In the case of Dervishi v. Croatia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
AnatolyKovler, President,
NinaVajić,
PeerLorenzen,
ElisabethSteiner,
KhanlarHajiyev,
MirjanaLazarova Trajkovska,
JuliaLaffranque, judges,
andSřren Nielsen, Section Registrar,
Having deliberated in private on 4 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
67341/10) 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 Januz Dervishi (“the
applicant”), on 9 October 2010.
The applicant was represented by Mr G.
Marjanović, a lawyer practising in Rijeka. The Croatian Government (“the
Government”) were represented by their Agent, MsŠ. Stažnik.
On 5 September 2011the complaints concerning
thealleged lack of reasoning and excessive length of the applicant’s pre-trial
detentionwere communicated to the Government. 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 1966 and lives in Rijeka.
On 29 April 2008 the applicant was sentenced by a
first-instance judgment of the Rijeka Municipal Court (Općinski sud u
Rijeci) to one year and ten months’ imprisonment on charges of extortion.
He was not sent to serve the sentence.
It appears that another set of criminal
proceedings was also pending against the applicant in the Rijeka Municipal
Court on charges of making usurious contract and the obstruction of justice.
1 Criminal proceedings against the applicant
On 15 May 2008 aninvestigating judge of the
Rijeka County Court (Županijski sud u Rijeci) openedan investigation in
respect of the applicant in connection with a suspicion that in April 2000 he
had organised the shipment of 6.1 kilograms of heroin from the Czech Republic
to Italy and that during May and June 2002 he had organised the distribution of
heroin in Croatia.
On 26 May 2008 the applicant lodged an appeal
against the decision to open the investigation and on 30 May 2008 a three-judge
panel of the Rijeka County Courtdismissed the appeal as ill-founded.
The investigating judge heard evidence from
witnesses L.I. and D.Z. on 10 and 24 June 2008.
On 24 June 2008 the applicant lodged a
constitutional complaint with the Constitutional Court (Ustavni sud
Republike Hrvatske) against the decision to open the investigation.
The investigating judge heard evidence from witness
Ž.D. on 15 July 2008 and from the applicant on 18 July 2008. On 23 July
2008 the investigating judge heard V.X., another suspect in the same case.
On 23 July 2008the investigation was extended to
V.X.
On 25 September 2008 the Constitutional Court
declared the applicant’s constitutional complaint against the decision of 15
May 2008 opening the investigation inadmissible on the ground that it did not
concern a final decision by which a criminal charge had been determined.
On 22 December 2008 witness K.Š. was heard by
the Czech police and a written record of her oral statement was transmitted to
the Rijeka County Court.On 9 March 2009 the investigating judge commissioned an
expert report on the applicant’s intercepted telephone conversations. The
expert report was submitted to the court on 17 March 2009.
The Rijeka Division of the State Attorney’s
Office for the Suppression of Corruption and Organised Crime (Državno
odvjetništvo, Ured za suzbijanje korupcije i organiziranog kriminaliteta,
Odsjek u Rijeci; hereinafter the “Rijeka State Attorney’s Office”) indicted
the applicant and V.X. in the Rijeka County Court on 2 April 2009, on charges
of conspiracy to supply heroin from the Czech Republic to Italy in April
2000.On 15 April 2009 the applicant lodged an objection against the
indictment arguing that it had numerous substantive and procedural flaws.The
objection was dismissed on 20 May 2009 by a three-judge panel of the Rijeka
County Court as ill-founded.
A hearing scheduled for 20 June 2009 was
adjourned because the applicant’s lawyer was unable to attend.
At a hearing on 23 September 2009 the applicant
and witnesses Ž.D., D.Z. and L.I. gave oral evidence.
Another hearing was held on 24 September 2009
where the anonymous witness Ž. gave evidence. The parties made a proposalthat
all documents concerning the proceedings in Italy in respect of the same case
be obtained by the court. The presiding judge accepted the request.
At a hearing on 29 October 2009 the parties made
further proposals for evidence. The presidingjudge ordered that two witnesses
be heard.
At a hearing on 3 December 2009 witness E.M.
gave evidence.Another hearing, scheduled for 26 January 2010, was adjourned
because witness K.Š. did not appear.
