thus contrary to the Convention (see Saadi v.
the United Kingdom [GC], no. 13229/03, § 67, ECHR
2008-... ).
(b) Application of these principles in the
present case
In
the instant case, the Court will first consider whether the
applicant’s detention was “lawful” and effected “in
accordance with a procedure prescribed by law”, as required by
Article 5 § 1 of the Convention. It notes that the first
detention order was issued on 20 November 2006. However, the
applicant was not placed in detention pursuant to that order but
remained at large. The order was not served on the applicant because
he was considered to be of an unknown address. As long as the
applicant was at large this detention order could not come into
effect.
The
applicant was arrested on 19 June 2007 in connection with a different
set of criminal proceedings pending against him before the same
Municipal Court, also on charges on theft. A second detention order
was issued on the same day and the applicant was placed in pre-trial
detention pursuant to that second detention order, which thus
immediately came into effect.
The
first detention order, issued on 20 November 2006, was served on the
applicant’s defence counsel on 17 March 2008. However, it did
not come into effect as long as the detention order of 19 June 2007,
although issued later, remained in effect.
Despite
the fact that only one of these two detention orders was in effect, a
situation was nevertheless created where two different detention
orders were issued in respect of the applicant in parallel criminal
proceedings pending against him before the same court, all on charges
of different counts of theft or aggravated theft.
When
on 19 June 2008 the statutory maximum period for the applicant’s
detention under the detention order, issued on 19 June 2007, expired,
the judge conducting the criminal proceedings in connection with
which this order had been issued, gave a decision stating that the
maximum statutory period of detention had been reached and ordered
the applicant’s immediate release. However, the applicant was
not released because the detention order issued on 20 November 2006
then immediately came into effect.
Turning
to the relevant provisions of the applicable domestic law, the Court
notes that the Code of Criminal Procedure contains no explicit
provision regulating such a situation. While section 109 governs
statutory maximum periods of detention for different offences,
depending on the sentence prescribed, it contains no provisions
concerning the maximum detention period on the basis of detention
orders adopted in parallel criminal proceedings.
Furthermore,
although the Government were explicitly asked to provide the Supreme
Court’s practice regarding the situation at issue, they have
not submitted any such material. The Court therefore concludes that
the lack of statutory regulation has not been remedied by the
practice of the Supreme Court.
The
absence of any statutory regulation of such a situation and any
relevant practice of the Croatian Supreme Court leaves open the
possibility for the applicable legislation on the maximum statutory
periods of detention to be circumvented.
The Court considers that to detain a person after the maximum
statutory period for his detention has expired, on the basis of a
detention order issued in parallel criminal proceedings, without such
detention being based on a specific statutory provision or clear
judicial practice, is incompatible with the principle of legal
certainty and arbitrary, and runs counter to the fundamental aspects
of the rule of law.
The
Court accordingly finds that the applicant’s detention between
19 June 2008 and 10 March 2009 was unlawful, in breach of the
provisions of Article 5 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained about the grounds for his detention and the
inefficient conduct of the proceedings by the national courts. He
relied on Article 5 § 3 of the Convention, the relevant part of
which reads:
“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
1. Detention in connection with the criminal
proceedings conducted under nos. 219/06; 2965/06; 2403/07; and 824/08
The
Court notes that in these proceedings the applicant was arrested on
19 June 2007 and placed in pre-trial detention. On 11 December 2007
he was found guilty and sentenced to one year and three months’
imprisonment.
The
first-instance judgment was partly quashed on 4 March 2008 and the
case was in that part remitted to the first-instance court, which
delivered a fresh judgment on 3 April 2009. However, in the meantime,
on 19 June 2008 the applicant’s detention in connection
with these proceedings was terminated.
The
present application was lodged with the Court on 25 March 2009,
that is to say more than six months after the applicant’s
pre-trial detention had ended.
It
follows that all complaints concerning the applicant’s
detention in connection with the proceedings at issue have been
introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
2. Detention in connection with the criminal
proceedings conducted under nos. 2730/07 and 3257/05
The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3(a) 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 national courts had repeatedly relied on
the same grounds for ordering and extending his detention without
taking into account new developments and that the conduct of the
proceedings by the national courts was not in accordance with the
requirements of Article 5 § 3 of the Convention.
The
Government argued that the reasons put forward by the national
authorities for ordering and extending the applicant’s
detention had been relevant and sufficient and thoroughly explained.
