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You are here: BAILII >> Databases >> European Court of Human Rights >> ORAVEC v. CROATIA - 51249/11 (Judgment : Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae) No violation of Article 5 - Right to...) [2017] ECHR 650 (11 July 2017)
URL: http://www.bailii.org/eu/cases/ECHR/2017/650.html
Cite as: CE:ECHR:2017:0711JUD005124911, [2017] ECHR 650, ECLI:CE:ECHR:2017:0711JUD005124911
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    SECOND SECTION

     

     

     

     

     

    CASE OF ORAVEC v. CROATIA

     

     

    (Application no. 51249/11)

     

     

     

     

     

    JUDGMENT

     

     

     

     

    STRASBOURG

     

     

     

    11 July 2017

     

     

     

     

     

     

    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 Oravec v. Croatia,

    The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

              Julia Laffranque, President,
              Nebojša Vučinić,
              Paul Lemmens,
              Valeriu Griţco,
              Ksenija Turković,
              Stéphanie Mourou-Vikström,
              Georges Ravarani, judges,
    and Hasan Bakırcı, Deputy Section Registrar,

    Having deliberated in private on 13 June 2017,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE

    1.  The case originated in an application (no. 51249/11) 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 Stevan Oravec (“the applicant”), on 30 July 2011.

    2.  The applicant was represented by Mr D. Omrčen, a lawyer practising in Osijek. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

    3.  The applicant alleged that a decision ordering his detention issued on 10 June 2011 had not been lawful, and that the proceedings concerning his detention had not complied with the requirements of Article 5 §§ 3 and 4 of the Convention.

    4.  On 9 February 2015 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

    THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

    5.  The applicant was born in 1978 and lives in Osijek.

    1.  Criminal proceedings against the applicant

    6.  On 27 April 2011 the applicant was arrested on suspicion of trafficking illegal substances. On the same day an investigating judge of the Osijek County Court (Županijski sud u Osijeku) heard his evidence and ordered his pre-trial detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). The decision also stated that the detention could not exceed forty-eight hours.

    7.  On 28 April 2011 another investigating judge of the Osijek County Court summoned the applicant, who said that he would be remaining silent because he wanted to be represented by a lawyer, D.O. The judge issued a decision on opening an investigation against him and two other suspects, G.D. and I.D., on charges of trafficking illegal substances. He also ordered his detention for one month, referring to Article 104 § 1 and Article 102 § 1 (3) of the Code of Criminal Procedure. The applicant’s detention was ordered because G.D. had said that he had been buying illegal drugs from him. Furthermore, he was unemployed and another set of criminal proceedings on similar charges was pending against him. Following an appeal lodged by the applicant, on 3 May 2011 the decision on his detention was upheld by a three-judge panel of the Osijek County Court.

    8.  On 24 May 2011 the investigating judge ordered the applicant’s immediate release because G.D. had retracted his previous statement that he had been buying illegal drugs from him. Furthermore, the applicant had submitted documents showing that he had his own candle-making business. The applicant was released that same day. However, following an appeal lodged by the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku), on 26 May 2011 a three-judge panel of the Osijek County Court quashed that investigating judge’s decision and ordered him to re-examine the case.

    9.  On 31 May 2011 the investigating judge confirmed his previous decision. On 1 June 2011 the Osijek County State Attorney’s Office lodged an appeal, which was not communicated to the applicant or his counsel. It was argued that the risk of the applicant reoffending continued to exist for several reasons. Firstly, G.D. had given a detailed statement describing how he and I.D. had been buying illegal drugs from the applicant, and the evidence showed that the applicant had had frequent telephone contact with G.D. and I.D. Furthermore, G.D.’s retraction of his previous statement had been unconvincing. Secondly, the applicant had already been convicted of a similar offence, and another set of criminal proceedings concerning charges of trafficking illegal substances were pending against him. Thirdly, the evidence indicated that the applicant had been suspected of selling illegal substances over a longer period of time. Fourthly, he was unemployed and had no lawful means of subsistence.

    10.  On 10 June 2011 a three-judge panel of the Osijek County Court, composed of Judges D.K., A.B. and M.J., held a closed session in the parties’ absence. They reversed the investigating judge’s decision and ordered the applicant’s pre-trial detention under Article 102 § 1 (3) of the Code of Criminal Procedure. The decision did not set any time-limit for the detention.

    11.  On 14 June 2011 the applicant was again placed in pre-trial detention.

    12.  On 17 June he lodged an appeal with the Supreme Court against the decision of 10 June 2011. Judge M.R., acting as a single judge of the Osijek County Court, declared it inadmissible on 27 June 2011 on the grounds that it was not amenable to further appeal. This decision was upheld on 1 July 2011 by a three-judge panel of the same court, composed of Judges R.Š., A.R. and N.S.

    13.  On 6 July 2011 the Osijek County State Attorney’s Office indicted the applicant in the Osijek County Court on charges of trafficking illegal substances.

    14.  On 8 July 2011 a three-judge panel of the court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure. An appeal lodged by him against that decision was dismissed by the Supreme Court on 20 July 2011.

    15.  On 12 July 2011 the applicant lodged two constitutional complaints, about the decisions of 10 June and 1 July 2011 respectively (see paragraphs 10 and 12 above).

    16.  On 15 July 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the constitutional complaint about the decision of 10 June 2011 inadmissible, on the grounds that on 8 July 2011 a new decision extending the applicant’s detention had been adopted. It also declared his constitutional complaint about the decision of 1 July 2011 inadmissible, endorsing the lower courts’ reasoning (see paragraph 12 above).

    17.  On 18 October 2012 the Osijek County Court dismissed the indictment against the applicant because the prosecutor had withdrawn the charges against him. On 14 June 2012 the Supreme Court ordered his release.

    2.  Civil proceedings

    18.  On 15 April 2013 the applicant submitted a request for settlement with the Ministry of Justice in connection with his wrongful detention. A settlement was not reached.