At a hearing on 23 April 2010 witnessK.Š. gave
evidence via video link fromPrague. The presiding judge established that the
Italian authorities had submitted certain documents but not all, and requested
them to also submit the audiorecordings of the intercepted telephone
conversations.
Hearings scheduled for 24 and 25 May 2010 were
adjourned because the audiorecordings had not been received from the Italian
authorities.
At a hearing on 18 June 2010 the presidingjudge
established that the Italian authorities had not submitted the audiorecordings
and the hearing was adjourned. Another hearing scheduled for 6 July 2010 was
adjourned for the same reason.
Hearings scheduled for 13, 14 and 15 September
2010 were adjourned becausethe audiorecordings had not been received and
because a member of the trial panel could not attend.
Hearings scheduled for 14 and 15 October 2010
wereadjourned becausethe audiorecordings had not been received.
On 18 November 2010 an official of the Ministry
of Justice (Ministarstvo Pravosuđa Republike Hrvatske)informed the
presiding judge that she had contacted the Italian authorities, who had
informed her thatsome of the requested documents had been sent and that they
were still searching for the audio-recordings.
A hearing scheduled for 22 November 2010 was
adjourned because the presiding judge and another member of the panel had other
obligations. Another hearing, scheduled for 23 November 2010, was also
adjourned becausea member of the trial panel could not attend owing to a death
in her family.
At a hearing on 9 December 2010the
presidingjudge established that the Italian authorities had not submitted the
audiorecordings and the hearing was adjourned.
On 1 March 2011 another hearing was held where
the presidingjudge again established that the Italian authorities had not
submitted the audiorecordings and the hearing was adjourned.
The criminal proceedings against the applicant
are still pending.
2. Decisions on the applicant’s detention
The applicant was arrested on 14 May 2008 on
suspicion of trafficking in heroin.
The investigating judge heard the applicant on
15 May 2008 and ordered his detention under Article 102 § 1(2) of the Code of
Criminal Procedure (risk of tampering with evidence). The relevant part of the
decision reads:
“... the investigating judge has to hear evidence from
witnesses ‘Ž.’ and Ž.D. and seek information about the witnesses L.O. and K.S.,
called by the State Attorney, in order to hear them as witnesses. Therefore, it
is obvious that there are circumstances indicating that, if released, the
defendant might interfere with the conduct of theinvestigation by suborning the
witnesses.”
The Rijeka State Attorney’s Office lodged an
appeal on 16 May 2008, arguing that the applicant should also have been detained
under Article 102 §§ 1(3) and (4) of the Code of Criminal Procedure (risk of
reoffending and gravity of charges).The applicant also lodged an appeal,
arguing that there wasnoevidencethat he might suborn witnesses.
On 23 May 2008 a three-judge panel of the Rijeka
County Court allowedthe appeal by the State Attorney’s Office, quashed the
impugned decision on the ground that it was not sufficiently reasoned in terms
of the detention not being ordered under Article 102 §§ 1(3) and (4) of the
Code of Criminal Procedure(risk of reoffending and gravity of charges), and
remitted the case to the investigating judge.
The investigating judge ordered the applicant’s further
detention on 26 May 2008, againunder Article 102 § 1(2) of the Code of Criminal
Procedure (risk of tampering with evidence), giving the same arguments as
before. As to the matter of detention under Article 102 §§ 1(3)and (4) of the Code
ofCriminal Procedure(risk of reoffendingand gravity of charges) the
investigating judge noted:
“ ... the investigating judge considers thatthe evidence in the
case file does not show that there are any circumstances justifying the fear
that the defendant might reoffend. The fact that a criminal complaint was
lodged by the [Primorsko-goranska Police Department] in respect of two other
offences of drug abuse under Article 173 § 2 of the [Criminal Code] does not
suggest any likelihood of reoffending at this stage of the investigation,
especially as no investigation was opened in respect of those two offences.
As to the proposal of pre-trial detention under Article 102 §
1(4), the investigating judge did not accept it because the material in the
case file does not point to a particularly serious offence, especially as it
was allegedly committed in April 2000 in the Czech Republic and in June 2002
...”
