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FIRST
SECTION
CASE OF KRNJAK v. CROATIA
(Application
no. 11228/10)
JUDGMENT
STRASBOURG
28 June
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Krnjak v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly Kovler, President,
Nina
Vajić,
Peer Lorenzen,
Khanlar
Hajiyev,
George Nicolaou,
Julia
Laffranque,
Linos-Alexandre Sicilianos, judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 7 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11228/10) 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 Ivica Krnjak (“the
applicant”), on 1 February 2010.
- The
applicant was represented by Mr D. Rešetar, a lawyer
practising in Osijek. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š.
StaZnik.
- On
29 September 2009 the President of the First Section decided to
communicate the complaints under Article 5 of the Convention
concerning the applicant’s pre-trial detention and the
procedure by which the applicant sought to challenge the lawfulness
of his detention. 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 1942 and lives in Zagreb.
- On
16 April 2007 the applicant and six other defendants were indicted at
Osijek County Court for war crimes against the civilian population,
an offence under Article 120 of the Croatian Criminal Code.
- On
29 May 2007 the Supreme Court (Vrhovni sud Republike Hrvatske)
transferred jurisdiction to the Zagreb County Court (Zupanijski
sud u Zagrebu) and the proceedings continued before that court.
At that time the applicant lived in Osijek, a town about 280
kilometres from Zagreb.
- On
17 April 2009 the applicant’s defence counsel informed the
trial court that the applicant would not be able to attend a hearing
scheduled for 20 April 2009 because he was to be hospitalised
that day in Osijek. However, the medical documentation he submitted
indicated that the applicant’s admission to Osijek Hospital had
been scheduled for 20 May 2009 at 8.30 a.m.
- The
trial panel at the hearing on 20 April 2009 was composed of judges
Z.H., as the presiding judge, and R.T.A., S.B.B and M.K., as its
members. At the beginning of the hearing, at 8.15 a.m., the presiding
judge telephoned Osijek Hospital and learned that the applicant had
not been admitted to that hospital. The trial panel made a request to
a three-judge non-trial panel to order the applicant’s
detention and concluded the hearing at 10.05 a.m.
- At
9.53 a.m. a fax sent by defence counsel arrived at the Zagreb County
Court. Defence counsel submitted the same medical document as before,
but with the date of the applicant’s scheduled hospitalisation
altered from 20 May 2009 to 20 April 2009.
- At
10 a.m. the three-judge non-trial panel opened its session. One of
the applicant’s defence counsel was present and made no further
submissions. The session ended at 11 a.m. The panel was composed of
judges R.T.A., as the presiding judge, and S.P.L. and L.S., as
members. It granted the request and ordered the applicant’s
detention under Article 102 § 1(1) of the Code of
Criminal Procedure (Zakon o kaznenom postupku). The relevant
part of the decision reads:
“The Deputy Zagreb County State Attorney said that
... the second defendant was obstructing the proceedings ... because
... he had already recalled a power of attorney given to his defence
counsel owing to which the trial had to start over again ... he had
also been given a time-limit to resolve his health problems but had
not done so. She stressed in particular that the diagnostic
examination [on account of which the applicant did not appear at the
hearing] ... had not been necessary at that time. ...
The [other] Deputy Zagreb County State Attorney ...
added that the applicant’s behaviour in a longer period had
shown that he had been obstructing the closure of the trial ... and
that it was evident that he had been avoiding appearing at the trial
...
Defence counsel for the second defendant ... objected to
ordering the defendant’s detention. He argued that there was no
indication that the second defendant had been avoiding the trial ...
he had at that moment received a telephone message from the
defendant’s other defence counsel in Osijek ... who told him
that he would fax fresh medical documentation in respect of the
defendant which would shed new light on today’s events.
...
The record of the hearing held on 20 April 2009 shows
that the second defendant, although he had been properly summoned,
did not appear, and his defence counsel ... in his submission of 17
April 2009 stated that the second defendant had been scheduled for
hospitalisation in Osijek and for that reason would not be able to
attend the hearing. He enclosed medical documentation showing that
the second defendant had been scheduled for hospitalisation on 20 May
2009.
On 20 April 2009 the presiding judge telephoned ...
Osijek Hospital and learned that the second defendant had not been
admitted there.
Although the documents in the case file show that the
applicant had some medical problems, it is evident that he is
manipulating them, as he had already done on several previous
occasions, owing to which disciplinary detention had already been
ordered against him by a decision of this court of 24 November 2008
...