    19.  On 1 August 2013 the applicant brought a claim in the Osijek Municipal Court against the State under Article 480 of the Code of Criminal Procedure, seeking non-pecuniary and pecuniary damages for his detention, which he claimed had been unfounded (neosnovan).

    20.  On 18 February 2014 the court allowed the applicant’s claim and awarded him 137,550 Croatian kunas (HRK - about 18,560 euros) in non-pecuniary damages. It held that his detention had been unfounded because a judgment dismissing the charges (presuda kojom se optužba odbija) had been adopted after the State Attorney’s Office had dropped the charges against him. The proceedings are still pending as regards the claim for pecuniary damages. The relevant part of the judgment reads:

    “The claimant’s claim is well founded in its entirety.

    The documents in the case file show that the claimant was finally acquitted of the charge [sic] that he had committed the criminal offence against the values protected by international law - abuse of illegal drugs, described and punishable under Article 173 § 2 of the Criminal Code in conjunction with section 41 of the Criminal Code Amendments Act (Official Gazette no. 71/06) by the Osijek County Court’s final judgment no. K-43/2012-86 of 18 October 2012.

    Further documents show that the claimant was actually detained in connection with the criminal proceedings against him for 393 days.

    The Osijek County Court’s decision no. Kv-138/2011-3 of 26 May 2011 (pages 16 and 17 of the case file) shows that the claimant had already been finally convicted by the Donji Miholjac Municipal Court of the criminal offence of abuse of illegal drugs under Article 173 § 1 of the Criminal Code, that is to say for an offence of the same type but in its basic form.

    Against the above background, this court considers that the claimant is to be awarded the amount of HRK 350 for each day he spent in detention, which in total amounts to HRK 137,550 since the claimant was detained without basis for 393 days.

    When assessing the adequate amount of [just] satisfaction, the Court has taken into account all the circumstances of this case: that the claimant was indicted for the criminal offence of abuse of illegal drugs, described and punishable under Article 173(2) of the Criminal Code in conjunction with section 41 of the Criminal Code Amendments Act; was deprived of his personal liberty for 393 days; [and] that the proceedings ended by the Osijek County Court’s judgment no. K-43/2012-86 of 18 October 2012 because the County State Attorney’s Office had withdrawn the charges.

    It is true that the claimant was previously convicted of the above-mentioned criminal offence. However, in the opinion of this court the sole fact that the claimant was previously convicted has no effect on the defendant’s obligation to compensate him for his unfounded deprivation of liberty, or his detention. Therefore, since the defendant has not proved that the claimant caused his arrest by some unlawful act such as absconding or concealing evidence, this court considers that there was no contribution on his part to the ordering of his detention.”

    II.  RELEVANT DOMESTIC LAW AND PRACTICE

    A.  Relevant domestic law

    1.  Constitution

    21.  The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) reads as follows:

    Article 22

    “Personal freedom and integrity are inviolable.

    No one shall be deprived of his liberty save in accordance with the law, and any deprivation of liberty must be examined by a court.”

    2.  Constitutional Court Act

    22.  The relevant parts of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) read as follows:

    Section 62

    “1.  Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person invested with public authority, on his or her rights and obligations or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government guaranteed by the Constitution (“constitutional right”) ...

    2.  If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.”

    Section 72

     “The Constitutional Court shall declare a constitutional complaint inadmissible if it does not have competence in the matter, or if [the complaint] is time-barred, incomplete, incomprehensible or inadmissible. The constitutional complaint is inadmissible if the relevant legal remedies have not been exhausted, that is, if the applicant has failed to use them in the proceedings before the lower courts, with the exception provided for in section 62 of this Act; the complaint has been lodged by a person not entitled to submit it; or if the complaint has been lodged by a legal entity not vested with constitutional rights.”

    3.  Code of Criminal Procedure

    23.  The relevant provision 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 and 62/2003) provides:

    Article 102

    “(1) Where a reasonable suspicion exists that a person has committed a criminal offence, he or she may be placed in detention if:

    ...

    (3) special circumstances justify the fear that [he or she] might reoffend ...

    ...”

    Article 103

    “1. Pre-trial detention shall be ordered and extended by a written court decision.

    2. A decision on pre-trial detention shall contain: ... time-limits for detention ...”

    Article 104

    “(1) After an investigation has been opened [a decision] ordering or cancelling detention may be adopted by an investigation judge. If this is at the request of a State attorney the ... judge shall decide the matter immediately and within twenty-four hours. If the ... judge does not agree with the request, he or she shall adopt a decision dismissing it against which the State attorney may appeal within forty-eight hours. The appeal has no suspensive effect and is to be decided by a panel ... within a further forty-eight hours.

    ...”

    Article 106

    “1. Detention ordered by an investigating judge or ... detention ordered for the first time during an investigation by a decision of a panel shall not exceed one month from the date [the detainee was] deprived of his liberty ...

    2. For justifiable reasons the investigating judge may, on his or her own motion or at the request of a State Attorney, extend detention for an initial period of no more than two months and then for periods of no more than three months.

     

    ...”

    Article 480

    “The following persons have the right to compensation:

    1. [a person] who was detained but ... the criminal proceedings ended by ... a judgment dismissing the charges ...

    ...

    3. who has been arrested or detained on the basis of erroneous or unlawful conduct on the part of a State body, ...”

    B.  Relevant practice

    24.   In decision no. U-III-5449/2013 of 13 January 2014, the Constitutional Court found that it should change its approach to cases where a constitutional complaint has been lodged about a decision on detention which has since been replaced by a new decision on detention before the Constitutional Court has ruled on the complaint. It considered that in view of the requirements under Article 5 § 4 of the Convention, such complaints should be examined on the merits. The relevant part of the decision reads:

    “6. The [Court’s] case-law concerning Croatia shows that the Constitutional Court is obliged to re-examine its case-law in line with the requirements under Article 5 § 4 [of the Convention]....