The applicant lodged an appeal on 29 May 2008,
which was dismissed by a three-judge panel of the Rijeka County Court on 30 May
2008. The courtheld that reasonable suspicion existed that the applicant had
committed the offence and that thewitnesses to be heard by the investigating
judge, namely Ž.D., L.O. and K.S., had knowledge related to the charge
ofsupplying drugsthatjustified the fear that the applicant might suborn them if
released.
The investigating judge further extended the
applicant’s detention on 13 June 2008, under Article 102 § 1(2) of the Code of
Criminal Procedure (risk of tampering with evidence), stating that witnesses
Ž.D., A.P., D.Z. and K.S. were yet to be heard.
The applicant lodged an appeal on 18 June 2008,
where he argued, relying on the Court’s case-law, that there was no indication
whatsoever that he might influencethe witnesses in question. The fact that the
witnesses had yet to be heard could not suffice to conclude that there was a
risk that he would try to influence them.
On 20 June 2008 a three-judge panel of the Rijeka County Court dismissed the applicant’s appeal, finding that the information in the
casefile revealed that the applicant had had close contacts with witness Ž.D.
which justified the fear that he might attempt to influence that witness.
The applicant lodged a constitutional complaintagainst
that decisionwith the Constitutional Courton 24 June 2008,arguing, inter
alia, that the fact that he was close to Ž.D. could not justify his
detention,as there was no indication of his intention to suborn that witness.
The investigating judge extended the applicant’s
detentionon 14 July 2008 under Article 102 § 1(2) of the Code of Criminal
Procedure (risk of tampering with evidence), stating that witness Ž.D. had not
yet given evidence and that a request for the investigation to be extended to
cover another person and another sale of heroin had been lodged, all of which
indicated a danger of “interference with further criminal proceedings by
suborning witnesses and other participants”.
The applicant lodged an appealagainst that
decision on 16 July 2008, arguing that the fact that a witness had to be
heard was not a sufficient reasonto keep him in detention.
Athree-judge panel of the Rijeka County Court
dismissed that appeal on 18 July 2008, stating that Ž.D., who had had close
contacts with the applicant, had not yet been heard.
After the witnessŽ.D. had been heardby the
investigating judge on 22 July 2008, the applicant lodged a request for
release, arguing that there was no longer any reason for his detention.
On 20 August 2008 the applicant lodged a
constitutional complaint with the Constitutional Court against the decision of thethree-judge
panel of the Rijeka County Court of 18 July 2008, arguing that witness Ž.D. had
been heard and that, therefore, the reason for which he had been detained had
ceased to exist.
The investigating judge further extended the applicant’s
detention on 12 September 2008,under Article 102 §§ 1(3) and (4) of the
Code of Criminal Procedure (danger of reoffending and gravity of charges). The
relevant parts of the decision read:
“As to the extension of detention under Article 102 § 1(3) of
the CCP, the facts from the case file show that the first defendant, Januz
Dervishi,was sentenced by a first‑instance judgment of the Rijeka
Municipal Court, and that a further set of criminal proceedings is
pending....Therefore it is obvious that there are circumstances which suggest a
risk of reoffending.
The extension of detention under Article 102 § 1(4) of the CCP
also appears necessary as the decisions adopted during the investigation show
that the first defendant, Januz Dervishi, is charged with trafficking in high
quantities of prohibited drugs on the territory of several European countries,
which shows that the alleged offence is particularly serious.”
On 18 September 2008 the applicant lodged an
appeal against the above decision, arguing that while it was true that he had
been convicted of extortion that judgment had not yet become final. In any case
being detained for a long time in fact amounted to serving of the sentence.
That conviction could in no way indicate that there was a danger of his reoffending.
Such allegations were entirely unsupported by any relevant reasoning, in
particular in view of the fact that he had never been prosecuted, let alone
convicted, for a drug-related offence. Furthermore, the criminal charges held
against the applicant in the proceedings at issue dated back to 1999 – a
further indication that there was no danger ofhis reoffending.
The applicant also argued that the investigating
judge had already refused to remand him in custody under Article 102 §§ 1(3)
and (4) of the Code of Criminal Procedure at the beginning of the proceedings, in
spite ofthe State Attorney’s Office’s request to do so.
As regards the gravity of the charges, the
applicant argued that no particular reasoning had been put forward on that
score.
