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BERNOBIC v. CROATIA - 57180/09 [2011] ECHR 985 (21 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/985.html
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[2011] ECHR 985
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FIRST
SECTION
CASE OF
BERNOBIĆ v. CROATIA
(Application
no. 57180/09)
JUDGMENT
STRASBOURG
21 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 Bernobić v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly Kovler, President,
Nina
Vajić,
Peer Lorenzen,
Elisabeth
Steiner,
Khanlar Hajiyev,
Julia
Laffranque,
Linos-Alexandre Sicilianos, judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 57180/09) 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 Vedran Bernobić
(“the applicant”), on 12 October 2009.
The
applicant was represented by Ms L. Horvat, a lawyer practising in
Zagreb. The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. StaZnik.
On
10 September 2010 the President of the First Section decided to
communicate the complaint under Article 5 § 3 of the Convention
concerning the length of and the reasons for the applicant's
pre-trial detention; and the complaint concerning the conformity of
the procedure by which the applicant sought to challenge the
lawfulness of his detention with the requirements of Article 5 §
4 of the Convention. It was also decided to rule on the admissibility
and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1984 and lives in Konjščina.
1. Criminal proceedings against the applicant
On
24 October 2008 an investigation was opened in the Zagreb County
Court in respect of the applicant and seven other suspects in
connection with a suspicion that during 2007 and 2008 they had
committed the criminal offence of trafficking in illegal drugs such
as marijuana, speed and LSD.
On
the same date, an investigating judge of that court heard evidence
from four defendants, including the applicant, and on 13 November
2008 from a further two.
Further
hearings were held before the investigating judge on 14 November
and 15 December 2008, 12, 15, 29 and 30 January, 2, 12, and
17 February, and 9 March 2009 at which he heard evidence from
two defendants and nineteen witnesses.
On
21 April 2009 the applicant and seven other defendants were indicted
in the Zagreb County Court on charges of trafficking in illegal
drugs.
At
a hearing held on 19 June 2009 in the Zagreb County Court the
applicant confessed to the charges held against him.
2. Decisions on the applicant's detention
On
24 October 2008 the investigating judge remanded the applicant and
three other suspects in custody on the basis of Article 102
paragraph 1(2) of the Code of Criminal Procedure (risk of
suborning witnesses). Before adopting the decision the judge heard
the suspects concerned. The relevant part of the decision reads:
“The documents in the case file show that some of
the defendants, as well as witnesses whose evidence will be necessary
in the proceedings, know each other well. ...
The documents in the case file further show that
witnesses Z.Š. and J.H.Š. know the first, second and
third defendant ...
Since, in addition to the evidence from the witnesses,
the court will also have to hear evidence from defendants who have
not yet given it and are at large, there is a risk of pressure being
brought to bear on the witnesses and the co-accused by the first
defendant I.F., the second defendant T.S., the third defendant Vedran
Bernobić and the eighth defendant L.K., if at large, and a risk
of collusion in order to avoid their criminal liability.”
On
20 November 2008 the investigating judge extended the detention of
the four defendants, again on the basis of Article 102
paragraph 1(2) of the Code of Criminal Procedure (risk of
suborning witnesses). The relevant part of the decision reads:
“... the defendants I.F., T.S., Vedran Bernobić
and L.K. all know each other and are part of the same drug-dealing
and drug-using scene as J.M., who buys illegal drugs and is also the
boyfriend of L.K., and in view of the way the offences with which the
defendants have been charged were committed, and in particular in
respect of the first three defendants, it is necessary to hear
evidence from the witness J.M., who has so far avoided giving
evidence and whose evidence is relevant for establishing the facts in
issue.
It is to be concluded that the first defendant I.F., the
second defendant T.S., the third defendant Vedran Bernobić and
the eighth defendant L.K., if at large, would suborn the witness in
question ...
A hearing in this case is scheduled for 3 December 2008,
when it is expected that the witness concerned will give evidence in
view of the measures taken.”
On
21 November 2008 the applicant requested that his detention be
lifted, stating that he did not know the witness J.M. On 26 November
2008 he lodged an appeal against the decision of 20 November 2008. He
explained that witnesses Z.Š. and J.H.Š., who in the
previous decision on the applicants' detention had been identified as
those he might have suborned, had already given evidence which showed
that they did not know the applicant. He reiterated that he did not
know the witness J.M. and disputed the allegations in the decision
stating that he had been part of a drug-dealing and drug-using scene,
arguing that such allegations had not been based on any proof, nor
had it been proved that he knew the witness J.M. Furthermore, some of
the witnesses had stated that the witness J.M. had left Croatia and
therefore it was improbable that evidence would be taken from him in
the near future.
On
4 December 2008 a three-judge panel of the Zagreb County Court
dismissed the appeal. The relevant part of the decision reads:
“... there is a reasonable suspicion that the
third defendant committed the criminal offence contained in Article
173 paragraph 6 of the Criminal Code ... It is still necessary to
hear evidence from the witness J.M. in these proceedings, who had
allegedly been buying illegal drugs from the defendant. The documents
in the case file show, contrary to the arguments of the defendant ...
that the statement of this witness is relevant. Therefore, this panel
finds that there is a real risk of pressure being brought to bear on
the witnesses by the ... third defendant, if at large ...”
On
18 December 2008 the investigating judge extended the applicant's
detention on the basis of Article 102 paragraph 1(2 and 3) of the
Code of Criminal Procedure (risk of suborning witnesses and of
reoffending). The relevant part of the decision reads:
“The investigation will not be completed before
the detention order expires ... because it is necessary to hear
evidence from at least thirty witnesses, to carry out a full
toxicological examination of the confiscated drugs, prepare
telecommunication reports after an examination of all mobile
telephones and cards taken from the defendants as well as a computer
owned by the second defendant ... (it is also to be noted that the
investigating judge and his assistant are taking annual leave until
5 January 2009).
... the defendants I.F., T.S., Vedran Bernobić and
L.K. all know each other and are part of the same drug-dealing and
drug-using scene as J.M., who buys illegal drugs and is also the
boyfriend of L.K., and in view of the way the criminal offences with
which the defendants were charged were committed, and in particular
in respect of the first three defendants, it is necessary to hear
evidence from the witness J.M., who has so far avoided giving
evidence and whose evidence is relevant to the establishment of the
facts in issue. That witness did not attend a hearing on 15 December
2008. This court has been informed that a warrant to find and present
the witness has been issued (raspisana potraga) and that all
necessary measures will be taken to find the witness.