     The Constitutional Court is obliged, however, to align its practice with the requirements of Article 5 § 4 of the Convention. That means in the case at issue the Constitutional Court is obliged to examine on the merits the appellant’s complaints about the disputed decisions to extend his pre-trial detention, irrespective of the fact that those decisions were set aside ... before the termination of the proceedings before the Constitutional Court ...”

    THE LAW

    I.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

    25.  The applicant complained that no time-limit had been set in the decision of 10 June 2011 ordering his detention, that procedural safeguards had not been complied with in the proceedings before the Osijek County Court concerning his detention, and that the Constitutional Court had declared his constitutional complaint inadmissible. He relied on Article 5 §§ 1 (c) and 4 of the Convention. The relevant parts read 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:

    ...

    (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;

    ...

    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.  The parties’ arguments

    26.  The Government argued that the applicant was not a victim of the violations claimed and that his application was premature. After a judgment dismissing the charges against him had been adopted by the Osijek County Court, he had brought a civil action against the State for damages under Article 480 of the Code of Criminal Procedure. He had been awarded compensation in full at first instance and an appeal lodged by the State Attorney’s Office representing the State in those proceedings was pending before an appellate court. The first-instance judgment adopted in those civil proceedings had accepted that the applicant had been treated unjustly and the compensation awarded had concerned the whole period of his detention.

    27.  The Government also argued that Article 5 § 4 was not applicable to the proceedings at issue because these proceedings concerned an appeal lodged by the State Attorney’s Office and had not been instituted by the applicant. Further to this, the Government maintained that the applicant had not been detained at that time.

    28.  The applicant argued that the proceedings for damages pending before the domestic courts concerned neither his allegations that the decision of 10 June 2011 had been unlawful nor his further complaints under Article 5 § 4 of the Convention.

    29.  The applicant argued that Article 5 § 4 was applicable to the appeal proceedings instituted by the State Attorney’s Office.

    2.  The Court’s assessment

    (a)  The applicant’s victim status

    30.  The Court considers that the arguments raised by the Government in essence concern the question of whether a compensation claim under Article 480 of the Code of Criminal Procedure may be regarded as an effective remedy for the applicant’s complaints under Article 5 of the Convention. In this connection, the Court also notes that he put forward three distinct complaints under Article 5 §§ 1 and 4 of the Convention (see paragraph 25 above).

    31.  As to the applicant’s victim status, the Court reiterates that under Article 34 of the Convention it “may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see Burdov v. Russia, no. 59498/00, § 30, ECHR 2002-III, and Trepashkin v. Russia, no. 36898/03, § 67, 19 July 2007).

    32.  The Court also reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). Such acknowledgment and redress are usually the result of the process of exhaustion of domestic remedies (see Koç and Tambaş v. Turkey (dec.), no. 46947/99, 24 February 2005).

    33.  The Court has already held that where an applicant’s complaint of a violation of Article 5 § 1 of the Convention is mainly based on the alleged unlawfulness of his or her detention under domestic law, and where this detention has come to an end, an action capable of leading to a declaration that it was unlawful and to a consequent award of compensation is an effective remedy which needs to be exhausted if its practicability has been convincingly established (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 42, 6 November 2008, and Ławniczak v. Poland, no. 22857/07, § 41, 23 October 2012).

    34.  In the present case, the Court notes that the compensation to which the applicant is entitled under Article 480 of the Code of Criminal Procedure stems from the fact that after the prosecution dropped the charges against him, a judgment dismissing the charges was adopted. On those grounds, the Osijek Municipal Court found that the applicant’s detention had been unfounded and awarded him compensation.

    35.  However, in his complaint under Article 5 § 1 of the Convention the applicant argued that his detention had been unlawful because the decision ordering it had not set any time-limits. The Court notes that the judgment of the Osijek Municipal Court awarding him compensation did not address that specific complaint at all, or any other complaint concerning the lawfulness of his detention. While that court acceded to the applicant’s claim for compensation for unjust detention, it based its decision on Article 480(1) of the Code of Criminal Procedure which affords a right to reparation to anyone against whom charges have been dismissed (see paragraph 23 above). The detention was deemed to be “unfounded” only because the charges against the applicant had been dismissed, and an award under Article 480(1) of the Code of Criminal Procedure does not amount to a finding that the detention did not satisfy the requirements of Article 5 of the Convention. While it is true that the length of the applicant’s detention pending trial was taken into account in calculating the amount of reparation, there is no acknowledgment in the judgment concerned, either express or implied, that it had been unlawful because of the reasons put forward by the applicant. It cannot therefore be said that the proceedings for compensation under Article 480 § 1 of the Code of Criminal Procedure represented an effective remedy for the applicant’s complaint about the lawfulness of the decision of 10 June 2011, which did not contain a time-limit (see, mutatis mutandis, Labita v. Italy [GC], no. 26772/95, § 144, ECHR 2000 IV).

    36.  It is also clear that these proceedings did not in any manner address the applicant’s complaints under Article 5 § 4 of the Convention.

    37.  The Court also notes that the domestic authorities, in accordance with the principle of subsidiarity, had the opportunity to address the same complaints that the applicant is now presenting before the Court when they examined the remedies he used in respect of the decision ordering his detention, such as his constitutional complaint.

    38.  In conclusion, the Court considers that despite the payment of a sum as reparation for non-pecuniary damage for the time he had spent in detention pending trial, the applicant can still claim to be a “victim” within the meaning of Article 34 of the Convention of the violations claimed. For the same reason, the fact that his claim for pecuniary damages arising out of the detention is still pending cannot render his complaint premature. Accordingly, the Court concludes that in the particular circumstances of this case the Government’s objection must be dismissed.

    (b)  Applicability of Article 5 § 4 to the appeal proceedings in the present case

    39.  The Court considers that this issue is closely linked to the substance of the applicant’s complaint under Article 5 § 4 and must therefore be joined to the merits.

