Pesa and 2 other cases v Croatia - 109/20 [2011] ECHR 2125 (2 December 2011)

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The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”)^²,

Having regard to the judgments listed below, transmitted by the Court to the Committee once they had become final;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute each of the judgments listed in the table above;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report for each case provided by the government (see appendices);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgments;

DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DEPARTMENT FOR THE EXECUTION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS DIRECTORATE GENERAL OF

on individual and general measures undertaken in the execution of ECtHR judgment in

In its judgment of April 8 2010 the ECtHR found violations of Article 5 paragraphs 3 and 4, and Article 6 § 2 of the Convention.

ECtHR found that the extension of the applicant’s detention in the period of February 15 2008 to March 18 2009 could not be justified by any reasons given by national courts, and therefore determined a violation of Article 5 § 3 of the Convention.

Further, the ECtHR found a violation of Article 5 § 3 of the Convention due to the fact that the Constitutional Court, did not decide on the applicant’s constitutional complaints in a timely manner, and did not address the issue of the constitutionality of his detention (his constitutional complaint was dismissed).

Finally, the ECtHR found that certain statements made by public officials (the General Prosecutor, the Head of the Police, the Prime Minister and the President), and published in the press, prejudged the assessment of facts by the competent judicial authority, and therefore constituted the breach of the applicant’s right to be presumed innocent (violation of Article 6 § 2 of the Convention).

As the ECtHR established in the abovementioned judgment, the applicant had been released from detention on the basis of the Constitutional Court decision of March 17 2009 (during the proceedings before ECtHR).

Therefore, considering the nature of the violations found in this case, and relevant facts of the case, no special individual measures are necessary in the execution process.

The judgment has also been disseminated to the Constitutional Court, the Supreme Court and the County Court in Zagreb. In that sense, ail relevant court authorities have been informed of ECtHR findings relating to the criteria for the extension of detention. Since the applicant has been released from detention (sec no. 1. of the action report), no other measures concerning the violation of Article 5 § 3 are necessary.

Regarding the violation of Article 6 § 2 of the Convention, the analysis of the judgment has been sent out to The President of the Republic, the Government, the General Prosecutor’s Office, the Ministry of the Interior and Ministry of Justice (including the PR Service).

Accordingly, ail high level state officials have been acquainted with the need of honoring the presumption of innocence in their communication with the media relating to ongoing criminal proceedings.

All high level state officials have been acquainted with ECtHR’s findings in this case, with the goal of preventing similar situations in the future.

Translation of the judgment, along with its analysis, was delivered to the President of the Republic, and ail high level employees of the President’s office were informed of the findings of ECtHR in this case.

At one of the Government sessions, the Minister of Justice informed all members of the Government (including the ministers’ deputies) of the judgment in this case, especially regarding the violation found by ECtHR as a result of public statements of high level officials. Members of the Government were acquainted with the need to keep in mind the findings of this case in their future public statements and communication with the media.

Based on the findings of ECtHR in this case, The Ministry of Interior has adopted "Guidelines in relations with the media". This document contains instructions for all police employees authorized to give information to the public on how to provide relevant information without jeopardizing the rights of those involved in an incident or investigation (both the suspect and the victim). Additionally, the Guidelines predict coordination between police authorities and the prosecutors’ office and/or USKOK (Office for the Prevention of Corruption and Organized Crime) in informing the public of investigations of public interest. The Ministry of Interior has also held a number of educational seminars regarding the issue of communication with media.

The State Prosecutors’ Office has analyzed the judgment at the assembly of its Criminal Division, informing all state prosecutors and USKOK officials of the findings in this case.

Since the violation of Article 6 § 2 of the Convention found by the ECtHR in this case, based on statements made by high state officials, is an individual violation, the Government deems that no further general measures with respect to this part of the judgment are necessary.

c) Measures concerning the length of proceedings before the Constitutional Court

The Third Section established by this Decision, is in charge of deciding on constitutional complaints in cases which require special promptness, such as complaints relating to the constitutionality of detention.

The Government considers that the formation of this new Section of the Constitutional Court is sufficient warranty for ensuring that no further violations of this kind occur.

Just satisfaction rewarded to the applicant has been paid on September 1 2010, and payment information on a prescribed form delivered to the Execution’s department on March 28 2011.

In light of ail measures taken, considering the facts of the case established by ECtHR, the Government deems that no other measures (individual or general) are required to assure that no future violations of this kind occur.

Therefore, in accordance with Article 46 § 1 of the Convention, the Government proposes to the Committee of Ministers the adoption of a final resolution and closure of the execution supervision process.

In the case of Getoš-Magdić v. Croatia, the ECtHR found a violation of Article 5 § 4 of the ECHR, consisting of the failure of the Constitutional Court of RoC to decide speedily on the applicant’s constitutional complaint, making it impossible to ensure the proper and meaningful functioning of the system for the review of the applicant’s detention. ECtHR noted (§ 102 of the judgment) that "the practice of the Constitutional Court is to declare inadmissible each constitutional complaint where, before it has given its decision, a fresh decision extending detention has been adopted in the meantime".