It is to be concluded that there is a risk that, if at
large, the ... the third defendant Vedran Bernobić might suborn
the witness ...
In their submissions of 25 November 2008 the Zagreb
County State Attorney's Office ... asked for the... third defendant
Vedran Bernobić to be remanded in custody under Article 102
paragraph 1(3) of the Code of Criminal Procedure as well.
This request ... is well-founded.
The Zagreb County State Attorney's Office asked that
some thirty witnesses give evidence, in respect of whom a separate
police report in the case file ... indicates that they had bought
illegal drugs from the ... third defendant, Vedran Bernobić, on
several occasions.
The time frame which concerns these defendants, as well
as the large number of buyers – about thirty – in respect
of which there is a reasonable suspicion that the defendants were
selling them various sorts of illegal drugs, leads to the conclusion
that there was a certain degree of organisation in trafficking in
illegal drugs and that those sales were a permanent source of income.
This is corroborated by the list of payments into the bank accounts
of the ... third defendant ... although he is not employed and has no
assets. Another indication is the large number of mobile telephones
and cards for such phones taken from the first and the second
defendants ...
...
The above circumstances, taken as a whole, show that ...
there is reason to believe that the ... third defendant, if at large,
might continue to commit the same or similar criminal offences ...”
On
9 January 2009 the applicant lodged an appeal. He argued that, as to
the danger of suborning witnesses, the court's conclusions had been
based on entirely unsupported statements that he had been part of the
same drug-dealing and drug-using scene as the other defendants and
witnesses. Contrary to these allegations, only one of the other
defendants had been known to him. He had never met the witness J.M.
and there had been no indication in the case file to the contrary.
As
regards the need to hear evidence from about a further thirty
witnesses, the applicant argued that only a few of these witnesses
were to give evidence concerning him and that the court had given no
explanation as to why it had considered that there was a risk that he
might suborn any of those witnesses. Furthermore, the names of these
witnesses had not been listed. The applicant argued that the Supreme
Court's practice required that the risk that witnesses would be
suborned had to be established by relevant facts and that relevant
explanations as to why there was such a risk had to be given, as well
as the names of the witnesses who might be suborned. The applicant
also argued that the witnesses in respect of whom the court had
previously established that risk had all, when finally heard, stated
that they did not know the applicant.
As
to the danger of reoffending, the applicant argued that it was not
clear why this ground had only been introduced in the latest decision
extending his detention. If such a danger had not existed at the time
of his arrest, there was no reason to believe that it would now
exist.
The
period during which the defendants had been followed by the police
had covered only a few months, and, if the transcripts of the
conversations recorded by the police were taken as relevant, there
were only five witnesses who had ever referred to the applicant. Even
if they were to be regarded as “buyers”, the fact that
they were so few in number could not in any way indicate that there
was a danger that the applicant, if at large, would continue with the
same criminal activity.
As
regards the payments of small amounts of money into his bank account,
the applicant explained that these had mostly been made by his father
and occasionally also by his mother and brother. The total sum of
payments during a period of eleven months was 7,500 Croatian
kuna (HRK), which did not appear to be a large sum.
As
regards the allegations concerning his unemployment, it was true that
he had not been permanently employed, but in July and August 2008 he
had started to work on a casual basis in the Carpe Diem student
hostel in Zagreb. The applicant also enclosed a letter from the
hostel's director informing him of an opportunity to continue working
at the hostel.
The
applicant further argued that he did not have a criminal record and
that the fact that he had no assets was not unusual for his age (he
was twenty-four at the time).
On
15 January 2009 a three-judge panel of the Zagreb County Court
dismissed the appeal. The relevant part of the decision reads:
“... there is a reasonable suspicion that the
third defendant committed the criminal offence of abusing illegal
drugs ... which is a basic condition for ordering and then extending
his detention. The witness J.M still has to give evidence in these
proceedings because, as the documents in the case file show, he has
knowledge relevant to these proceedings. Therefore, there is a risk
of pressure being put on that witness by the third defendant, if at
large...
Furthermore, the manner in which the third defendant
committed the criminal offence shows his resolve in acting illegally,
because he sold various types of illegal drugs on many occasions and
to a number of persons. Also, he is unemployed and has no regular
monthly income. The above factors taken as a whole amount to specific
circumstances which justify the risk that the third defendant, if at
large, might continue with the same illegal criminal activity. ...”
On
20 February 2009 the Zagreb County Court extended the applicant's
detention on the basis of Article 102 paragraph 1(3) of the Code of
Criminal Procedure (risk of reoffending). The relevant part of the
decision reads:
“The time frame which concerns these defendants,
as well as the large number of buyers – about thirty – in
respect of which there is a reasonable suspicion that the defendants
were selling them various sorts of illegal drugs, leads to the
conclusion that [the defendants showed] a certain degree of
organisation in trafficking in illegal drugs and about such sales as
a permanent source of income. This is corroborated by the list of
payments into the bank accounts of the ... third defendant ...
although he is not employed and has no assets. Another indication is
the large number of mobile telephones and cards for such telephones
taken from the first and second defendants ...”
On
26 February 2009 the applicant lodged an appeal, in which he argued
that the suspicion that he had committed the criminal offence at
issue had not been established. The only indication that he had been
connected with the sale of illegal drugs were transcripts of some of
his telephone conversations in which words such as “picture”
and “speed” were mentioned, which could not with
certainty be seen as referring to illegal drugs. The report drawn up
by an expert had showed that the powder found on him by the police
had not been an illegal drug. Furthermore, none of the more than
twenty witnesses already heard in the proceedings had mentioned the
applicant in connection with trafficking in illegal drugs.
The
police surveillance had lasted three months and the tapping of the
applicant's telephone had lasted for only fifteen days, which could
not be seen as a long period. The applicant also reiterated his
arguments from his previous appeals.
On
6 March 2009 a three-judge panel of the Zagreb County Court dismissed
the appeal. The relevant part of the decision reads:
“The time frame which concerns ... the third
defendant, as well as the large number of buyers in respect of which
there is a reasonable suspicion that the defendants were selling them
various sorts of illegal drugs, shows a high degree of criminal
resolve on [his] part... Furthermore, [he] is unemployed and has no
regular monthly income. The above factors, taken as a whole,
irrespective of the fact that [he] has no prior criminal record,
amount to specific circumstances which justify the risk that the ...
third defendant, if at large, might continue with the same illegal
criminal activity. ...”