2. The Court’s assessment
The
Court notes that the issue to be examined under Article 5 § 3 of
the Convention is whether the grounds relied on by the national
authorities in the order for the applicant’s detention of 20
November 2006, which came into effect on 19 June 2008, and in all
subsequent decisions extending his detention, were relevant and
sufficient. However, the Court notes that it has already found that
the applicant’s detention after 19 June 2008 was arbitrary and
in contravention of Article 5 § 1 of the Convention. That
finding makes it redundant for the Court to further examine whether
the grounds for such detention were relevant and sufficient.
Against
that background and in view of the violation found under Article 5 §
1 of the Convention, the Court finds that it is not necessary to
examine further any complaint under Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The
applicant further complained that the proceedings concerning his
constitutional complaints against the detention orders issued against
him had not met the requirements of Article 5 § 4 of the
Convention, which reads as follows:
“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 part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3(a) 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 Constitutional Court had not examined three
of his constitutional complaints on the merits only because, in the
meantime, a fresh decision extending his detention had been adopted.
He further argued that the national courts had never addressed his
complaint that his detention after 19 June 2008 had been unlawful
because the statutory maximum period had expired.
The
Government maintained that the applicant’s detention had been
frequently reviewed by the competent courts of their own motion and
that the applicant had 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 Zagreb County Court
against each decision extending his detention and his appeals had
been speedily decided on.
The
applicant had also lodged several constitutional complaints. Pursuant
to section 32 of the Constitutional Court Act, the Constitutional
Court did not examine the merits of constitutional complaints against
decisions which were no longer in effect at the time when it came to
examine the complaints.
As
regards the complaint that the national courts had not addressed the
applicant’s arguments concerning the lawfulness of his
detention after 19 June 2008, the Government contended that the
proceedings before the Constitutional Court fell outside the scope of
Article 5 § 4 of the Convention because the Constitutional Court
was not a “court” within the meaning of that provision.
Furthermore,
the applicant’s constitutional complaint of 22 July 2008
had been lodged only two days before a fresh decision extending the
applicant’s detention had been adopted.
2. The Court’s assessment
At
the outset the Court reiterates that in a number of its decisions and
judgments concerning Croatia it has already examined various issues
about the fairness of the proceedings before the Constitutional Court
as well as issues concerning the rights guaranteed under Article 5 of
the Convention (see, for example, Janković v. Croatia (dec.),
no. 43440/98, ECHR 2000 X; Olujić v. Croatia, no.
22330/05, §§ 36 and 37, 5 February 2009; Oršuš
and Others v. Croatia [GC], no. 15766/03, §§ 108- 110,
ECHR 2010 ...; Peša v. Croatia, no. 40523/08,
§§ 112-126, 8 April 2010; and Hađi v. Croatia,
no. 42998/08, §§ 43-47, 1 July 2010). The Court does
not see any reason to deviate from this case-law in the circumstances
of the present case.
(a) Inadmissibility of the applicant’s
constitutional complaints
(i) 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).
(ii) Application of these principles in
the present case
The
Court firstly notes that under the relevant domestic law, after an
indictment has been lodged, detention must be judicially reviewed
every two months. The Court notes that in the present case the
lawfulness of the applicant’s detention was considered by the
Zagreb County Court and the Constitutional Court on many occasions.
However,
three of the applicant’s constitutional complaints were not
examined on the merits. Thus, the constitutional complaint of 22 July
2008 was declared inadmissible on 21 October 2008; the constitutional
complaint of 17 December 2008 was declared inadmissible on
19 February 2009; and the constitutional complaint of 17 April
2009 was declared inadmissible on 8 July 2009, each time on the
ground that the impugned decision was no longer in effect since, in
the meantime, a fresh decision extending detention had been adopted.
The Court therefore has to address the question of the compliance of
the above-mentioned Constitutional Court’s decisions with the
requirements of Article 5 § 4 of the Convention.
In
this connection the Court reiterates that, according to its case-law,
Article 5 § 4 enshrines, as does Article 6 § 1, the right
of access to a court, which can only be subject to reasonable
limitations that do not impair its very essence (see Shishkov v.
Bulgaria, no. 38822/97, §§ 82-90, ECHR 2003-I, and
Bochev, cited above, § 70).