Such behaviour by the second defendant, in view of the
grave criminal charges [against him], attracting a prison term, shows
that he is avoiding participating in these proceedings and is
[obstructing] the trial ...”
- On
the same day the presiding judge of the trial panel ordered a medical
examination of the applicant.
- The
medical documents show that the applicant was admitted to Osijek
Hospital on 20 April 2009 at 2.45 p.m.
- On
21 April 2009 at 10.45 a.m. the applicant was arrested in Osijek
Hospital and remanded in custody. On the same day the medical expert
submitted his report. The presiding judge asked the expert to see the
applicant on 22 April 2009 in order to establish whether his
hospitalisation was urgent. The expert carried out the order and in
his report of the same day established that there was no urgent need
for the applicant to have surgery.
- A
hearing was held in the applicant’s presence on 22 April 2009
and further hearings on 23, 27 and 28 April 2009, when the hearing
was closed.
- In
the meantime, on 24 April 2009 the applicant lodged an appeal
complaining about his detention and also that the presiding judge in
the panel ordering his detention was also a member of the trial panel
which asked for a measure of detention to be ordered against him. The
applicant’s appeal was dismissed by the Supreme Court on 29
April 2009.
The
relevant part of the decision reads:
“...
The defendant Ivica Krnjak was aware of his duty to
participate in these criminal proceedings, and in the course of the
proceedings disciplinary detention had already been ordered against
him in order to ensure his presence at the trial.
Nevertheless, he failed to appear at the hearing
scheduled for 20 April 2009 with the excuse that he was scheduled for
hospitalisation that day. The medical documentation ... shows that he
was scheduled for surgery at 8.30 a.m. that day. The presiding judge
verified by telephoning the Osijek Hospital Admission Centre the
allegations of the defendant’s counsel and established that the
defendant had not been admitted to the hospital.
Against that background [the first-instance] court
correctly concluded that the defendant was in hiding and it was
necessary to order his detention as an extreme measure to ensure his
presence at the trial. Moreover, the additional medical expert report
established ... that the defendant’s health did not indicate
either medical intervention or surgery, which additionally confirms
the conclusion that the defendant was in hiding in order to avoid
participating in these proceedings.
As regards the allegations in the appeal that a trial
judge had sat on the panel which ordered the defendant’s
detention ... it is to be noted that the trial panel is also
authorised to extend detention during the hearing and that there is
no statutory obstacle to a member of the trial panel participating in
adopting a decision on detention as a member of a non-trial panel.
The appeal further alleges that the defendant had been
admitted that day to Osijek Hospital but that the [first-instance]
court could not establish this, because of the slowness of the Osijek
Hospital administration. However, there is no reliable document in
the case file, apart from the defendant’s own allegations,
showing that he was actually admitted to the hospital on 20 April
2009 at 8.30 a.m., as he should have been according to the medical
documentation in the file. The only indication in that regard is the
fact that he was arrested at 10.45 a.m. the next day in Osijek
Hospital. It is particularly suggestive that his state of health did
not indicate that there was a need, or any urgency, for surgery, as
established afterwards by a [medical] expert ...”
This
decision was served on the applicant’s counsel on 4 May 2009.
- The
trial panel deliberations were held on 4, 5, 6 and 7 May 2009. On the
latter date the Zagreb County Court found the applicant guilty as
charged and sentenced him to eight years’ imprisonment. It
remanded him in custody until the judgment became final.
- On
4 June 2009 the applicant lodged a constitutional complaint against
the decision of the County Court of 20 April 2009 and the decision of
the Supreme Court of 4 May 2009, concerning his detention.
- On
8 July 2009 the Constitutional Court declared the applicant’s
constitutional complaint inadmissible on the ground that the impugned
decisions were no longer in effect since, meanwhile, a fresh decision
on his detention had been adopted, on 7 May 2009. The Constitutional
Court decision was served on the applicant’s counsel on 9
September 2009.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Constitutional Act on the Constitutional
Court (Ustavni
zakon o Ustavnom sudu,
Official Gazette no. 29/2002) read:
Section 62 § 1
“1. Anyone may lodge a constitutional complaint
with the Constitutional Court if he or she deems that a decision
(pojedinačni akt) of a State body, a body of local and
regional self-government, or a legal person with public authority,
which has decided on his or her rights and obligations, or deemed
that there is a suspicion or accusation of a criminal act, has
violated his or her human rights or fundamental freedoms, or his or
her right to local and regional self-government guaranteed by the
Constitution (hereinafter: constitutional right) ...”