A three-judge panel of the Rijeka County Court
dismissed the appealon 25 September 2008. In addition to the fact that the
applicant had been previously finally convicted and also convicted at firstinstance
ofextortion, it noted that a further set of criminal proceedings against him
was pending before the Rijeka Municipal Court on five different charges, which
showed a tendency to break the law. Also, the charge of trafficking in a large
amount of heroin was a particularly serious one.
On the same date the Constitutional Court
declared the applicant’s constitutional complaint of 24 June 2008 inadmissible
on the ground that a fresh decision on the applicant’s detention had been
adopted in the meantime.
On 21 October 2008 the Constitutional Court
declared the applicant’s constitutional complaint of 20 August 2008
inadmissible, on the same ground.
On 13 November 2008 the investigating judge
extended the applicant’s detentionunder Article 102 §§ 1(3) and (4) of the Code
of Criminal Procedure, reiterating the arguments from his decision of
12 September 2008.
The investigating judge again extended the
applicant’s detentionon 14 January 2009, under Article 102 §§ 1(3) and (4)
of the Code of Criminal Procedure,reiterating the same arguments from his
previous decisions.
The applicant lodged an appeal against the above
decisionon 19 January 2009, arguingthat he had never been convicted of any
drug‑related offence and that the decision was not sufficiently reasoned.
On 22 January 2009a three-judge panel of the Rijeka County Court dismissed the applicant’s appeal, reiteratingthat he had been breaking
the law for a longtime, which suggested that there was a genuine risk that he
would reoffend. It also held that trafficking in a large amount of heroin was a
particularly serious charge and therefore justified his detention.
The investigating judgeextended the applicant’s
detentionon 13 March 2009, again under Article 102 §§ 1(3) and (4) of the
Code of Criminal Procedure, reiterating the arguments from his previous
decisions.
On 18 March 2009 the applicant lodged an appeal
and on 20 March 2009 a three-judge panel of the Rijeka County Court dismissed
the appeal,reiterating its previous arguments.
On 8 April 2009, after the applicant had been
indicted in the Rijeka County Court,a three-judge panel of that court extended
the applicant’s detention, again under Article 102 §§ 1(3) and (4) of the Code
of Criminal Procedure. The relevant part of the decision reads:
“The first accused, Januz Dervishi, has already been convicted
for making serious threats under Article 129 § 3 of [the Criminal Code] and
there are two further sets of criminal proceedings pending against him. In one
of them he was found guilty by a first-instance court of attempted extortion
under Article 234 in conjunction with Article 33 of the CC, which suggests that
heis not a law-abiding citizen. This, combined with the fact that he is
unemployed and has no regular source of income,amounts to special circumstances
under Article 102 § 1(3) of the CCP whichjustify the suspicion that he might
reoffend...
It is held against the above-mentioned accused that in April
2000, in Prague, in the CzechRepublic, he organised the transport of 6.1
kilograms of heroin to Milan, Italy, in order to make a profit by selling the
drugs. The quantity of the drug, which was to be distributed on the narcotics
market, represented a grave danger, particularly for the younger population.
Also,Januz Dervishi showed perseverance in organising the criminal activity, in
that he engaged the second accused, V.X., to find a reliable courier to
transport the drugs from the Czech Republic to Italy, and then, with help of
three other unknown men, he hid the drugs in a car. This, together with the
international aspect of the offence,adds up to circumstances which
significantly differ from the usual manner in which the offence at issue is
committed andrenders thecircumstances of the offence particularly serious,
justifying the extension of the detention under Article 102 § 1(4) of the CCP.
...”
On 14 April 2009 the applicant lodged an appealagainst
the above decision with the Supreme Court (Vrhovni sud Republike Hrvatske).
Concerning his previous conviction, he argued that he had been convicted of
threatening behaviour in 2006 in circumstances where the injured party had
refused to repay a loan. Criminal proceedings on charges of fraud were pending
against that person in connection with the same situation. The applicant’s
previous conviction thus had no relevance and no connection whatsoever with the
charges against him in the proceedings in hand and could in no way indicate a
risk of his reoffending.
As to the statement that he was unemployed, he
argued that before he had been detained he had been employed, and that since he
had been in detention for a longer period of time, he obviously could not be
employed. However, he did have a source of income as his spouse and he owned
property which was let.