Furthermore,
Article 5 § 4 does not compel the Contracting States to set up a
second level of jurisdiction for the examination of applications for
release from detention. Nevertheless, a State which institutes such a
system must in principle accord detainees the same guarantees on
appeal as at first instance (see Toth v. Austria, 12 December
1991, § 84, Series A no. 224; Rutten v. the
Netherlands, no. 32605/96, § 53, 24 July 2001; Lanz
v. Austria, no. 24430/94, § 42, 31 January 2002; and
Svipsta v. Latvia, no. 66820/01, § 129, ECHR
2006 III). The Court considers that the same applies in a system
which provides for a constitutional complaint against decisions
ordering and extending detention.
However,
the Croatian system, although allowing for a constitutional
complaint, leaves it to the Constitutional Court to await a fresh
decision on extension of detention and then to declare the complaint
against the previous decision on detention inadmissible. Thus,
although the applicant lodged a constitutional complaint against
three above-mentioned decisions of the Zagreb County Court, the
Constitutional Court did not decide on the merits of any of these
complaints but declared them all inadmissible because each time a
fresh decision on the applicant’s detention had been adopted in
the meantime.
In
the Court’s opinion, the Constitutional Court’s failure
to decide on the applicant’s constitutional complaints on the
merits made it impossible to ensure the proper and meaningful
functioning of the system for the review of his detention, as
provided for by the national law. By declaring the applicant’s
constitutional complaints inadmissible simply because a fresh
decision extending his detention had been adopted in the meantime,
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 Peša v. Croatia, no. 40523/08, § 126, 8
April 2010, and Hađi v. Croatia, no. 42998/08, §
47, 1 July 2010). Thus, that court 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.
(b) Failure of the appeal court and the
Constitutional Court to respond to the applicant’s arguments
The
Court reiterates that arrested or detained persons are entitled to a
review bearing upon the procedural and substantive conditions which
are essential for the “lawfulness”, in the sense of the
Convention, of their deprivation of liberty. This means that the
competent court has to examine “not only compliance with the
procedural requirements set out in [domestic law] but also the
reasonableness of the suspicion grounding the arrest and the
legitimacy of the purpose pursued by the arrest and the ensuing
detention” (see the Brogan and Others v. the United
Kingdom, 29 November 1988, § 65, Series A no. 145-B,
and Nikolova v. Bulgaria [GC], no. 31195/96, § 58,
ECHR 1999 II).
Turning
to the facts of the present case, the Court notes that in his appeal
of 1 September 2008, and in his constitutional complaint of
21 September 2008, both lodged in respect of the decision by the
Zagreb Municipal Court of 29 August 2008 extending his detention, the
applicant, relying on Article 5 of the Convention, argued that the
statutory maximum period for his detention had expired already on 19
June 2008 and that the conduct of the criminal proceedings against
him by the lower court had fallen short of the requirement of
efficiency.
He
put forward these same arguments in his appeal of 16 October
2008 and his constitutional complaint of 5 November 2008, both in
respect of a decision by the Zagreb Municipal Court of 10 October
2008 extending his detention.
He
repeated the same arguments also in his appeal of 15 January
2009 and his constitutional complaint of 30 January 2009, both in
respect of a decision by the Municipal Court of 12 January 2009
extending his detention.
However,
although in each of these instances both the Zagreb County Court on
appeal and the Constitutional Court examined the applicant’s
appeals and constitutional complaints on the merits, they never made
any comments on the above-stated arguments concerning the lawfulness
of the applicant’s detention.
While
Article 5 § 4 of the Convention does not impose an obligation on
a judge examining an appeal against detention to address every
argument contained in the appellant’s submissions, its
guarantees would be deprived of their substance if the judge, relying
on domestic law and practice, could treat as irrelevant, or
disregard, concrete facts invoked by the detainee and capable of
putting in doubt the existence of the conditions that are essential
for the “lawfulness”, in the sense of the Convention, of
the deprivation of liberty (see Nikolova, cited above, § 61,
and Farhad Aliyev v. Azerbaijan, no. 37138/06,
§ 209, 9 November 2010).
The
applicant’s submissions in the above-mentioned appeals and
constitutional complaints contained arguments connected with his
rights guaranteed under Article 5 of the Convention, namely that the
statutory maximum period for his detention had expired on 19 June
2008 and that the lower courts had failed to conduct the proceedings
with the requisite speediness. These arguments did not appear
implausible or frivolous. By not taking these submissions into
account the appeal court and the Constitutional Court failed to
provide judicial review of the scope and nature required by Article 5
§ 4 of the Convention.