Section 64
“A constitutional complaint may be lodged within
thirty days of the day the decision has been served [on a party].”
- The
relevant provisions of the Code of Criminal Procedure (Zakon o
kaznenom postupku – Official Gazette nos. 110/1997,
27/1998, 58/1999, 112/1999, 58/2002 and 62/2003, 178/2004 and
115/2006) provide as follows:
8. General Provisions on Detention
Article 101
(1) Detention may be imposed only if the same purpose
cannot be achieved by another [preventive] measure.
(2) Detention shall be lifted and the detainee released
as soon as the grounds for detention cease to exist.
(3) When deciding on detention, in particular on its
duration, the court shall take into consideration the proportionality
between the gravity of the offence, the sentence which ... may be
expected to be imposed, and the need to order and determine the
duration of detention.
(4) The judicial authorities conducting the criminal
proceedings shall proceed with particular urgency when the defendant
is in detention and shall review of their own motion whether the
grounds and legal conditions for detention have ceased to exist, in
which case detention shall immediately be lifted.
9. Grounds for Ordering Detention
Article 102
“(1) Where reasonable suspicion exists that a
person has committed a criminal offence, he or she may be placed in
detention if:
1. the circumstances indicate a risk that [the
defendant] will abscond (is in hiding or his or her identity cannot
be established etc.);
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- Relying
on Article 5 of the Convention, the applicant complained that the
reasons for ordering his detention in the period between 20 April
and 7 May 2009 had not been relevant and sufficient. The Court shall
examine this complaint under Article 5 § 1(c) 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:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...”
A. Admissibility
- The
Government argued that this complaint had been lodged outside the
six-month limit because the applicant had lodged his constitutional
complaint only after the first-instance judgment of 7 May 2009 had
been adopted, and that he must have known that his constitutional
complaint against the previous decision on his detention had already
become ineffective, according to the constant practice of the
Constitutional Court.
- The
applicant maintained that his constitutional complaint had been
lodged within the prescribed time-limit and that he had lodged his
application with the Court within six months of the date the
Constitutional Court’s decision had been served on him.
- The
Court notes that it had already found that the practice of the
Constitutional Court not to examine the merits of a constitutional
complaint concerning a decision on detention only on the ground that
meanwhile a fresh decision on detention had been adopted violated
Article 5 § 4 of the Convention (see Peša v. Croatia,
no. 40523/08, §§ 122-126, 8 April 2010, and Hađi v.
Croatia, no. 42998/08, §§ 42-47, 1 July 2010).
- Furthermore,
the time-limit for lodging a constitutional complaint under section
64 of the Constitutional Court Act is thirty days from the day when
the impugned decision is served on a party.
- In
the present case, the impugned decision, namely the Supreme Court
decision of 29 April 2009, was served on the applicant on 4 May
2009. He lodged his constitutional complaint on 4 June 2009, that is
to say within the thirty-day time-limit. In this connection the Court
notes that the Constitutional Court did not hold that the applicant’s
constitutional complaint had been lodged outside the prescribed
time-limit.
- In
these circumstances the Court considers that the applicant made a
proper attempt to exhaust all available domestic remedies, and that
the final decision was that adopted by the Constitutional Court on 8
July 2009 and served on the applicant’s counsel on 9 September
2009. The present application was lodged with the Court on 1 February
2010, within the six-month time-limit.
- It
follows that the Government’s objection must be rejected.
- The
Court considers further that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3(a) of the
Convention. It also considers that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ arguments
- The
applicant argued that there was no need to order his detention
because he had not been able to appear at the hearing scheduled for
20 April 2009 on a justified ground, namely his urgent
hospitalisation.
- The
Government argued that the national court had carefully examined all
relevant circumstances concerning the grounds for ordering the
applicant’s detention, and concluded that the applicant had
been obstructing the trial. They argued that the national courts had
held that the applicant had previously been attempting to avoid
appearing at the hearings and that the presiding judge had shown
adequate caution when he had telephoned Osijek Hospital. However, the
medical documentation submitted by the applicant’s counsel on
the morning of 20 April 2009 had indicated that his hospitalisation
had been scheduled for 20 May 2009 and the presiding judge had
learned at Osijek Hospital that the applicant had not been admitted
there.
- Further
developments had shown that the applicant’s hospitalisation had
not been urgent.
2. The Court’s assessment
(a) General principles
- The
Court first observes that this case falls to be examined under
sub-paragraph (c) of Article 5 § 1, since the purpose of the
applicant’s detention was to bring him before the competent
legal authority on reasonable suspicion of having committed an
offence.