    (c)  Conclusion

    40.  The Court notes that 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.  Article 5 § 1 of the Convention

    (a)  Submissions of the parties

    41.  The applicant argued that the decision adopted by the three-judge panel of the Osijek County Court on 10 June 2011 had not been lawful because it had not set a time-limit for his detention.

    42.  The Government argued that the applicant’s detention had been ordered and extended in accordance with the relevant rules of criminal procedure and had therefore been lawful. The impugned decision of 10 June 2011 had been adopted by a competent court. Even though that decision had not set a time-limit for the applicant’s detention, that was prescribed by law, namely Article 106 § 2 of the Code of Criminal Procedure, which stipulated two months.

    (b)  The Court’s assessment

    (i)  General principles

    43.  The Court observes that this case falls to be examined under sub-paragraph (c) of Article 5 § 1, since the purpose of the applicant’s detention was to bring him before the competent legal authority on reasonable suspicion of having committed an offence.

    44.  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-X, and Ladent v. Poland, no. 11036/03, § 45, 18 March 2008).

    45.  The Court reiterates that the terms “lawful” and “in accordance with a procedure prescribed by law” used in Article 5 § 1 of the Convention essentially refer back to domestic law and state the obligation to conform to the substantive and procedural rules thereof (see Mooren v. Germany [GC], no. 11364/03, § 72, 9 July 2009).

    46.  It is in the first place for the domestic authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with. A period of detention will in principle be lawful if it is carried out pursuant to a court order (see Douiyeb v. the Netherlands [GC], no. 31464, §§ 44-45, 4 August 1999; and Mooren, cited above, § 74).

    47.  The Court must therefore ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, it stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. In laying down that any deprivation of liberty must 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 Articles of the Convention. “Quality of law” in this sense implies that where a domestic 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, cited above, § 50, Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III, Ječius v. Lithuania, no. 34578, § 56, ECHR 2000-IX, Khudoyorov v. Russia, no. 6847/02, § 125, ECHR 2005-X (extracts), and Ismoilov and Others v. Russia, no. 2947/06, § 137, 24 April 2008).

    48.  Compliance with domestic 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, Mooren, cited above § 72; 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 domestic 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).

    (ii)  Application of these principles to the present case

    49.  The Court further notes that in the decision of 10 June 2011, a three-judge panel of the Osijek County Court reversed the investigating judge’s decision and ordered the applicant’s pre-trial detention without setting any time-limit. The question arises whether the absence of any time-limit for the applicant’s detention rendered it “unlawful”, contrary to the requirements of Article 5 § 1.

    50.  In examining whether the applicant’s detention was “lawful” within the meaning of Article 5 § 1, the Court will first review whether it complied with Croatian law.

    51.  The applicant’s only complaint as to the lawfulness of his detention ordered on 10 June 2011 by a three-judge panel of the Osijek County Court was that no time-limit had been set in that decision.

    52.  The Court notes that Article 103 of the Code of Criminal Procedure, which prescribes the content of decisions on detention, clearly provides that a time-limit for detention has to be set in the decision. It therefore concludes that the decision of 10 June 2011 was not in accordance with Article 103 § 2.

    53.  The Court notes however that Article 106 § 1 of the Code of Criminal Procedure prescribes that the detention ordered during investigation should initially not exceed one month. At this juncture it reiterates that it is essential that the applicable domestic law meets the standard of “lawfulness” set by the Convention, which requires that all law, whether written or unwritten, be sufficiently precise to allow the citizen - 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.

    54.  Given that Article 106 §§ 1 and 2 of the Code of Criminal Procedure clearly prescribes the maximum duration of detention during an investigation, the applicant should have known, particularly since he was already at that stage of the proceedings represented by a lawyer, that his detention ordered by the three-judge panel of the Osijek County Court, after his release by the investigating judge, should not exceed the time-limits set by law. These time limits were one month for the initial detention, two months for the first extension and three months for a further extension, thus setting the maximum limit at six months (see paragraph 23 above). The Court therefore accepts that the County Court implicitly set the time-limit for the applicant’s detention at a further two months (compare Zuyev v. Russia, no. 16262/05, § 74, 19 February 2013). The Court also notes that after that decision the applicant was detained for a period shorter than two months since before that period expired he had already been indicted and a subsequent decision extending the applicant’s detention was adopted on 8 July 2011.

    55.  In the Court’s view, therefore, the failure of a three-judge panel of the Osijek County Court to set a time-limit for the applicant’s detention in its decision of 10 June 2011 did not in itself render the applicant’s detention unlawful, in view of the maximum duration of detention prescribed under Article 106 § 1 of the Code of Criminal Procedure (see Douiyeb, cited above, §§ 51-54; Nikolov v. Bulgaria, no. 38884/97, § 63, 30 January 2003; and Dinç and Çakır v. Turkey, no. 66066/09, §§ 47-54, 9 July 2013).

    56.  The Court has to ascertain further whether the applicant’s detention was arbitrary (see paragraph 45 above).

    57.  In this connection, the Court notes that the applicant’s detention was ordered by a three-judge panel of the Osijek County Court on 10 June 2011. That panel reversed a decision to confirm the applicant’s release, issued by an investigating judge of the same court. As a matter of domestic law, it had the authority to order the applicant’s detention in relation to the pending criminal proceedings against him. Article 104 § 1 of the Code of Criminal Procedure provides that after a decision to open an investigation has been adopted, a detention order may be issued by an investigating judge at the request of a State Attorney’s office. If an investigating judge denies that request, the State Attorney’s office has the right to appeal to a three-judge panel of a competent county court, as provided for under Article 20 of the Code of Criminal Procedure.

    58.  The applicant’s detention was ordered on the grounds that there was a risk of him reoffending, as set out in Article 102 § 1 (3) of the Code of Criminal Procedure.

    59.  In adopting the decision of 10 June 2011, a three-judge panel of the Osijek County Court exercised its judicial authority under Article 104 § 1 and Article 20 of the Code of Criminal Procedure.