There
has therefore been a violation of Article 5 § 4 of the
Convention also in the above respect.
IV. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3(c)
OF THE CONVENTION
The
applicant further complained that on two occasions he had been
questioned by the police without the presence of a defence lawyer and
that his trial had been unfair because his conviction had been based
to a decisive degree on the confession he had made to the police. He
relied on Article 6 §§ 1 and 3 (c) of the Convention,
the relevant part of which reads:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by an independent and impartial tribunal established by
law. ...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(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. As regards the applicant’s questioning by the
police on 20 June 2007
The
Court notes that the applicant was arrested on 19 June 2007 at 9.30
p.m. in order to be interviewed by the police in connection with
twenty-five counts of theft. However, the record of his questioning
states that it started on 20 June 2007 at 3 p.m. At a hearing held on
22 September 2008 the applicant also stated that he had been
questioned on the second day after his arrest, without specifying the
time of his questioning. In his later statements and appeals the
applicant repeatedly stated that he had been questioned by the police
on 20 June 2007 without the presence of a defence lawyer. In support
of his arguments he claimed that the lawyer S.S. had said that the
questioning lasted about an hour, but in the applicant’s view
this could not have been sufficient for him to consult with a lawyer
and give his defence orally in respect of twenty-five counts of theft
and for the police officer to dictate and the typist to type the
written record of his questioning.
However,
the applicant never explained what, according to him, was the exact
duration and manner of his questioning.
Furthermore,
the lawyer S.S. expressly said that he had been present during the
entire questioning on 20 June 2007, which had lasted for about an
hour.
In
these circumstances the Court finds that the applicant’s
complaint that on 20 June 2007 he had been questioned by the police
without the presence of defence counsel is insufficiently
substantiated.
Thus,
in the light of all the material in its possession the Court finds
that this part of the application does not disclose any appearance of
a violation of the rights and freedoms set out in the Convention or
its Protocols.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3(a) and 4 of the
Convention.
2. As regards the applicant’s questioning by the
police on 9 November 2005
(a) Exhaustion of domestic remedies
(i) The parties’ arguments
The
Government argued that the applicant had failed to exhaust domestic
remedies because he had not lodged a complaint against the police
officers in question, including a criminal complaint, or a complaint
to the Croatian Bar Association in respect of the lawyers concerned.
The
applicant maintained that he had exhausted all domestic remedies
available in the context of the criminal proceedings against him.
(ii) The Court’s assessment
The
Court points to the general principles as stated in paragraphs 173
and 174 above.
The
Court further notes that in respect of all issues pertaining to the
fairness of criminal proceedings the defendants may lodge an appeal
with an appeal court and a request for extraordinary review of a
final judgment. In its judgment in Maresti v. Croatia (no.
55759/07, §§ 23-28, 25 June 2009) the Court accepted that
such a request was a remedy to be exhausted, where it was allowed
under the relevant provisions of the Code of Criminal Procedure, on
the same grounds as those that an applicant is presenting before the
Court. The relevant part of that judgment reads:
“23. The Court firstly observes that
the actual name given to the proceedings in the domestic legal system
or the fact that the national jurisdictions have considered them as
an extraordinary remedy cannot be considered determinant: what is
decisive is the nature and the scope of the proceedings at issue (see
San Leonard Band Club v. Malta, no. 77562/01, § 41,
ECHR 2004-IX). Furthermore, it is the Court’s well-established
practice that the proceedings following an appeal on points of law or
an appeal for cassation fall within the scope of Article 6 § 1
of the Convention (see, for example, H.E. v. Austria, no.
33505/96, §§ 14 and 18, 11 July 2002, and Cobianchi v.
Italy (no. 1), no. 43434/98, §§ 8 and 11, 9 November
2000).
...
25. ... As to the nature of the proceedings
following a request for extraordinary review of a final judgment in a
criminal case, the Court observes that the Croatian Supreme Court
may, if it finds the request well-founded, quash the lower courts’
judgments and remit the case, or in certain cases even decide the
case itself. The reasons justifying extraordinary review of a final
judgment are expressly enumerated in Article 427 of the Code of
Criminal Procedure and are not subject to any discretionary decision
of the court. The remedy is available only to the defendant (not to
the prosecution) for strictly limited errors of law that operate to
the defendant’s detriment and is subject to a strict one-month
time limit following the service of the judgment on the defendant.