Similar conclusions were drawn by ECtHR in the cases of Peša v. Croatia, and Hađi v. Croatia. Action reports in the cases of Peša y. Croatia and Hađi v. Croatia were delivered before these three cases were classified as a group.

As stated in the judgment (§ 88), the Constitutional Court, deciding on another constitutional complaint by the applicant, found that the grounds for the applicants’ detention were no longer sufficient and ordered her immediate release. As stated in §63 of the judgment, the applicant was released on the same day when Constitutional Court rendered its decision.

Therefore, the constitutionality of applicants’ detention has been examined by the Constitutional Court, so no individual measures are necessary.

The judgment has been translated to Croatian and disseminated to all relevant authorities — Parliamentary Committee for Constitution, and the political system, Parliamentary Committee for judiciary, Parliamentary Committee for human rights and rights of national minorities, The constitutional Court of RoC, the Supreme Court, and County Courts in Zagreb and in Osijek.

Croatian translation of the judgment was published on the web page of the Ministry of justice (www.mprh.hr).

On September 7 2010, the Constitutional Court passed a Decision on the establishment of the Third section of the Constitutional Court in charge of deciding on constitutional complaints. The Decision was published in the Official Gazette No. 109/2010 (and was delivered to the Department for the Execution of Judgments of the ECtHR as part of the Action report in the case of Peša v. Croatia).

The Third Section established by this Decision decides on constitutional complaints in cases which require special promptness, such as complaints relating to the constitutionality of detention.

Enclosed to the Action report, the Government of RoC delivers first and two recent decisions of the Third section of the Constitutional Court of RoC relating to cases of the constitutionality of detention (U-III-4446/2010 of September 14 2010, U-III-1714/2011 of April 7 2011 and U-III-2815/2011 of June 8 2011).

These decisions show that the duration of proceedings regarding constitutionality of detention before the Constitutional Court has been significantly reduced. Decisions of Third section of the Constitutional Court are rendered before the expiration of detention ordered by the disputed decisions of the Supreme Court. Such promptness of proceedings before the Third section of the Constitutional Court eliminates the possibility of dismissing similar constitutional complaints on the same grounds as those in this case, as well as in cases Peša v. Croatia and Hađi v. Croatia.

The Government considers that the formation of this new Section of the Constitutional Court, as well as its recent practice and proven promptness in proceedings, constitute sufficient warranty for ensuring that no further violations of this kind occur.

Just satisfaction was paid to the applicant on July 2 2011, and payment information was delivered to the Department for the Execution of Judgments of the ECtHR on July 14 2011.

In light of the measures taken, considering the facts of the case established by the ECtHR, the Government deems that no other measures (individual or general) are required to assure that no future violations of this kind occur.

Therefore, the Government proposes to the Committee of ministers the closure of the execution supervision procedure in the Peša group, and the adoption of a final resolution (Article 46 paragraph 2 of the Convention in relation to Rule 17 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements).

In its judgment, the ECtHR found a violation of article 5 § 4 of the Convention, based on the failure of the Constitutional Court to speedily decide on the Iawfulness of the applicant’s detention.

The procedure before the Constitutional Court lasted for 34 days. While the case was pending before the Constitutional Court, the impugned decision became inoperative due to the fact that the court competent for ordering detention (Osijek Municipal Court) issued a fresh decision extending applicant’s detention. Therefore, the applicants’ constitutional complaint was declared inadmissible.

Considering the nature of the violation, no individual measures are necessary (nor possible).

The judgment has also been disseminated to the Constitutional Court, the Supreme Court, the County court in Osijek and the Municipal Court in Osijek. Therefore, the relevant authorities have been informed of the findings of the ECtHR in this case.

The Third Section established by this Decision decides on constitutional complaints in cases which require special promptness, such as complaints relating to the constitutionality of detention.

The Government considers that the formation of this new Section of the Constitutional Court is sufficient warranty for ensuring that no further violations of this kind occur.

Just satisfaction rewarded to the applicant has been paid on November 25 2010, and payment information on a prescribed form was delivered to the Execution’s department on March 28 2011.

In light of all measures taken, considering the facts of the case established by ECtHR, the Government deems that no other measures (individual or general) are required to assure that no future violations of this kind occur.

Therefore, the Government proposes to the Committee of ministers the closure of the execution supervision procedure, and the adoption of a final resolution (Article 46 paragraph 2 of the Convention in relation to Rule 17 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements).

1 Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies

2 See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies.

	Case name (App. No.)	Judgment of	Final on
1	Peša (40523/08)	08/04/2010	08/07/2010
2	Getoš-Magdić (56305/08)	02/12/2010	02/03/2011
3	Hađi (42998/08)	01/07/2010	01/10/2010

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You are here: BAILII >> Databases >> European Court of Human Rights >> Pesa and 2 other cases v Croatia - 109/20 [2011] ECHR 2125 (2 December 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/2125.html Cite as: [2011] ECHR 2125