    60.  There was therefore a court order for the applicant’s detention adopted by a judicial body in the exercise of its competence as defined by law and on grounds clearly provided for by domestic law (contrast Khudoyorov, cited above, §§ 145 et seq., and Lebedev v. Russia, no. 4493/04, § 57, 25 October 2007).

    61.  Against the above background, the Court finds that the applicant’s detention order issued by a three-judge panel of the Osijek County Court on 10 June 2011 was lawful within the meaning of Article 5 § 1 of the Convention. Accordingly, there has been no violation of that provision in the circumstances of the present case.

    2.  Article 5 § 4 of the Convention

    (a)  Decision of the Osijek County Court of 10 June 2011

    (i)  Submissions of the parties

    62.  The applicant argued that he had not been given an opportunity to be heard by the Osijek County Court, which had ordered his detention. He had not thus had a chance to advance his arguments. He also submitted that the appeal lodged by the Osijek County State Attorney’s Office against the investigating judge’s decision refusing to order the applicant’s detention had not been communicated to the defence. In his view, such conduct of the appeal proceedings violated the principle of equality of arms.

    63.  The Government argued that the proceedings before the Osijek County Court concerning the applicant’s detention had been conducted in compliance with all the procedural guarantees under Article 5 of the Convention. The applicant had had the opportunity to present all his arguments at the stage of proceedings before the investigating judge. The proceedings before the Osijek County Court had only been a continuation of these proceedings, since that court had decided the appeal lodged by the prosecution against a decision issued by the investigating judge.

    (ii)  The Court’s assessment

    64.  The Court first reiterates that, under Article 5 § 4 of the Convention, 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 (see Lietzow v. Germany, no. 24479/94, § 44, ECHR 2001-I). It is true that the provision in question does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention and for hearing applications for release. Nevertheless, a State which institutes such a system must in principle accord to the detainees the same guarantees on appeal as at first instance (see Fodale v. Italy, no. 70148/01, § 39, ECHR 2006-VII).

    65.  The Court notes that at the time the appeal by the State Attorney’s Office was lodged the applicant was not held in custody. The applicant’s detention was lifted at first instance by an investigating judge and he was released pursuant to the order of the investigating judge of 31 May 2011, confirming his earlier order of 24 May 2011. However, the decision of the investigating judge was subject to further review by a three-judge panel of a county court following an appeal and was therefore not final. An appeal was in fact lodged by the State Attorney’s Office against the investigating judge’s decision ordering the applicant’s release (see paragraph 10 above). In calling for that decision to be quashed, the prosecutor’s office sought, through the appeal proceedings, to have the initial detention order upheld. In the case the prosecution’s appeal was dismissed the decision to release the applicant would become final; since it was accepted, the applicant was again placed in custody. The appeal thus represented a continuation of the proceedings relating to the lawfulness of the applicant’s detention. In those circumstances, the Court considers that the outcome of the appeal proceedings was a crucial factor in the decision as to the lawfulness of the applicant’s detention, irrespective of whether at that precise time the applicant was or was not held in custody. It cannot therefore subscribe to the Government’s argument that Article 5 § 4 was not applicable to the appeal proceedings before the Osijek County Court when it ruled on the appeal by the public prosecutor’s office (compare to Fodale, cited above, § 40). Their objection in that respect therefore has to be dismissed.

    66.  The Court further reiterates that a court examining an appeal against a decision related to detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, that is, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order to challenge effectively the lawfulness of his client’s detention. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see, among other authorities, Lamy v. Belgium, 30 March 1989, § 29, Series A no. 151; Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999-II; and Fodale, cited above, § 41).

    67.  These requirements are derived from the right to an adversarial trial as laid down in Article 6 of the Convention, which means, in a criminal case, that both the prosecution and the defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. According to the Court’s case-law, it follows from the wording of Article 6 - and particularly from the autonomous meaning to be given to the notion of “criminal charge” - that this provision has some application to pre-trial proceedings (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275). It thus follows that, in view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should in principle also meet, to the largest extent possible under the circumstances of an ongoing investigation, the basic requirements of a fair trial, such as the right to an adversarial procedure. While national law may satisfy this requirement in various ways, whatever method is chosen should ensure that the other party will be aware that observations have been filed and will have a real opportunity to comment thereon (see Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001, and Fodale, cited above, § 42).

    68.  In the present case, the Court notes that in its appeal against the investigating judge’s decision ordering the applicant’s release, lodged on 1 June 2011, the Osijek County State Attorney’s Office advanced numerous reasons for ordering the detention (see paragraph 9 above). That appeal was not communicated to the defence. Thus, the applicant had no opportunity to answer the arguments put forward by the prosecution.

    69.  Moreover, the three-judge panel of the Osijek County Court which ordered the applicant’s detention on 10 June 2011 did so in a closed meeting without informing, let alone inviting, the applicant or his representative, who were thus not given an opportunity to put forward any arguments concerning the applicant’s detention (contrast Malkhasyan v. Armenia, no. 6729/07, § 83, 26 June 2012).

    70.  Since the defence was unable to present any arguments to the court in those proceedings, either in writing or orally, the Court considers that the applicant could not effectively exercise his defence rights in the proceedings before the Osijek County Court. Accordingly, there has been a violation of the procedural aspect of Article 5 § 4 of the Convention because the principle of “equality of arms” was not respected.

    71.  There has therefore been a violation of Article 5 § 4 of the Convention.

    (b)  Decision of the Constitutional Court

    (i)  Submissions of the parties

    72.  The applicant contended that there had been no justification for the Constitutional Court’s refusal to examine his constitutional complaint about the decision of 10 June 2011 on the merits, since he had made proper use of that remedy as provided for in the relevant domestic law. He had thus allowed the Constitutional Court to deal with the substance of his complaints concerning the alleged unlawfulness and unreasonableness of his continued detention. Moreover, he pointed out that the decision of the Constitutional Court in his case had run contrary to the practice of that court (see paragraph 23 above).