On
6 April 2009 the applicant lodged a constitutional complaint, in
which he repeated arguments from his previous appeals.
On
21 April 2009 the Zagreb County Court extended the applicant's
detention on the basis of Article 102 paragraph 1(3) of the Code of
Criminal Procedure (risk of reoffending). The relevant part of the
decision reads:
“The fact that the indictment has been lodged
provides a sufficient degree of suspicion that the first, second,
third and eighth defendants committed the criminal offences alleged
therein ...
The factual background [of the indictment] indicates
that ... for a period of several months the defendants were selling
various types of illegal drugs and thus showed resolve in illegal
behaviour. ... all that, despite the fact that ... the third
defendant has no prior criminal record, indicates that there is a
justified risk that these defendants, if at large, might reoffend
...”
On
27 April 2009 the applicant lodged an appeal with the Supreme Court
in which, relying on Article 5 of the Convention, he argued that the
mere fact that the indictment had been lodged could not suffice to
establish reasonable doubt that he had committed the criminal offence
alleged therein. As regards the allegations about his criminal
resolve, the applicant pointed out that the charges in the indictment
referring to him alleged that he had sold illegal drugs to third
parties on two occasions and therefore that it could not be seen as a
high degree of criminal resolve on his part. He also argued that
there had not been any indications that he might reoffend.
On
29 April 2009 the Constitutional Court declared the complaint of
6 April 2009 inadmissible on the grounds that the impugned
decisions were no longer in effect, as a fresh decision on his
detention had meanwhile been adopted on 21 April 2009.
On
13 May 2009 the Supreme Court quashed the Zagreb County Court's
decision of 21 April 2009 on account of a procedural defect, namely
that the applicant's defence counsel had not been summoned to the
panel meeting when it was deliberating his detention. It noted that
neither the defendants' defence counsel nor the State Attorney had
been summoned to the panel session on 21 April 2009 because the case
file had been forwarded to the panel at 3.45 p.m. that day, that is
to say after regular working hours.
On
20 May 2009 a three-judge panel of the Zagreb County Court extended
the applicant's detention on the basis of Article 102
paragraph 1(3) of the Code on Criminal Procedure (risk of
reoffending). The relevant part of the decision reads:
“It is alleged in the indictment that ... in the
period between July and September 2008 the third defendant, Vedran
Bernobić, bought from an unknown person the illegal drugs LSD
and speed with the aim of selling them on to their final consumers.
He made further arrangements concerning the sale of the illegal drugs
on his mobile telephones with six other persons and with the fourth
defendant M.Š., to whom he on two occasions sold a package of
LSD.
The above described activity of ... the third defendant,
in view of the fact that this criminal activity took place over a
period of several months in which the defendants were selling various
types of illegal drugs, indicates a high degree of organisation and
criminal resolve. ... All that, despite the fact that ... the third
defendant has no prior criminal record, indicates that there is a
justified risk that these defendants, if at large, might reoffend.
...”
On
27 May 2009 the applicant lodged an appeal with the Supreme Court,
arguing that in the period between 21 April and 20 May 2009 he had
been detained without any decision ordering his detention because the
decision of the Zagreb County Court of 21 April 2009 had been quashed
by the Supreme Court on 13 May 2009. The decision of the Supreme
Court, while it quashed the decision extending the applicant's
detention, did not make a further detention order. A fresh detention
order was issued only on 20 May 2009 by the Zagreb County Court.
Therefore, in the period from 21 April to 20 May 2009 the
applicant should have been released.
He
further argued that there was no reasonable suspicion that he had
committed the criminal offences alleged in the indictment. The four
witnesses who had given evidence before the investigating judge and
who had been named in the indictment as the “final consumers”
had in no way implicated the applicant in drug trafficking. However,
this was not at all mentioned in the indictment. The impugned
decision in no way explained what constituted a reasonable suspicion
that the applicant had committed the criminal offence in question. No
reasons were given for the alleged risk that if at large he might
reoffend.
He
also argued that he had already spent seven months in detention and
that the measure of detention had become disproportionate to the
grounds for ordering it. In the applicant's view, the same purpose
could have been achieved by placing him under house arrest.
On
5 June 2009 the Supreme Court dismissed the appeal. The relevant part
of the decision reads:
“According to the indictment, there is a
reasonable suspicion that ... the third defendant, Vedran Bernobić,
committed the criminal offence contained in Article 173 paragraph 2
of the Criminal Code, by which the general statutory requirement for
ordering detention under Article 102 paragraph 1 of the Code of
Criminal Procedure has been satisfied.
...
The factual background of point 3 of the indictment
alleges that in the period between July and September 2008 the
defendant, Vedran Bernobić, bought the illegal drugs LSD and
amphetamines (speed) with the aim of selling them on to individual
consumers. He made arrangements for such sales with the six persons
identified in the indictment and on two occasions sold a package of
LSD to M.Š. ...
Thus described, the defendant's actions manifest
resolve, determination and persistence in repeating criminal
activity, all with the aim of securing material gain, especially in
view of the large number of persons with whom he negotiated sales,
the type of illegal drugs concerned and the period in which the
criminal activity took place.
The documents in the case file show that the defendant
has no steady employment and thus no steady income and no assets from
which he could draw income to meet his everyday needs.
All these circumstances in which the criminal activity
of the defendant Bernobić [took place], together with [his]
unemployment and poor financial situation, taken as a whole, amount
to specific circumstances showing that the defendant, if at large,
might reoffend, irrespective of the fact that he has no prior
criminal convictions.
...
The appeal allegations of ... the defendant, Vedran
Bernobić, as to the assessment of evidence and the degree of the
criminal offences being proved are not relevant for deciding on his
further detention because for such a decision ... the relevant degree
of reasonable suspicion suffices, and that suspicion is shown in the
indictment and the evidence presented so far.
Contrary to the arguments of the defendant, Vedran
Bernobić, neither the measure of house arrest nor other measures
under Article 90 of the Code of Criminal Procedure could satisfy the
same purpose as detention ...
The defendant's ... arguments concerning the issue of
proportionality are ill-founded. The test of balancing ... the
gravity of the criminal offence at issue ..., the likely punishment
and the need for extended detention on the one hand and the time the
defendant has already spent in detention on the other shows that the
principle of proportionality has not been disturbed ...