- The
Court reiterates that Article 5 of the Convention guarantees the
fundamental right to liberty and security. That right is of primary
importance in a “democratic society” within the meaning
of the Convention (see De Wilde, Ooms and Versyp v. Belgium,
18 June 1971, § 65, Series A no. 12, and
Winterwerp v. the Netherlands, 24 October 1979, § 37,
Series A no. 33). Its key purpose is to prevent arbitrary
or unjustified deprivations of liberty (see McKay v. the United
Kingdom [GC], no. 543/03, § 30, ECHR 2006-... and Ladent
v. Poland, no. 11036/03, § 45, ECHR 2008 ...
(extracts)).
- All
persons are entitled to the protection of that right, that is to say,
not to be deprived or continue to be deprived of their liberty (see
Weeks v. the United Kingdom, 2 March 1987, § 40,
Series A no. 114), save in accordance with the conditions specified
in paragraph 1 of Article 5. The list of exceptions set out in
Article 5 § 1 is an exhaustive one and only a narrow
interpretation of those exceptions is consistent with the aim of that
provision, namely to ensure that no one is arbitrarily deprived of
his or her liberty (see Amuur v. France, 25 June 1996, §
42, Reports 1996-III; Labita v. Italy [GC], no.
26772/95, § 170, ECHR 2000-IV; and Assanidze v. Georgia
[GC], no. 71503/01, § 170, ECHR 2004-II).
- The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and enshrine the obligation
to conform to substantive and procedural rules thereof. Although it
is in the first place for the national authorities, notably the
courts, to interpret and apply domestic law, under Article 5 § 1
failure to comply with domestic law entails a breach of the
Convention and the Court can and should review whether this law has
been complied with (see, among many other authorities, Benham
v. the United Kingdom, 10 June 1996, § 41, Reports
1996-III, and Assanidze v. Georgia, cited above, §
171).
- This primarily requires any arrest or detention to
have a legal basis in domestic law but also relates to the quality of
the law, requiring it to be compatible with the rule of law, a
concept inherent in all the Articles of the Convention (see Stafford,
cited above, § 63, and Kafkaris, cited above, § 116).
“Quality of the law” in this sense implies that where a
national law authorises deprivation of liberty it must be
sufficiently accessible, precise and foreseeable in its application,
in order to avoid all risk of arbitrariness (see Amuur v. France,
25 June 1996, § 50, Reports 1996-III; Nasrulloyev
v. Russia, no. 656/06, § 71, 11 October 2007; and
Mooren v. Germany [GC], no. 11364/03, §
76, 9 July 2009). The standard of “lawfulness” set by the
Convention thus requires that all law be sufficiently precise to
allow the person – if need be, with appropriate advice –
to foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail (see Steel and Others
v. the United Kingdom, 23 September 1998, § 54, Reports
1998-VII, and Baranowski v. Poland, no. 28358/95, § 52,
ECHR 2000-III).
- Compliance
with national law is not, however, sufficient: Article 5 § 1
requires in addition that any deprivation of liberty should be in
keeping with the purpose of protecting the individual from
arbitrariness (see, among many other authorities, Winterwerp,
cited above § 37; Amuur, cited above, § 50; and
Witold Litwa v. Poland, no. 26629/95, § 78,
ECHR 2000-III). It is a fundamental principle that no detention which
is arbitrary can be compatible with Article 5 § 1 and the notion
of “arbitrariness” in Article 5 § 1
extends beyond lack of conformity with national law, so that a
deprivation of liberty may be lawful in terms of domestic law but
still arbitrary and thus contrary to the Convention (see Saadi v.
the United Kingdom [GC], no. 13229/03, § 67, ECHR
2008-... ).
(b) Application of these principles to the
present case
- The
Court firstly notes that the applicant’s detention had a clear
basis in domestic law, since the national courts ordered his
detention on the basis of Article 102 §1(1) of the Code of
Criminal Procedure, holding that there was a risk of absconding.
Articles 101 and 102 of that Code concern general conditions for
ordering detention. Thus, detention is to be ordered if there is a
reasonable suspicion that a person has committed a criminal offence.
This issue is not relevant in the present case, since the applicant,
charged with the serious offence of war crimes against the civilian
population, has not contested the existence of such a suspicion
against him. Also, there is no issue concerning the procedure
followed by the national courts in ordering the applicant’s
detention, since it was ordered by a competent court in the context
of the criminal proceedings instituted against the applicant.