    73.  The Government argued that the domestic legal system had provided an effective procedure for the applicant to contest the grounds and duration of his detention before the Constitutional Court. They pointed out that the procedural requirements for the Constitutional Court to decide a constitutional complaint on the merits depended on two conditions: that the applicant was detained; and that the disputed decision was in force at the time of the Constitutional Court’s decision. Such a practice had legal and procedural justification in that the Constitutional Court wanted to keep its powers of review practical and effective by confining its examination to detention orders in force. As the applicant had lodged his constitutional complaint about the decision of 10 June 2011 on 12 July 2011 (see paragraph 15 above), and as a new decision on his detention had been adopted in the meantime, on 8 July 2011, (see paragraph 14 above), the Constitutional Court had declared his complaint inadmissible without examining it on the merits.

    (ii)  The Court’s assessment

    74.  The Court has already examined in other Croatian cases the Constitutional Court’s practice of declaring each constitutional complaint inadmissible merely on the grounds that a fresh decision extending detention has been adopted before it has given its ruling. In this respect the Court has found a violation of Article 5 § 4 of the Convention, in that the Constitutional Court’s failure to decide on the applicants’ constitutional complaints on the merits made it impossible to ensure the proper and meaningful functioning of the system for reviewing their detention provided for under domestic legislation (see Peša v. Croatia, no. 40523/08, § 126, 8 April 2010; Hađi v. Croatia, no. 42998/08, § 47, 1 July 2010; Bernobić v. Croatia, no. 57180/09, § 93, 21 June 2011; Krnjak v. Croatia, no. 11228/10, § 54, 28 June 2011; Šebalj v. Croatia, no. 4429/09, § 223, 28 June 2011; Getoš-Magdić v. Croatia, no. 56305/08, § 106, 2 December 2010; Trifković v. Croatia, no. 36653/09, §§ 139-140, 6 November 2012; and Margaretić v. Croatia, no. 16115/13, §§ 119-21, 5 June 2014).

    75.  While the Court notes the positive changes in the approach of the Constitutional Court introduced in January 2014, removing any such lack of effectiveness of the review procedure before it, it observes that the applicant’s case was dealt with under the old approach, which was found to be contrary to the requirements of Article 5 § 4 of the Convention. The Court therefore sees no reason to depart from its findings in the cases cited above.

    76.  There has, accordingly, been a violation of Article 5 § 4 of the Convention.

    II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

    77.  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

    78.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

    79.  The Government considered that the finding of a violation would constitute a sufficient just satisfaction.

    80.  The Court awards the applicant EUR 500 in respect of non-pecuniary damage.

    B.  Costs and expenses

    81.  The applicant also claimed HRK 12,500 for the costs and expenses incurred before the domestic courts and HRK 15,300 for those incurred before the Court.

    82.  The Government maintained that there was no proof that any costs had actually been incurred by the applicant.

    83.  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 the sum of EUR 2,800 covering costs under all heads.

    C.  Default interest

    84.  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

    1.  Decides to join to the merits the Government’s objection concerning the applicability of Article 5 § 4 to the appeal proceedings instituted by the prosecution and rejects it;

     

    2.  Declares, unanimously, the application admissible;

     

    3.  Holds, by six votes to one, that there has been no violation of Article 5 § 1 of the Convention;

     

    4.  Holds, unanimously, that there has been a violation of Article 5 § 4 of the Convention both in respect of the decision of the Osijek County Court of 10 June 2011 and the decision of the Constitutional Court;

     

    5.   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:

    (i)  EUR 500 (five hundred euros) in respect of non-pecuniary damage;

    (ii)  EUR 2,800 (two thousand eight hundred euros) in respect of costs and expenses, payable directly into the bank account of the applicant’s representative;

    (iii)  any tax that may be chargeable on the above amounts;

    (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;

     

    6.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

    Done in English, and notified in writing on 11 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

       Hasan Bakırcı                                                                    Julia Laffranque
    Deputy Registrar                                                                       President

     

    In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment.

    J.L
    H.B.

     

    PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGE LEMMENS

    1.  To my regret, I am unable to follow my colleagues in finding that there has been no violation of Article 5 § 1 of the Convention.

    Moreover, I have some doubts as to whether Article 5 § 4 is applicable to the proceedings before the County Court which led to its decision of 10 June 2011. I wonder whether it would not have been more appropriate, in the particular circumstances of the present case, to examine the relevant complaint under Article 5 § 3.

    The County Court’s decision of 10 June 2011 - Article 5 § 1

    2.  I agree with the majority that the mere fact that the detention order issued by the Osijek County Court on 10 June 2011 did not set a time-limit for the applicant’s detention, although formally not in conformity with Article 103 of the Code of Criminal Procedure (CCrP), does not necessarily mean that the detention was unlawful.

     

    3.  The problem lies elsewhere.

    As the majority rightly reiterate, “where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied” (see paragraph 47 of the judgment). The key issue is whether it was clear, under Croatian law, for how long the applicant could be detained following the decision of the County Court.

    The majority refer to Article 106 §§ 1 and 2 CCrP. Under these provisions, the initial detention could be ordered for a maximum period of one month, a first extension could be ordered for a maximum of two months, and a third and last extension could be ordered for a maximum of three months (paragraphs 23 and 54 of the judgment). The maximum duration of detention during the investigation could not exceed six months (Article 106 § 3 CCrP, quoted in Getoš-Magdić v. Croatia, no. 56305/08, § 65, 2 December 2010).