26. The request for extraordinary review has
its equivalent in civil proceedings in the form of an appeal on
points of law to the Supreme Court (revizija), which is also
lodged against a final judgment. In this connection, the Court notes
that it has already found that Article 6 is applicable to proceedings
concerning such an appeal (see Debelić v. Croatia,
no. 2448/03, §§ 21 and 22, 26 May 2005). As to the
criminal-law remedy at issue, the Court has in a previous case (Kovač
v. Croatia (no. 503/05, 12 July 2007)) taken into
consideration proceedings before the Supreme Court concerning a
request for extraordinary review of a final judgment by a defendant
in a criminal case.
27. ... The Court notes that the applicant’s
request was made on one of the prescribed grounds for finding an
infringement of the Criminal Code ...”
As
regards the present case, the Court notes that the applicant lodged
an appeal against the first-instance judgment of the Zagreb Municipal
Court. After his appeal had been dismissed by the Zagreb County
Court, the applicant lodged a request for an extraordinary review of
a final judgment with the Supreme Court.
In
his request for an extraordinary review, the applicant complained
that his statements given to the police on two occasions constituted
unlawful evidence because he had been questioned without the presence
of a lawyer and that, as such, those statements should not have been
used by the trial court. In this connection the Court notes that one
of the grounds under Article 427 of the Code of Criminal Procedure,
together with Article 367(2) and Article 9 of the same Code, for
lodging such a request exists when a conviction has been based on
unlawfully obtained evidence, and that this was exactly the
applicant’s claim.
In
these circumstances, the Court concludes that the proceedings
following the request for extraordinary review of the final judgment
were decisive for the determination of a criminal charge against the
applicant and so fall within the scope of Article 6 § 1
and that the applicant has properly exhausted regular domestic
remedies that were available in the context of the criminal
proceedings against him. He, therefore, did not need to exhaust any
further remedies. Accordingly, the Government’s objection must
be dismissed.
The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3(a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
applicant argued that he had been questioned by the police without
the assistance of a lawyer and that his confession thus obtained had
been fabricated by the police. Despite the fact that he had
repeatedly complained about that situation before the national
courts, showing that the lawyer E.Č. had not been present at his
questioning by the police, as was apparent from the discrepancy
between the time when the police record had been drawn up and the
time when he, the applicant, had been taken from Zagreb Prison to the
police interview, the national courts had nevertheless based his
conviction on his alleged confession.
The
Government argued that the applicant had had a fair trial and that
the applicant’s confession before the police had not been the
only evidence proving his guilt, since the trial court had heard
evidence from a number of injured parties and their statements had
been consistent with the applicant’s confession.
The
trial court had also heard evidence from the police officers and the
lawyer implicated and had established that the applicant had been
questioned by the police on 2 November 2005 in the presence of lawyer
E.Č.
2. The Court’s assessment
(a) Questioning of the applicant by the
police
(i) General principles
The
relevant principles have been set forth in the Grand Chamber judgment
in Salduz v. Turkey ([GC], no. 36391/02, 27 November 2008), as
follows:
“50. The Court reiterates that, even if
the primary purpose of Article 6, as far as criminal proceedings
are concerned, is to ensure a fair trial by a ‘tribunal’
competent to determine ‘any criminal charge’, it does not
follow that the Article has no application to pre-trial proceedings.
Thus, Article 6 - especially paragraph 3 – may be
relevant before a case is sent for trial if and so far as the
fairness of the trial is likely to be seriously prejudiced by an
initial failure to comply with its provisions (Imbrioscia,
cited above, § 36). As the Court has already held in its
previous judgments, the right set out in paragraph 3 (c) of Article 6
of the Convention is one element, amongst others, of the concept of a
fair trial in criminal proceedings contained in paragraph 1
(Imbrioscia, cited above, § 37, and Brennan, cited
above, § 45).
51. The Court further reiterates that
although not absolute, the right of everyone charged with a criminal
offence to be effectively defended by a lawyer, assigned officially
if need be, is one of the fundamental features of fair trial
(Poitrimol v. France, 23 November 1993, § 34,
Series A no. 277-A, and Demebukov v. Bulgaria, no.