...
Contrary to the arguments of the defendant, Vedran
Bernobić, although the first-instance decision of 21 April 2009
extending the defendant's detention had been quashed by this court
... and the case was remitted, the first-instance court, in the
decision presently challenged, correctly extended the defendant's
detention under Article 107 paragraph 1 of the CCP because the
previous decision of this court did not quash the detention, [rather]
it was only the decision of the first-instance court which did [so].”
After
the applicant had confessed to the charges against him at a hearing
held on 19 June 2009, the Zagreb County Court ordered his release.
II. RELEVANT DOMESTIC LAW
The
relevant provisions of the Code of Criminal Procedure (Kazneni
zakon Republike Hrvatske, Official Gazette nos. 110/1997,
27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006)
read as follows:
8. General Provisions on Detention
Section 101
“(1) Detention may be imposed only if
the same purpose cannot be achieved by another [preventive] measure.
(2) The detention measure shall be lifted and
the detainee released as soon as the grounds for detention cease to
exist.
(3) When deciding on detention, in particular
its duration, the court shall take into consideration the
proportionality between the gravity of the offence, the sentence
which ... may be expected, and the need to order and determine the
duration of the detention.
(4) The judicial authorities conducting the
criminal proceedings shall proceed with particular urgency when the
defendant is being held in detention and shall review as a matter of
course whether the grounds and legal conditions for detention have
ceased to exist, in which case the custodial measure shall
immediately be lifted.”
9. Grounds for Ordering Detention
Section 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 ...;
2. if there is a risk that he or she might
destroy, hide, alter or forge evidence or traces relevant for the
criminal proceedings or might suborn witnesses, or where there is a
risk of collusion;
3. where special circumstances justify the
suspicion that the person concerned might reoffend ...
...”
Article 106
“(1) Detention ordered by an
investigating judge ... shall not exceed one month ...
(2) During the investigation the
investigating judge ... may, for justified reasons, extend detention
for the first time for a maximum of two months and then for a further
maximum of three months.
(3) The maximum duration of detention during
the investigation shall not exceed six months ...”
Article 107
“...
(2) After the indictment has been lodged ...
a [judicial] panel ... shall examine every two months whether the
statutory conditions for detention continue to exist ...”
Appeal against a decision ordering, lifting or
extending a custodial measure
Article 110
“(1) A defendant, defence counsel or
the State Attorney may lodge an appeal against a decision ordering,
extending or lifting a custodial measure, within two days thereof
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained that his detention between 13 and 20 May
2009 had not been covered by any decision, contrary to the
requirements of Article 5 § 1 of the Convention, which reads as
follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
A. Admissibility
The
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
The
applicant argued that when the appellate court quashed (owing to a
procedural error) the decision of 21 April 2009 extending his
detention on 13 May 2009, it had made no order as to his further
detention. A fresh decision ordering his detention had been issued by
the trial court on 20 May 2009. Thus, there had been no decision
in effect ordering his detention in the period between 13 and 20 May
2009 and therefore he should have been released in that period.
The
Government did not submit any observations on this point.
1. General principles
The
principles relevant for the examination of the applicant's complaint
under Article 5 § 1 of the Convention were set out by the Court
in the Mooren judgment (see Mooren v. Germany [GC], no.
11364/03, ECHR 2009 ...). The relevant passages read
as follows:
“(i) Recapitulation of the relevant
principles
72. Where the “lawfulness” of
detention is in issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention
refers essentially to national law and lays down the obligation to
conform to the substantive and procedural rules thereof. Compliance
with national law is not, however, sufficient: Article 5 § 1
requires in addition that any deprivation of liberty should be in
keeping with the purpose of protecting the individual from
arbitrariness (see, inter alia, Erkalo v. the Netherlands,
2 September 1998, § 52, Reports of Judgments and Decisions
1998 VI; Steel and Others v. the United Kingdom, 23
September 1998, § 54, Reports 1998 VII; and
Saadi v. the United Kingdom [GC], no. 13229/03, § 67,
ECHR 2008 ...). The Court must further ascertain in this
connection whether domestic law itself is in conformity with the
Convention, including the general principles expressed or implied
therein, notably the principle of legal certainty (compare Baranowski
v. Poland, no. 28358/95, §§ 51-52, ECHR 2000 III;
Ječius v. Lithuania, no. 34578/97, § 56, ECHR
2000 IX; and Nasrulloyev v. Russia, no. 656/06, §
71, 11 October 2007).
(α) Principles governing the
examination of compliance with domestic law
73. Although it is in the first place for the
national authorities, notably the courts, to interpret and apply
domestic law, under Article 5 § 1 failure to comply with
domestic law entails a breach of the Convention and the Court can and
should therefore review whether this law has been complied with (see,
inter alia, Benham v. the United Kingdom, 10 June 1996,
§ 41, Reports 1996 III; Baranowski, cited
above, § 50; Ječius, cited above, § 68; and
Ladent v. Poland, no. 11036/03, § 47, ECHR 2008 ...
(extracts)).
74. However, the Court has clarified,
particularly in its more recent case-law, that not every fault
discovered in a detention order renders the underlying detention as
such unlawful for the purposes of Article 5 § 1. A period of
detention is, in principle, “lawful” if it is based on a
court order. A subsequent finding of a superior domestic court that a
lower court erred under domestic law in making the order will not
necessarily retrospectively affect the validity of the intervening
period of detention (see, inter alia, Benham, cited
above, § 42; Douiyeb v. the Netherlands [GC],
no. 31464/96, § 45, 4 August 1999; Minjat v.
Switzerland, no. 38223/97, § 41, 28 October 2003; and
Khudoyorov v. Russia, no. 6847/02, § 128, ECHR 2005 X
(extracts)).
75. In its more recent case-law, the Court,
referring to a comparable distinction made under English law (compare
Benham, cited above, §§ 43-46; and Lloyd and
Others v. the United Kingdom, nos. 29798/96 and others, §§
102, 105 et seq., 1 March 2005), further specified the circumstances
under which the detention remained lawful in the said underlying
period for the purposes of Article 5 § 1: For the assessment of
compliance with Article 5 § 1 of the Convention a basic
distinction has to be made between ex facie invalid detention orders
– for example, given by a court in excess of jurisdiction (see
Marturana v. Italy, no. 63154/00, § 78, 4 March 2008) or
where the interested party did not have proper notice of the hearing
(see Khudoyorov, cited above, § 129; and Liu v.