    It is not difficult to calculate for how long the extension of a detention is valid where it concerns a continuous period of detention. However, in the applicant’s case the detention was interrupted. On 28 April 2011 an investigating judge ordered an initial one-month detention (see paragraph 7 of the judgment), which was valid until 27 May 2011. Three days before that date, that is, on 24 May 2011, the applicant’s release was ordered, and he was effectively released on that date (see paragraph 8 of the judgment). Later, on 10 June 2011, the Osijek County Court ordered the applicant’s pre-trial detention, and the applicant was again placed in pre-trial detention on 14 June 2011 (see paragraphs 10-11 of the judgment). From the moment that the indictment on 6 July 2011 was filed, the pre-trial detention was governed by a different legal regime.[1]

    According to the majority, the detention was ordered for “a further two months” on 10 June 2011 (see paragraph 54 of the judgment). Why two months? The first one-month period had not been “used” up to its maximum duration. If the order in question is to be interpreted as covering a period of two months (i.e., a first extension), this would mean that the maximum duration of detention would ultimately be less than six months (namely six months minus the three days (25-27 May 2011) that were not “used” under the initial detention order).

    Be that as it may, even if one accepts the majority’s view that the County Court’s decision of 10 June 2011 allowed for an extension of two months, the question arises from which date that period started to run: from 24 May (the date of the applicant’s release), 28 May (the day after the end of the one-month period covered by the order of 28 April 2011), 10 June (the date of the decision under review) or 14 June 2011 (the date of the applicant’s return to prison)? The majority do not pronounce on this issue. Nor do I find a clear and ambiguous answer in the law.

    Having regard to the foregoing, I feel unable to conclude that when the applicant received the County Court’s decision of 10 June 2011 he should have been able to know exactly how long he could be kept in detention. I therefore feel compelled to conclude, on the basis of the elements mentioned in the judgment, that the said decision did not satisfy the condition of foreseeability.

    For that reason, I voted against the finding that there has been no violation of Article 5 § 1.

    The decision-making process leading up to the County Court’s decision of 10 June 2011 - Article 5 § 4, or should that be Article 5 § 3?

    4.  The applicant complained about the proceedings leading to the County Court’s decision of 10 June 2011 and alleged that there had been a violation of Article 5 § 4 of the Convention. The majority agrees that the complaint should be examined under Article 5 § 4.

    I hesitate to follow the majority on this point.

     

    5.  Article 5 § 3 concerns the decision taken by “a judge or other officer authorised by law to exercise judicial power” on the question whether or not to order the pre-trial detention of a person. It is the decision by a judge or an officer “reviewing the circumstances militating for or against detention, ... deciding, by reference to legal criteria, whether there are reasons to justify detention and ... ordering release if there are no such reasons” (see Schiesser v. Switzerland, 4 December 1979, § 31, Series A no. 34). In other words, according to the Court, it is the decision by which the judge or the judicial officer considers “the merits of the detention” (see Aquilina v. Malta [GC], no. 25642/94, § 47, ECHR 1999-III; McKay v. the United Kingdom [GC], no. 543/03, § 35, ECHR 2006-X; Medvedyev and Others v. France [GC], no. 3394/03, § 124, ECHR 2010; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 98, ECHR 2016 (extracts)).[2] Since there is no legal obligation to place a suspect in pre-trial detention, that decision is partly an exercise of discretion.

    Article 5 § 3 contains two limbs (see McKay, cited above, § 31, and Medvedyev, cited above, § 119). The first limb concerns the early stages of arrest and detention and applies in particular to the first decision by which a judge or judicial officer decides whether or not to place a person in pre-trial detention. In general a person is brought before a judge or judicial officer after having been arrested by the police or a prosecutor. The second limb concerns the continued detention pending trial. The initial as well as the continued detention are justified only insofar as there exist, in addition to a reasonable suspicion, relevant and sufficient reasons for it (see Buzadji, cited above, § 102). Fulfilment of these requirements is necessary for the lawfulness of the detention.

     

    6.  Article 5 § 4 guarantees to anyone who is deprived of his or her liberty the right to have the lawfulness of that detention reviewed by a court.

    In principle, the review is triggered by an application by the detained person. This means that Article 5 § 4 comes or does not come into play, depending on whether or not the detained person institutes proceedings. However, where domestic law provides for an automatic periodic review of the lawfulness of a detention, such a review falls under the application of Article 5 § 4 and may satisfy its requirements (see X v. the United Kingdom, 5 November 1981, § 52, Series A no. 46).

    As to the scope of the court’s review, Article 5 § 4 does not require a review “of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the ‘lawfulness’ of the detention” (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009; Stanev v. Bulgaria [GC], no. 36760/06, § 68, ECHR 2012; and Khlaifia and Others v. Italy [GC], no. 16483/12, § 128, ECHR 2016 (extracts)).

    Finally, it should be kept in mind that there may be an overlap between the guarantees of paragraphs 3 and 4 of Article 5. This is particularly true when the decision ordering or confirming deprivation of liberty (Article 5 § 3) is taken by a “court”: in that event the judicial control of lawfulness (Article 5 § 4) is incorporated in that decision (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12, and De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 57, Series A no. 77). This does not necessarily mean that in such a situation the compatibility of the decision with the Convention should be examined from the point of view of only one of these paragraphs. The guarantee assured by Article 5 § 4 is of a different order from, and additional to, that provided by Article 5 § 3 (see De Jong, Baljet and Van den Brink v. the Netherlands, cited above, § 57, and Shishkov v. Bulgaria, no. 38822/97, § 87, ECHR 2003-I (extracts)).[3] While the requirements of Article 5 § 3 may be respected, it may be that those of Article 5 § 4 are not.

     

    7.  In the present case, the investigating judge, as the “decision-making authority” in the above sense (see paragraph 6), on 31 May 2011 ordered the applicant’s release. When the County Court examined the State Attorney’s Office’s appeal against that order and when it adopted its decision on 10 June 2011 ordering the applicant’s pre-trial detention, it did so with respect to a person who was at liberty. It therefore seems that there was no detention in respect of which lawfulness had to be reviewed (see A. and Others v. the United Kingdom, cited above, § 200).