68020/01, § 50, 28 February 2008). Nevertheless, Article 6
§ 3 (c) does not specify the manner of exercising this right. It
thus leaves to the Contracting States the choice of the means of
ensuring that it is secured in their judicial systems, the Court’s
task being only to ascertain whether the method they have chosen is
consistent with the requirements of a fair trial. In this respect, it
must be remembered that the Convention is designed to ‘guarantee
not rights that are theoretical or illusory but rights that are
practical and effective’ and that assigning counsel does not in
itself ensure the effectiveness of the assistance he may afford an
accused (Imbrioscia, cited above, § 38).
52. National laws may attach consequences to
the attitude of an accused at the initial stages of police
interrogation which are decisive for the prospects of the defence in
any subsequent criminal proceedings. In such circumstances, Article 6
will normally require that the accused be allowed to benefit from the
assistance of a lawyer already at the initial stages of police
interrogation. However, this right has so far been considered capable
of being subject to restrictions for good cause. The question, in
each case, has therefore been whether the restriction was justified
and, if so, whether, in the light of the entirety of the proceedings,
it has not deprived the accused of a fair hearing, for even a
justified restriction is capable of doing so in certain circumstances
(see John Murray, cited above, § 63; Brennan,
cited above, § 45, and Magee, cited above, § 44).
53. These principles, outlined in paragraph
52 above, are also in line with the generally recognised
international human rights standards (see paragraphs 37-42
above) which are at the core of the concept of a fair trial and whose
rationale relates in particular to the protection of the accused
against abusive coercion on the part of the authorities. They also
contribute to the prevention of miscarriages of justice and the
fulfilment of the aims of Article 6, notably equality of arms
between the investigating or prosecuting authorities and the accused.
54. In this respect, the Court underlines the
importance of the investigation stage for the preparation of the
criminal proceedings, as the evidence obtained during this stage
determines the framework in which the offence charged will be
considered at the trial (Can v. Austria, no. 9300/81,
Commission’s report of 12 July 1984, § 50, Series A no.
96). At the same time, an accused often finds himself in a
particularly vulnerable position at that stage of the proceedings,
the effect of which is amplified by the fact that legislation on
criminal procedure tends to become increasingly complex, notably with
respect to the rules governing the gathering and use of evidence. In
most cases, this particular vulnerability can only be properly
compensated for by the assistance of a lawyer whose task it is, among
other things, to help to ensure respect of the right of an accused
not to incriminate himself. This right indeed presupposes that the
prosecution in a criminal case seek to prove their case against the
accused without resort to evidence obtained through methods of
coercion or oppression in defiance of the will of the accused (see
Jalloh v. Germany [GC], no. 54810/00, § 100,
ECHR 2006-..., and Kolu v. Turkey, no. 35811/97, §
51, 2 August 2005). Early access to a lawyer is part of the
procedural safeguards to which the Court will have particular regard
when examining whether a procedure has extinguished the very essence
of the privilege against self-incrimination (see, mutatis
mutandis, Jalloh, cited above, § 101). In this
connection, the Court also notes the recommendations of the CPT
(paragraphs 39-40 above), in which the committee repeatedly
stated that the right of a detainee to have access to legal advice is
a fundamental safeguard against ill treatment. Any exception to
the enjoyment of this right should be clearly circumscribed and its
application strictly limited in time. These principles are
particularly called for in the case of serious charges, for it is in
the face of the heaviest penalties that respect for the right to a
fair trial is to be ensured to the highest possible degree by
democratic societies.
55. Against this background, the Court finds
that in order for the right to a fair trial to remain sufficiently
‘practical and effective’ (see paragraph 51 above)
Article 6 § 1 requires that, as a rule, access to a lawyer
should be provided as from the first interrogation of a suspect by
the police, unless it is demonstrated in the light of the particular
circumstances of each case that there are compelling reasons to
restrict this right. Even where compelling reasons may exceptionally
justify denial of access to a lawyer, such restriction - whatever its
justification - must not unduly prejudice the rights of the accused
under Article 6 (see, mutatis mutandis, Magee, cited
above, § 44). The rights of the defence will in principle
be irretrievably prejudiced when incriminating statements made during
police interrogation without access to a lawyer are used for a
conviction.”
(ii) Application of the above principles
in the present case
The
Court notes that the record of the applicant’s questioning
bears the date 2 November 2005. However, according to the findings of
the national courts the questioning took place on 9 November 2005 and
the date 2 November 2005 was a clerical error (see above, paragraph
138).