Russia, no. 42086/05, § 79, 6 December 2007) – and
detention orders which are prima facie valid and effective unless and
until they have been overturned by a higher court (ibid.). A
detention order must be considered as ex facie invalid if the flaw in
the order amounted to a “gross and obvious irregularity”
in the exceptional sense indicated by the Court's case-law (compare
Liu, cited above, § 81; Garabayev v. Russia,
no. 38411/02, § 89, 7 June 2007, ECHR 2007 ... (extracts);
and Marturana, cited above, § 79). Accordingly, unless
they constitute a gross and obvious irregularity, defects in a
detention order may be remedied by the domestic appeal courts in the
course of judicial review proceedings.
(β) The required quality of domestic law
76. The Court must moreover ascertain whether
domestic law itself is in conformity with the Convention, including
the general principles expressed or implied therein. On this last
point, the Court stresses that, where deprivation of liberty is
concerned, it is particularly important that the general principle of
legal certainty be satisfied (see Baranowski, cited above, §§
51-52; Ječius, cited above, § 56; and Khudoyorov,
cited above, § 125). In laying down that any deprivation of
liberty must be “lawful” and be effected “in
accordance with a procedure prescribed by law”, Article 5 §
1 does not merely refer back to domestic law; like the expressions
“in accordance with the law” and “prescribed by
law” in the second paragraphs of Articles 8 to 11, it also
relates to the “quality of the law”, requiring it to be
compatible with the rule of law, a concept inherent in all the
Articles of the Convention. “Quality of the law” in this
sense implies that where a national law authorises deprivation of
liberty it must be sufficiently accessible, precise and foreseeable
in its application, in order to avoid all risk of arbitrariness (see
Amuur v. France, 25 June 1996, § 50, Reports 1996 III;
and Nasrulloyev, cited above, § 71).
(γ) Principles governing the notion of
arbitrary detention
77. No detention which is arbitrary can be
compatible with Article 5 § 1, the notion of “arbitrariness”
in this context extending beyond the lack of conformity with national
law. As a consequence, a deprivation of liberty which is lawful under
domestic law can still be arbitrary and thus contrary to the
Convention. While the Court has not previously formulated a global
definition as to what types of conduct on the part of the authorities
might constitute “arbitrariness” for the purposes of
Article 5 § 1, key principles have been developed on a
case-by-case basis. It is moreover clear from the case-law that the
notion of arbitrariness in the context of Article 5 varies to a
certain extent depending on the type of detention involved (see
Saadi, cited above, §§ 67-68).
78. One general principle established in the
case-law is that detention will be “arbitrary” where,
despite complying with the letter of national law, there has been an
element of bad faith or deception on the part of the authorities
(compare Bozano v. France, 18 December 1986, § 59,
Series A no. 111; and Saadi, cited above, § 69) or where
the domestic authorities neglected to attempt to apply the relevant
legislation correctly (see Benham, cited above, § 47;
Liu, cited above, § 82; and Marturana, cited
above, § 80).
79. Furthermore, in the context of
sub-paragraph (c) of Article 5 § 1, the reasoning of the
decision ordering detention is a relevant factor in determining
whether a person's detention must be considered as arbitrary. The
Court has considered the absence of any grounds given by the judicial
authorities in their decisions authorising detention for a prolonged
period of time to be incompatible with the principle of the
protection from arbitrariness enshrined in Article 5 § 1 (see
Stašaitis v. Lithuania, no. 47679/99, § 67,
21 March 2002; Nakhmanovich v. Russia, no. 55669/00, §
70, 2 March 2006; and Belevitskiy v. Russia, no.
72967/01, § 91, 1 March 2007). Conversely, it has found that an
applicant's detention could not be said to have been arbitrary if the
domestic court gave certain grounds justifying the continued
detention on remand (compare Khudoyorov, cited above, §
131), unless the reasons given are extremely laconic and without
reference to any legal provision which would have permitted the
applicant's detention (compare Khudoyorov, cited above, §
157).
80. Moreover, the Court has acknowledged
notably in the context of sub-paragraphs (c) and (e) of Article
5 § 1 that the speed with which the domestic courts replaced a
detention order which had either expired or had been found to be
defective is a further relevant element in assessing whether a
person's detention must be considered arbitrary. Thus, the Court
considered in the context of sub-paragraph (c) that a period of less
than a month between the expiry of the initial detention order and
the issuing of a fresh, reasoned detention order following a remittal
of the case from the appeal court to a lower court did not render the
applicant's detention arbitrary (see Minjat, cited above, §§
46 and 48). In contrast, a period of more than a year following a
remittal from a court of appeal to a court of lower instance, in
which the applicant remained in a state of uncertainty as to the
grounds for his detention on remand, combined with the lack of a
time-limit for the lower court to re-examine his detention, was found
to render the applicant's detention arbitrary (see Khudoyorov,
cited above, §§ 136-37).
81. In the context of sub-paragraph (e) of
Article 5 § 1, the Court considered that an interval of two
weeks between the expiry of the earlier order of detention in a
psychiatric hospital and the making of the succeeding renewal order
could in no way be regarded as unreasonable or excessive so that this
delay did not involve an arbitrary deprivation of liberty (see
Winterwerp v. the Netherlands, 24 October 1979, § 49,
Series A no. 33). In contrast, a delay of eighty-two days between the
expiry of the initial order of detention in a psychiatric institution
and its renewal and the lack of adequate safeguards to ensure that
the applicant's detention would not be unreasonably delayed was found
to be inconsistent with the purpose of Article 5 § 1 to
protect individuals from arbitrary detention (see Erkalo,
cited above, §§ 57-60 in respect of both sub-paragraphs (a)
and (e) of Article 5 § 1).”
2. Application of these principles in the present case
In
examining whether the applicant's detention was “lawful”
within the meaning of Article 5 § 1, including the issue of
whether “a procedure prescribed by law” was followed, the
Court will first review whether the applicant's detention complied
with Croatian law.
In
the present case, it has to be noted that starting from 24 October
2008 the national judicial authorities ordered and then periodically
extended the applicant's pre-trial detention in connection with the
criminal proceedings instituted against him on the grounds that there
was a risk that, if at large, he might suborn witnesses and reoffend.