- The
issue to be addressed in the present case is whether the national
authorities acted arbitrarily in ordering the applicant’s
detention. In this connection, the Court notes that the national
authorities ordered the applicant’s detention on the ground
that he was in hiding and avoiding appearing at the trial. They held
his applicant’s behaviour over a longer period had shown that
he had been obstructing the trial.
- The
Court notes that the applicant’s counsel informed the trial
court that the applicant’s hospitalisation had been scheduled
on the day of a hearing, 20 April 2009, that same morning. However,
the medical documentation he then submitted showed that the
hospitalisation had been scheduled for 20 May 2009. The presiding
judge verified the applicant’s allegations by telephoning
Osijek Hospital and learned that the applicant had not been admitted.
- In
the Court’s view the national courts carefully examined the
applicant’s situation, ordered a medical expert to assess his
state of health and established that there had been no need for an
urgent hospitalisation. Their conclusion that the applicant was
avoiding appearing at the trial, which was approaching its closure,
does not in any respect appear arbitrary.
- The
Court finds that the national authorities gave adequate and valid
reasons for the applicant’s detention between 20 April and 7
May 2009 and clarifying them with reference to the specific
circumstances of the case and the evidence available to them.
- Against
the above background the Court finds that there has been no violation
of Article 5 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant 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
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ arguments
- The
applicant argued that by failing to decide his constitutional
complaint on the merits the Constitutional Court had not met the
requirements under Article 5 § 4 of the Convention.
- The
Government reiterated that the applicant had lodged his
constitutional complaint only after the first-instance judgment of
7 May 2009 had been adopted and that he must have known that his
constitutional complaint against the previous decision on his
detention had already become ineffective, according to the constant
practice of the Constitutional Court.
2. The Court’s assessment
(a) General principles
- The
Court reiterates that the purpose of Article 5 § 4 is to assure
to people who have been 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 a 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 the applicant was able to lodge an appeal
with the Supreme Court against the decision ordering his detention.
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 4 June 2009 against the Supreme Court
decision of 29 April 2009 was declared inadmissible by the
Constitutional Court on those grounds on 8 July 2009. The
Court therefore has to address the question of the compliance of the
Constitutional Court 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, ECHR 2003-I, and
Bochev, cited above, § 70).
- Furthermore,
Article 5 § 4 does not compel the Contracting States to set up a
second level of jurisdiction for the examination of applications for
release from detention. Nevertheless, a State which institutes such a
system must in principle accord detainees the same guarantees on
appeal as at first instance (see Toth, cited above, §
84; 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 at that time, although allowing for a
constitutional complaint, left it to the Constitutional Court to
await a fresh decision on extending detention and then to declare the
complaint against the previous decision on detention inadmissible.
Thus, although the applicant lodged a constitutional complaint
against the above-mentioned decision of the Supreme 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.
54. In
the Court’s opinion, the Constitutional Court’s failure
to decide speedily on the applicant’s constitutional complaint
made it impossible to ensure the proper and meaningful functioning of
the system for the review of his detention, as provided for by the
national law. By declaring the applicant’s constitutional
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
v. Croatia, no. 42998/08, § 47, 1 July 2010).
Thus, it fell short of its obligation under Article 5 § 4 of the
Convention to review the lawfulness of the applicant’s
detention. There has accordingly been a violation of that provision.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Relying
on Article 5 of the Convention, the applicant complained that judge
R.T.A. who was a member of the trial panel had also decided to detain
him on remand, being a member of the non-trial panel which so
decided.
- Lastly,
the applicant relied on Articles 1 and 14 of the Convention, without
further substantiation.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. It follows that it is inadmissible
under Article 35 § 3(a) as manifestly ill-founded and must
be rejected pursuant to Article 35 § 4 of the
Convention.
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 100,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government deemed the amount claimed unfounded and in any event
excessive.
- The
Court considers that the finding of a violation of Article 5 § 4
of the Convention constitutes in itself sufficient just satisfaction
in the circumstances of the present case.
B. Costs and expenses
- The
applicant also claimed EUR 8,000 for the costs and expenses incurred
before the Court.
- The
Government deemed the sum claimed excessive.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,200 for the
proceedings 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 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 of the
Convention concerning the applicant’s pre-trial detention; and
the complaint concerning the conformity of the procedure before the
Constitutional Court by which the applicant sought to challenge the
lawfulness of his detention 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 a violation of Article
5 § 4 of the Convention;
- Holds
(a) that
the finding of a violation constitutes sufficient just satisfaction;
(b) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200
(thousand two hundred euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement;
(c) 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 applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 28 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