    I am not sure that one can object to the above conclusion on the ground that the County Court was required to review the lawfulness of the extension of the detention based on the initial detention order of 28 April 2011. Indeed, the investigating judge had in the meantime, by the orders of 24 May 2011 (immediately executed, albeit subsequently quashed) and 31 May 2011, ordered the applicant’s release, thus putting an end to the enforceability of his order of 28 April 2011.[4] It seems that, as a result of the applicant’s release, the link with the original detention order had been broken. Moreover, the appeal proceedings were directed against the order of 31 May 2011, not that of 28 April 2011. When the investigating judge decided on 31 May 2011 to order the applicant’s release, he had been dealing with the merits of the detention, as the “decision-making authority”.

    In the given circumstances it seems to me that the County Court had to take a decision that could not be limited to a review of the lawfulness of the extension to the detention, but had also to concern the merits thereof. It was at that moment the “decision-making authority”.

    Having regard to the fact that the applicant was at liberty as well as to the nature of the decision to be taken by the County Court, I believe that there was reason to examine the complaint from the perspective of Article 5 § 3.

     

    8.  By virtue of Article 5 § 3, the judge or judicial officer must himself or herself hear the person brought before him or her, before taking a decision (see Schiesser, cited above, § 31; De Jong, Baljet and Van den Brink v. the Netherlands, cited above, § 51; Nikolova v. Bulgaria [GC], no. 31195/96, § 49, ECHR 1999-II; and Aquilina, cited above, § 50). This did not happen in the present case, as the County Court decided the matter in a closed meeting in the parties’ absence (see paragraph 10 of the judgment). In my opinion, the fact that the applicant was not heard by the judges who ordered him to return to custody is sufficient to find a violation of Article 5 § 3.

    Whether or not the applicant had the opportunity to put forward any arguments concerning his detention and to answer the arguments put forward by the prosecution (see paragraphs 68-69 of the judgment) can, in light of the above conclusion, be seen as an issue of secondary importance.

     

    9.  Were the Court to have concluded that Article 5 § 3 is applicable and had been violated, there would in my opinion be no need to examine whether Article 5 § 4 is also applicable to the proceedings before the County Court and, if so, whether its requirements have been met.

     

    10.  Assuming, however, that Article 5 § 4 is (also) applicable, I agree with my colleagues that the court reviewing the lawfulness of detention must provide guarantees appropriate to the kind of deprivation of liberty in question. The proceedings must be adversarial and must ensure equality of arms between the prosecutor and the detained person (see, inter alia, Nikolova, cited above, § 58; A. and Others v. the United Kingdom, cited above, § 204; and Mooren v. Germany [GC], no. 11364/03, § 124, 9 July 2009). Moreover, in the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing with the parties is required (see paragraph 66 of the judgment; see also, inter alia, Nikolova, cited above, § 58; A. and Others v. the United Kingdom, cited above, § 204; and Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012).[5]

    I agree with the finding in the judgment that the defence was unable to present any arguments to the County Court, either in writing or orally, with the result that the applicant could not effectively exercise his defence rights (see paragraphs 68-70 of the judgment). Insofar as Article 5 § 4 is applicable, I agree with the conclusion that it has been violated.

     

    11.  To sum up, it would seem that the complaint relating to the proceedings before the County Court could have been examined from the point of view of Article 5 § 3, and that a violation of that provision could have been found.

    Assuming that Article 5 § 4 is (also) applicable, I agree with the majority that it has been violated.

    The Constitutional Court’s decision of 15 July 2011 - Article 5 § 4

    12.  Insofar as the judgment finds that Article 5 § 4 has been violated on account of the Constitutional Court’s failure to decide on the merits of the applicant’s constitutional complaint, I fully agree with it.


    [1]  See Article 107 § 2 CCrP, quoted in Getoš-Magdić, cited above, § 65: “After the indictment has been lodged ... a [judicial] panel ... shall examine every two months whether the statutory conditions for detention have continued to exist ...” Under this regime the three-judge panel of the County Court ordered further extensions on 8 July 2011 (paragraph 14 of the judgment) and 20 September 2011. It convicted the applicant on 27 October 2011, thereby converting the pre-trial detention (Article 5 § 1 (c)) into detention after conviction (Article 5 § 1 (a)). The detention after 8 July 2011 is not in dispute.

    [2]  An examination of the “merits of the detention” includes an examination of such elements as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (see Buzadji, cited above, § 88). Specifically with regard to the risk of absconding, the judge or other officer may have to consider such elements as the character of the person involved, his or her morals, assets, occupation, family ties, links with the State in which he or she is being prosecuted and the person’s international contacts (see Neumeister v. Austria, 27 June 1968, p. 39, § 10, Series A no. 8, and Buzadji, cited above, § 90).

    [3]  In Lebedev v. Russia (no. 4493/04, § 76, 25 October 2007), the Court held that the case-law concerning Article 5 § 4 was, “as a rule”, applicable to detention proceedings falling under Article 5 § 3. This is, in my opinion, too general a statement.

    [4]  The majority refer to Fodale v. Italy (no. 70148/01, § 40, ECHR 2006-VII) as a precedent for examining the case under Article 5 § 4 (see paragraph 65 of the judgment). In that case, however, the proceedings on appeal concerned the initial decision of the preliminary investigations judge to remand the applicant in custody, not a decision to release him. This is, in my opinion, a crucial difference with our case.

    [5]  The majority refer in paragraph 67 of the judgment to Article 6 of the Convention. It is true that a link with Article 6 is made, in practically identical terms, in a number of judgments, some of which are quoted by the majority (see, inter alia, Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001; Lietzow v. Germany, no. 24479/94, § 44, ECHR 2001-I; Schöps v. Germany, no. 25116/94, § 44, ECHR 2001-I; and Fodale, cited above, § 42). However, the reference to Article 6 is, in my opinion, a bit confusing. If a certain degree of fairness is required in proceedings falling under Article 5 § 4, this is not because Article 6 “has some application to pre-trial proceedings”, but simply because the proceedings under Article 5 § 4 are of a judicial nature.

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