However,
on 13 May 2009 the Supreme Court found that the detention order
issued by the Zagreb County Court on 21 April 2009 had failed to
comply with the formal requirements of domestic law laid down in
Article 105 § 1 of the Code of Criminal Procedure, as the court
had not properly summoned the defence lawyer. The detention order
thus suffered from a procedural defect, as it had been adopted
without the applicant's counsel being present.
The
Court reiterates that defects in a detention order do not necessarily
render the underlying detention “unlawful” for the
purposes of Article 5 § 1. The Court has to examine whether the
flaw in the order against the applicant amounted to a “gross
and obvious irregularity” so as to render the underlying period
of his detention unlawful (see Liu v. Russia,
no. 42086/05, § 81, 6 December 2007; Garabayev v.
Russia, no. 38411/02, § 89, 7 June 2007, ECHR 2007 VII
(extracts); Marturana v. Italy, no. 63154/00, §
79, 4 March 2008; and Mooren, cited above, § 84).
In
determining whether the detention order of 21 April 2009 suffered
from a “gross and obvious irregularity” so as to be ex
facie invalid, which would in turn render the applicant's
detention based on that order unlawful for the purposes of Article 5
§ 1, the Court will have regard to all the circumstances of the
case, including, in particular, the assessment made by the domestic
courts.
It
has not been alleged that the Zagreb County Court exceeded its
jurisdiction on 21 April 2009. Indeed, as a matter of domestic law,
it had the authority to order the applicant's detention in relation
to the criminal proceedings pending against him before that same
court. The detention order of 21 April 2009 was not quashed because
the County Court had not given reasons to justify the necessity of
holding the applicant in custody, but rather owing to a procedural
flaw. The Court notes that the County Court did not summon the
defence counsel to the panel session on 21 April 2009 because the
case file had been forwarded to the panel of that court at 3.45 p.m.
that day, that is to say after regular working hours. In these
circumstances, the Court considers that the procedural flaw in
question did not amount to a “gross or obvious irregularity”
in the exceptional sense indicated by the case-law (compare Lloyd
and Others v. the United Kingdom, nos. 29798/96 et seq., §
114, 1 March 2005).
Furthermore,
the Court does not find that the County Court acted in bad faith or
that it neglected to attempt to apply the relevant procedures
correctly. The fact that certain flaws in the procedure were found on
appeal does not in itself mean that the detention was unlawful (see
Gaidjurgis v. Lithuania (dec.), no. 49098/99, 16 January
2001; Benham v. the United Kingdom, 10 June 1996, § 47,
Reports of Judgments and Decisions 1996-III; and Liu,
cited above, § 82).
The
Court observes further that the Supreme Court quashed the decision of
21 April 2009 due to a procedural flaw. There is no doubt that an
appeal court is empowered to quash a decision subject to its review
and to remit the case for fresh examination. Indeed, as a matter of
domestic law, it had the authority to quash the first-instance
decision on detention under Article 398 (3) of the Code of Criminal
Procedure. As regards the Supreme Court's decision to maintain the
applicant's detention, the Court notes that in the reasoning of its
decision, the Supreme Court, as stated above, relied on formal
defects in the procedure leading to the impugned decision of the
County Court. On the other hand, the Supreme Court in no way
questioned the grounds for ordering the applicant's detention,
namely, the danger that he would reoffend. Furthermore, it in no way
called into question that there was a reasonable suspicion that the
applicant had committed a criminal offence. Thus, the Court accepts
that the Supreme Court's decision to maintain the applicant's
detention was based on these grounds. It can therefore be presumed
that the decision of the Supreme Court accepted the reasons given by
the County Court for maintaining the applicant's detention (see, Hađi
v. Croatia, no. 42998/08, § 32, 1 July 2010; and, a
contrario, Bakhmutskiy v. Russia,
no. 36932/02, § 112, 25 June 2009).
The Court has further acknowledged in previous cases
that the speed with which the domestic courts replace a detention
order which has either expired or been found to be defective is a
further relevant factor in assessing whether a person's detention
must be considered arbitrary (see Minjat v. Switzerland,
no. 38223/97, §§ 46 and 48, 28 October 2003; Khudoyorov
v. Russia, no. 6847/02, §§ 136-37, ECHR 2005 X
(extracts); and Mooren, cited above, § 95).
In
the present case, following the Supreme Court's decision of 13 May
2009 to remit the case to the County Court, the applicant remained in
custody until 20 May 2009, when the County Court issued a fresh
detention order which was adopted after a panel meeting in the
presence of defence counsel had been held. Thus, the period in
question amounted to seven days which, in the Court's view, appears
reasonable in the given circumstances. The Court also finds that the
time that elapsed between the Supreme Court's finding that the
detention order was defective and the issuing of a fresh detention
order by the County Court did not render the applicant's detention
arbitrary (see, by way of comparison, Mooren, cited above, §
96, and Hađi, cited above, § 34).
Having
regard to the foregoing, the Court concludes that the applicant's
detention was “lawful” and “in accordance with a
procedure prescribed by law” for the purposes of Article 5 §
1.
There
has therefore been no violation of Article 5 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained about the length of his pre-trial detention and
that the reasons for ordering and extending his detention had not
been relevant and sufficient. He relied on Article 5 § 3 of the
Convention 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
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 reasons relied on by the national courts
for ordering and extending his detention had not been relevant and
sufficient and that the national courts had not addressed his
arguments but rather had continued to extend his detention, always
relying on the same reasoning.
The
Government argued that the applicant's detention had lasted only
eight months and had been justified by a reasonable suspicion that he
had committed a criminal offence. The national courts had further
relied on danger of suborning witnesses and risk of reoffending, the
grounds which had been duly reasoned.
2. The Court's assessment
Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. Continued detention can
be justified in a given case only if there are specific indications
of a genuine requirement of public interest which, notwithstanding
the presumption of innocence, outweighs the rule of respect for
individual liberty (see, among other authorities, W. v.
Switzerland, 26 January 1993, § 30, Series A no. 254-A).
It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end, they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and the facts
raised by the applicant in his appeals that the Court is called upon
to decide whether or not there has been a violation of Article 5 §
3 of the Convention (see Labita v. Italy [GC], no. 26772/95, §
152, ECHR 2000 IV).