The Supreme Court dismissed the applicant’s
appealon 29 April 2009. It endorsed the reasoning of the Rijeka County Court
and added that the applicant had been convicted of threatening behaviour and
that two other sets of criminal proceedings, on charges of extortion, were
pending against him.
On 5 June 2009 the applicant requested the
Rijeka Municipal Court to be sent to serve his prison term on the basis of the
first-instance judgment of that courtof 29 April 2008 sentencing him to one
year and ten months’ imprisonment. On 10 June 2009 his request was accepted by
the Rijeka Municipal Court but the applicant could not start serving his prison
sentence as long as his pre-trial detention in the proceedings concerning the
heroin trafficking charges continued.
A three-judge panel of the Rijeka County Court
extended the applicant’s detentionon 29 June 2009, again under Article 102 §§
1(3) and (4) of the Code of Criminal Procedure, reiterating its previous
arguments.
The applicant lodged an appealagainst that
decision with the Supreme Courton 2 July 2009, reiterating his previous
arguments.
His appeal was dismissedon 17 July 2009 by the
Supreme Court, which endorsed the reasoning of the Rijeka County Court.
On 17 September 2009 a three-judge panel of the
Rijeka County Court further extended the applicant’s detention under Article 102
§§ 1(3) and (4) of the Code of Criminal Procedure, reiterating the same
arguments as in its previous decisions.
On 21 September 2009 the applicant lodged an
appeal with the Supreme Court and on 5 October 2009 the Supreme Court dismissed
it as ill-founded.
At a hearing on 29 October 2009 the applicant’s
lawyers requested that the trial court terminate his detention so that he could
start serving a prison sentence imposed on him in the criminal proceedings on
charges of extortion. They explained that it would allow the applicant to work
in prison and in any event he would be accommodated in better conditions. They
also pointed out that documents had been requested from the Italian authorities
which, based on their experience, would take a long time toobtain.
The request was denied by the trial court. As
regards the danger of reoffending, it held that there was a reasonable
suspicion that the applicant had purchased 6.1 kilograms of heroin with the
intention of selling it on, and with that aim organised its transport from Prague to Milan. This conduct indicated a high degree of criminal resolve for monetary
gain. Furthermore, he had been convicted of threat and extortion and another
set of criminal proceedings was pending against him. He had no regular
employment. All these circumstances showed a risk that, if released, he would
reoffend.
As regards the gravity of the offence, the trial
court held that the amount of heroin the applicant had purchased for further
sale was such as to put at risk the health of a large number of people and that
the criminal activity spanned several countries, which gave it an international
dimension.
The trial court also indicated that the fact
that the applicant had been convicted in another set of criminal proceedings
and had requested to be sent to serve the sentence had nobearing on his
detention in the current proceedings. In its decision the trial court noted:
“Namely, under Article 355 paragraph 3 of the CCP, the first
accused could have been sent to serve the prison sentence before the judgment
became final only if he had been detained in connection with the proceedings in
which he made the request. However, he lodged his request [with the Rijeka
Municipal Court] on 5 June 2009, and the order was passed on 10 June 2009, and
at that time the accused had not been detained in those proceedings because he
had been detained in these proceedings since 14 May 2008.”
On 4 December 2009 a three-judge panel of the
Rijeka County Court extended the applicant’s detention, under Article 102 §§
1(3) and (4) of the Code ofCriminal Procedure, reiterating the same arguments
as in its previous decisions.
A three-judge panel of the Rijeka County Court
again extended the applicant’s detentionon 10 February 2010, under Article 102
§§ 1(3) and (4) of the Code ofCriminal Procedure.
The applicant lodged an appeal with the Supreme
Court against the latter decisionon 15 February 2010, but on 19 February 2010
the Supreme Court dismissed his appeal, endorsing the reasoning of the Rijeka
County Court.
On 15 March 2010 the applicant lodged a
constitutional complaint with the Constitutional Court, arguing, inter alia,
that he had been indicted a year earlier and that the proceedings were not
progressing at all, since the evidence thus far obtained did not support the
charges against him, and that there was therefore no longer a reasonable
suspicion that he had committed the criminal offence of trafficking in heroin.
He also challenged the grounds for his detention, reiterating in substance his
previous arguments.