The
Court further notes that in the written record of the applicant’s
questioning it is recorded that lawyer E.Č. was called by the
police at 12.30 p.m. and that the interview ended on 1.30 p.m.
on 2 November 2005, which should presumably read 9 November 2005.
However,
whichever was the case, whether the lawyer E.Č. was allegedly
present between 12.30 p.m. and 1.30 p.m. either on 2 or 9 November
2005, the Court finds that he could not have attended the applicant’s
questioning by the police for the following reasons.
According
to the letter of 16 February 2009 from the Zagreb Prison Governor,
the applicant, who was in Zagreb Prison at the time, was taken out of
that prison for questioning in the Fifth Police Station on 9 November
2005 between 9.25 a.m. and 11.25 a.m. (see above, paragraph 134).
This was also accepted by the national courts. Thus it follows that
lawyer E.Č. was not present during the applicant’s
questioning, since he was called by the police at 12.30 p.m., and
even assuming that he arrived immediately at the Fifth Police
Station, at that time the applicant had already been returned to
Zagreb Prison.
The
question now remains whether the applicant waived his right to legal
counsel. In this connection the Court reiterates that neither the
letter nor the spirit of Article 6 of the Convention prevents a
person from waiving of his own free will, either expressly or
tacitly, the entitlement to the guarantees of a fair trial (see
Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November
2000). However, if it is to be effective for Convention purposes, a
waiver of the right to take part in the trial must be established in
an unequivocal manner and be attended by minimum safeguards
commensurate to its importance (see Sejdovic v. Italy [GC],
no. 56581/00, § 86, ECHR 2006-...; Kolu, cited
above, § 53; and Colozza v. Italy, 12 February
1985, § 28, Series A no. 89).
In
this connection the Court first observes that the applicant in the
present case complained from the initial stages of the proceedings
about the lack of legal assistance during his initial police
questioning. Furthermore, the Government have not claimed that the
applicant waived his right to be legally represented during the
police questioning. The Court therefore concludes that the applicant
did not waive his right to legal assistance during the police
interview.
Against
this background the Court finds that there has been a violation of
Article 6 §§ 1 and 3(c) of the Convention on account of the
applicant’s questioning by the police on 9 November 2005
without the presence of a defence lawyer.
(b) Use of the applicant’s alleged
confession to the police in his criminal trial
The
applicant further complained that the fact that his conviction was
based on his alleged confession given to the police without the
presence of defence counsel ran counter to the guarantees of a fair
trial under Article 6 § 1 of the Convention.
The
Court reiterates that its duty, according to Article 19 of the
Convention, is to ensure the observance of the engagements undertaken
by the Contracting States to the Convention. In particular, it is not
its function to deal with errors of fact or law allegedly committed
by a national court unless and in so far as they may have infringed
rights and freedoms protected by the Convention. While Article 6
guarantees the right to a fair hearing, it does not lay down any
rules on the admissibility of evidence as such, which is primarily a
matter for regulation under national law (see Schenk v.
Switzerland, 12 July 1988, §§ 45-46, Series A no. 140).
It
is therefore not the role of the Court to determine, as a matter of
principle, whether particular types of evidence - for example,
evidence obtained unlawfully in terms of domestic law - may be
admissible or, indeed, whether the applicant was guilty or not. The
question which must be answered is whether the proceedings as a
whole, including the way in which the evidence was obtained, were
fair. This involves an examination of the “unlawfulness”
in question ... (see Khan v. the United Kingdom, no. 35394/97,
§ 34, ECHR 2000 V, and Lisica v. Croatia, no.
20100/06, § 48, 25 February 2010).
In
the light of the above principles, the Court must determine whether
the domestic courts’ admission of statements obtained in the
absence of a lawyer during the applicant’s questioning by the
police impaired his right to a fair hearing.
The
Court notes that during the entire criminal proceedings in question
the applicant was unequivocal in his defence submissions that the
content of his alleged confession to the police had been fabricated
by the police. The Government denied these allegations and invoked
the national courts’ findings. The national courts based their
conclusion that the applicant was questioned in a lawyer’s
presence on the fact that a statement to this effect had been given
by State officials who had a duty to act in accordance with the laws
well known to them. However, the Court cannot endorse such a
conclusion in the light of the fact that the national courts failed
to examine the obvious discrepancy between the alleged time of the
presence of lawyer E.Č. and the time of the applicant’s
actual questioning (see above, paragraphs 255 and 256).