The persistence of reasonable suspicion that the
person arrested has committed an offence is a condition sine qua
non for the lawfulness of the continued detention, but after a
certain lapse of time it no longer suffices. In such cases, the Court
must establish whether the other grounds given by the judicial
authorities continued to justify the deprivation of liberty. Where
such grounds were “relevant” and “sufficient”,
the Court must also ascertain whether the competent national
authorities displayed “special diligence” in the conduct
of the proceedings (see Contrada v. Italy, 24 August 1998, §
54, Reports 1998-V; I.A. v. France, 23 September 1998,
§ 102, Reports 1998-VII; Toth v. Austria, 12
December 1991, § 67, Series A no. 224; and B. v. Austria,
28 March 1990, § 42, Series A no. 175).
As
to the present case, the Court notes that the period to be examined
under Article 5 § 3 of the Convention lasted from 24 October
2008 to 19 June 2009 when the applicant was released. It thus
amounted altogether to seven months and twenty-five days.
(a) Grounds for detention
Charged
with a serious drug-related offence, during the investigation the
applicant was considered by the domestic courts to pose a potential
risk of suborning witnesses and later on to pose an additional risk
of reoffending.
More
specifically, in the period between 24 October and 18 December
2008 the national authorities justified his detention on the grounds
that, if at large, he might suborn witnesses. Between 18 December
2008 and 20 February 2009 the applicant's detention was extended on
the grounds that there was both a risk of suborning witnesses and a
risk of reoffending, while between 20 February and 19 June 2006 the
applicant's detention was extended solely on the basis of the risk of
reoffending.
The
risk of suborning witnesses was justified by the fact that the
defendants, accused of trafficking in illegal substances, knew each
other and also socialised in the same scene as some of the witnesses.
After the witnesses had been heard, the national courts no longer
relied on that ground for the applicant's detention.
The
Court finds that the national authorities gave adequate and valid
reasons for the applicant's detention on this ground and explained
them with reference to the concrete circumstances of the case and the
evidence thus far obtained.
As
regards the other ground – the danger of reoffending, the Court
accepts that such a danger, if convincingly established, may lead the
judicial authorities to place and leave a suspect in detention in
order to prevent any attempts to commit further offences. It is
however necessary, among other conditions, for the danger to be a
plausible one and for the measure to be appropriate, in the light of
the circumstances of the case and, in particular, the past history
and the personality of the person concerned (see Clooth
v. Belgium, 12 December 1991, § 40, Series A no. 225).
The Court notes that the applicant was charged with
drug-trafficking and acting in an organised criminal group. When
assessing compliance with Article 5 § 3 of the Convention, it
will take into account the fact that the present case concerned a
member of a criminal group (Bąk v. Poland,
no. 7870/04, § 57, 16 January 2007).
The
Court further notes that the national courts stressed that the
prosecution had alleged that about thirty witnesses had bought
illegal drugs from the applicant, that there had been indications of
a certain degree of organisation in trafficking in illegal drugs and
that this had been a permanent source of income for the defendants.
They further noted that the applicant had not had any regular
employment or a regular monthly income. The national courts viewed
these circumstances, taken as a whole, as a serious indicator of a
risk that the applicant, if at large, might continue trafficking in
illegal drugs.
The
foregoing considerations are sufficient for the Court to conclude
that the grounds given for the applicant's pre-trial detention were
“relevant” and “sufficient” to justify
holding him in custody for the entire relevant period of seven months
and twenty-five days.
(b) Conduct of the proceedings
It
remains to be ascertained whether the national authorities displayed
“special diligence” in the conduct of the proceedings. In
this regard, the Court firstly notes that the case involved eight
defendants and that a large number of witnesses were to be heard,
which surely contributed to the length of the proceedings.
The
investigation was completed in a period of three months and
twenty-six days. During that period, the investigating judge held
eleven hearings and heard evidence from eight defendants and
seventeen witnesses. There were no significant delays.
As
regards the criminal trial against the applicant, the Court notes
that the applicant and seven other defendants were indicted on
21 April 2009 and the first hearing was held on 19 June 2009,
after which the applicant was immediately released. The Court is of
the opinion that a certain amount of time was necessary in order to
allow the trial court to prepare for the trial. In view of the volume
of the case file and the number of defendants, the Court takes the
view that the fact that the first hearing was held less than two
months after the indictment had been filed appears reasonable in the
circumstances.
The
Court considers that the conduct of the criminal proceedings by the
national authorities in the period in question complied with the
requirements of efficiency, and therefore that the domestic
authorities cannot be criticised for failing to observe “special
diligence” in the handling of the applicant's case.
There
has accordingly been no violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The
applicant further complained that neither he nor his counsel had been
heard by the judicial authorities when his detention had been ordered
and extended. He also complained that the Constitutional Court had
failed to examine the merits of his constitutional complaint. He
relied on Article 5 § 4 of the Convention which reads:
“4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful.”
A. Admissibility
1. Right to a hearing
(a) As regards the decisions ordering and
extending the applicant's detention taken between 24 October 2008 and
20 February 2009
The
Court notes that the applicant's detention was ordered on 24 October
2008 by the investigating judge assigned to the case. Before ordering
the applicant's detention, on 22 October 2008 the investigating judge
held a hearing and heard the applicant's defence. However, that
hearing was not held in connection with the detention order but
rather as a regular step in the investigation and solely concerned
the applicant's position as regards the charges held against him.
When
the applicant's detention was subsequently extended on 20 November
and 18 December 2008, as well as on 20 February 2009, neither the
applicant nor his counsel were heard at or even informed of the panel
session.
In
his subsequent appeals, however, the applicant did not raise the
issue of his right to a hearing in connection with the decisions on
his detention, and therefore it is to be taken that the final
decision in this respect was each of the decisions mentioned in
paragraph 81 above.
The
Court notes that the present application was lodged with it on
12 October 2009. It follows that this part of the application
has been introduced out of time and must be rejected in accordance
with Article 35 §§ 1 and 4 of the Convention.
(b) As regards the decision of 21 April
2009
When
the applicant's detention was extended on 21 April 2009 by a
three-judge panel of the Zagreb County Court, again neither the
applicant nor his counsel were present at or even informed of the
panel session. However, that decision was quashed by the Supreme
Court on 13 May 2009 on the ground that the defence counsel had not
been present. In the ensuing proceedings, when the Zagreb County
Court again extended the applicant's detention on 20 May 2009, his
counsel was present and heard. Thus, the requirement that the
applicant be represented at a hearing concerning the decision to
extend his detention was satisfied.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3(a)
and 4 of the Convention.
2. Failure of the Constitutional Court to decide the
applicant's complaint on the merits
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 by failing to decide his constitutional
complaint on the merits the Constitutional Court had not met the
requirements of Article 5 § 4 of the Convention.
The
Government made no comments.
2. The Court's assessment
(a) General principles
The
Court reiterates that the purpose of Article 5 § 4 is to assure
to persons who are arrested and detained the right to judicial
supervision of the lawfulness of the measure to which they are
thereby subjected (see, mutatis mutandis, De Wilde, Ooms
and Versyp v. Belgium, 18 June 1971, § 76, Series A no.
12, and Ismoilov and Others v. Russia, no. 2947/06, § 145,
24 April 2008). A remedy must be made available during a
person's detention to allow that person to obtain speedy judicial
review of the lawfulness of the detention, capable of leading, where
appropriate, to his or her release. The existence of the remedy
required by Article 5 § 4 must be sufficiently certain, not only
in theory but also in practice, failing which it will lack the
accessibility and effectiveness required for the purposes of that
provision (see, mutatis mutandis, Stoichkov v. Bulgaria,
no. 9808/02, § 66 in fine, 24 March 2005, and Vachev
v. Bulgaria, no. 42987/98, § 71, ECHR 2004 VIII). The
accessibility of a remedy implies, inter alia, that the
circumstances voluntarily created by the authorities must be such as
to afford applicants a realistic possibility of using the remedy
(see, mutatis mutandis, Čonka v. Belgium, no.
51564/99, §§ 46 and 55, ECHR 2002 I).
(b) Application of these principles in the
present case
The
Court firstly notes that under the relevant domestic law, detention
during an investigation must be reviewed by the investigating judge
after one month and then again after two months and three months
(Article 107 of the Code of Criminal Procedure). After the indictment
has been filed, an accused person's detention must be judicially
reviewed every two months. The Court notes that in the circumstances
of the present case the lawfulness of the applicant's detention was
considered by the domestic courts on many occasions.
The
applicant was able to lodge requests for his release. He was also
able to lodge an appeal against each decision of the investigating
judge ordering and extending his detention, as well as an appeal with
the Supreme Court against each decision of the Zagreb County Court
extending his detention. The Court
finds that the national courts periodically and automatically
reviewed the applicant's detention and gave reasons for its
extension. The applicant was also able to lodge a constitutional
complaint. However, the Court notes that the practice of the
Constitutional Court at that time was to declare inadmissible each
constitutional complaint where, before it has given its decision, a
fresh decision extending detention has been adopted in the meantime.
Thus, the applicant's constitutional complaint of 6 April 2009
against the Zagreb County Court's decision of 6 March 2009 was
declared inadmissible by the Constitutional Court on such grounds on
29 April 2009. The Court therefore
has to address the question of the compliance of the Constitutional
Court's decision 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 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, ECHR2003-I, and
Bochev v. Bulgaria, no. 73481/01, § 70,
13 November 2008).
Furthermore,
Article 5 § 4 does not compel the Contracting States to set up a
second level of jurisdiction for the examination of applications for
release from detention. Nevertheless, a State which institutes such a
system must in principle accord detainees the same guarantees on
appeal as at first instance (see Toth v. Austria, 12 December
1991, § 84, Series A no. 224; Rutten v. the Netherlands,
no. 32605/96, § 53, 24 July 2001; Lanz v. Austria,
no. 24430/94, § 42, 31 January 2002; and Svipsta v. Latvia,
no. 66820/01, § 129, ECHR 2006 III). The Court
considers that the same applies in a system which provides for a
constitutional complaint against decisions ordering and extending
detention.
However,
the Croatian system, although allowing for a constitutional
complaint, left it to the Constitutional Court to await a fresh
decision extending an applicant's detention and then to declare the
complaint against the previous decision on detention inadmissible.
Thus, although the applicant lodged a constitutional complaint
against the above-mentioned decision of the Zagreb County Court, the
Constitutional Court did not decide on its merits but declared it
inadmissible because a fresh decision on the applicant's detention
had meanwhile been adopted.
In
the Court's opinion, the Constitutional Court's failure to decide the
applicant's constitutional complaint 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 national law. By
declaring the applicant's constitutional complaint inadmissible
simply because a fresh decision extending his detention had meanwhile
been adopted, the Constitutional Court did not satisfy the
requirement “that the circumstances voluntarily created by the
authorities must be such as to afford applicants a realistic
possibility of using the remedy” (see Peša v.
Croatia, no. 40523/08, § 126, 8 April 2010; and Hađi,
cited above, § 47). Thus, it
fell short of its obligation under Article 5 § 4 of the
Convention to review the lawfulness of the applicant's detention.
There has accordingly been a violation of that provision.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 25,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government deemed the sum claimed excessive.
The
Court accepts that the applicant must have suffered some
non-pecuniary damage in connection with the failure of the
Constitutional Court to examine his complaints on the merits. In view
of the circumstances of the present case and ruling on an equitable
basis, the Court awards the applicant EUR 600 in respect of
non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed Croatian kuna (HRK) 122,385 for costs and
expenses incurred in the domestic proceedings and before the Court.
The
Government contested this claim.
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 were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers that the costs the applicant incurred in the proceedings
before the Constitutional Court are closely related to the violation
of the Convention alleged before the Court, and that the costs
incurred in respect of these proceedings may be taken into account in
assessing the claim for costs (see Scordino, cited above,
§ 28; and Medić v. Croatia,
no. 49916/07, § 50, 26 March 2009). Regard being had to
the information in its possession and the above criteria, the Court
awards the applicant EUR 2,000 for the costs and expenses incurred in
the domestic proceedings and before the Court, plus any tax that may
be chargeable to the applicant on that amount.
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Article 5 §§
1 and 3 of the Convention as well as the complaint under Article 5 §
4 of the Convention concerning the proceedings before the
Constitutional Court admissible and the remainder of the application
inadmissible.
Holds that there has been no violation of
Article 5 § 1 of the Convention;
Holds that there has been no violation of
Article 5 § 3 of the Convention;
Holds that there has been a violation of Article
5 § 4 of the Convention on account of the Constitutional Court's
failure to decide on the merits of the applicant's constitutional
complaint of 6 April 2009;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Croatian kunas at the rate applicable
at the date of settlement:
(i) EUR
600 (six hundred euros), plus any tax that may be chargeable to the
applicant, 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 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