The
applicant had access to a lawyer after being remanded in custody and
during the ensuing criminal proceedings; he thus had the opportunity
to challenge the prosecution’s arguments. Nevertheless, as
noted above, in convicting the applicant the domestic courts admitted
in evidence statements which the applicant had subsequently retracted
and which had been obtained during police custody in the absence of a
lawyer. They based the applicant’s conviction to a significant
degree on this evidence. Thus, in the present case, the applicant was
undoubtedly affected by the restrictions on his access to a lawyer.
Neither the assistance provided subsequently by a lawyer, nor the
adversarial nature of the ensuing proceedings, could remedy the
defects which had occurred during the applicant’s custody (see
Salduz, cited above, § 58; Amutgan v. Turkey,
no. 5138/04, § 18, 3 February 2009; and Dayanan v.
Turkey, no. 7377/03, § 33, ECHR 2009 ...).
In
view of the foregoing, even though the applicant had the opportunity
to challenge the evidence against him at the trial and subsequently
on appeal, the admission of dubious evidence into the case file
affected the applicant’s right to a fair trial to a degree
incompatible with the requirements of Article 6 of the Convention.
There
has accordingly also been a violation of Article 6 § 1 of the
Convention on account of the admission of evidence given by the
applicant to the police without the presence of defence counsel and
the reliance on that evidence for the applicant’s conviction.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant complained under Article 6 § 2 of the Convention
that, by ordering his detention, the national courts had shown that
they had actually considered him guilty of the offences he had been
charged with, and under Article 14 of the Convention that he was
discriminated against on the basis of his social status, alleging
that the measure of detention had been ordered against him because he
had no property.
In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. It follows that it is inadmissible
under Article 35 § 3(a) as manifestly ill-founded and must
be rejected pursuant to Article 35 § 4 of the Convention.
VI. 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 20,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government considered that claim unfounded and in any event
excessive.
The
Court considers that the applicant suffered non-pecuniary damage as a
result of the violations found. The damage cannot be sufficiently
compensated for by a finding of a violation. Making its assessment on
an equitable basis, the Court awards the applicant EUR 9,000 in
respect of non-pecuniary damage, plus any tax that may be chargeable
on this amount.
The
Court also considers it necessary to point out that a judgment in
which it finds a violation of the Convention or its Protocols imposes
on the respondent State a legal obligation not just to pay those
concerned the sums awarded by way of just satisfaction, but also to
choose, subject to supervision by the Committee of Ministers, the
general and/or, if appropriate, individual measures to be adopted in
its domestic legal order to put an end to the violation found by the
Court and make all feasible reparation for the consequences of its
violation in such a way as to restore as far as possible the
situation existing before the breach. In the case of a violation of
Article 6 of the Convention, applicants should, to the fullest
extent possible, be put in the position they would have been in had
the requirements of the Convention not been disregarded (see Yanakiev
v. Bulgaria, no. 40476/98, § 89, 10 August 2006, and
Putter v. Bulgaria, no. 38780/02,
§ 61, 2 December 2010).
The Court notes that Article 430 of the Code of
Criminal Procedure provides for the possibility of reopening domestic
proceedings if the Court has found a violation of the Convention.
B. Costs and expenses
The
applicant also claimed EUR 2,000 for the costs and expenses incurred
before the Court.
The
Government considered that claim excessive.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award in full the sum claimed for the
proceedings before the Court, plus any tax that may be chargeable on
this amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Articles 5 §§
1, 3, and 4, and the complaints under Article 6 §§ 1 and
3(c) of the Convention, admissible, and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
5 § 1 of the Convention;
Holds that it is not necessary to examine the
complaint under Article 5 § 3 of the Convention;
Holds that there has been a violation of Article
5 § 4 of the Convention, both in respect of the Constitutional
Court’s decisions declaring the applicant’s
constitutional complaints about his detention inadmissible and in
respect of the failure of the appeal court and the Constitutional
Court to address the applicant’s arguments that the statutory
maximum period for his detention had expired and that the conduct of
the proceedings by the lower courts was inefficient;
Holds that there has been a violation of Article
6 §§ 1 and 3 (c) of the Convention on account both of the
applicant’s questioning by the police on 2 or 9 November 2005
without the presence of a defence lawyer and of the use of his
confession thus obtained in his criminal trial;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Croatian kunas at the rate applicable at the date of settlement:
(i) EUR
9,000 (nine thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 28 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