The Constitutional Court dismissed the
complainton 1 April 2010, endorsing the reasoning of the lower courts.
On 19 April 2010 a three-judge panel of the
Rijeka County Court extended the applicant’s detention, again under Article 102
§§ 1(3) and (4) of the Code of criminal procedure, reiterating its previous
arguments as to the risk of reoffendingand the gravity of the charges.
At a hearing held on 23 April 2010 the applicant
requested to be released,but the trial court dismissed his request.
At a hearing held on 18 June 2010 the applicant
again requested to be released. His lawyer pointed out that the length of the
applicant’s detention contravened the right to a trial within a reasonable time
and the principle of proportionality. He asked the trial court to replace the
detention with any other preventive measure it deemed appropriate, such as
regular reporting to the police, even every two hours if necessary.
On 29 June 2010 a three-judge panel of the
Rijeka County Court refused the request for release and extended the
applicant’s detentionunder Article 102 §§ 1(3) and (4) of the Code ofCriminal Procedure.
It reiterated its previous arguments as to the grounds for the detention and
pointed out that the principle of proportionality had not been infringed since
the applicant was charged with a criminal offence punishable by long-term
imprisonment and that he had been detained only fora little over two years.
A three-judge panel of the Rijeka County Court
extended the applicant’s detentionon 6 September 2010, again under Article 102 §§
1(3) and (4) of the Code ofCriminal Procedure, reiterating its previous
arguments. The applicant lodged an appeal, which the Supreme Court dismissed on
1 October 2010, endorsing the reasoning of the Rijeka County Court.
On 12 November 2010 the applicant lodged a
constitutional complaint with the Constitutional Court. He argued, inter
alia, that the investigation had lasted an unreasonably long time (almost
one year) and that the case was not progressing at all. He pointed out that
since he had been indicted,ten months earlier, only three witnesses had been
heard and there were delays in obtaining evidence from the Czech Republic and Italy.
The Constitutional Court dismissed his
complainton 26 November 2010,endorsing the arguments of the lower courts.
At a hearing held on 9 December 2010 the
applicant requested to be released.His lawyers pointed out that there had been
significant delays in obtaining evidence from the Italian authorities. They
argued that the last hearing had been held at the beginning of April 2010 and
that since then nothing else had happened in the proceedings;in their view
this, combined with the fact that the applicant had been detained for over two
years and that he had a sick wife and a teenage child, required that he be
released from detention pending the arrival of the evidence from Italy.
On the same day the Rijeka County Courtended the
applicant’s detention. The relevant part of the decision reads:
“...the accused has been detained since 14 May 2008, i.e. two
years and almost seven months, while the maximum period of pre-trial detention
is three years, with the possibility of extension by an additional six months
since the detention during the investigation lasted more than six months.
Also, the accused was indicted on 2 April 2009 on charges that
he had committed the offence in April 2000, i.e. ten and half years ago. Most
of the witnesses were heard in September and December 2009 and then one
additional witness from the CzechRepublic was heard via video link on 23 April
2010. Furthermore, in order to obtain the relevant documents from Italy,
particularly the audiorecordings of intercepted telephone conversations, the last
request was sent from this court through the Ministry of Justice on 5 May 2010,
and an attempt was made to speed up the delivery of the documents through the
liaison officer of the State Attorney’s Office in EUROJUST but also through
telephone conversations with the Ministry of Justice.
In this period no other evidence has been taken or examined in
the trial and, up to the date of the last hearing on 9 December 2010, the
documentation was never submitted to this court.
Therefore, having in mind the period of time which has lapsed
since the alleged offence with which the first accused was charged was
committed, the fact that he was never finally convicted for a crime related to
drug abuse, the fact that the time he has spent in detention is approaching its
maximum limit, but also the uncertaintyas to how long it will take to obtain
the relevant evidence, this court believes that the grounds for detention on
which the accused has been detained are no longer significant enough to render
the detention necessary. Also any further period of detention would amount to
serving a sentence. ...”
The Rijeka State Attorney’s Office lodged an
appeal with the Supreme Court against that decision, arguing that the Rijeka
County Court had misinterpreted the relevant facts.
On 22 December 2010 the Supreme Court revisited
the Rijeka County Court’s decision and extended the applicant’s detention under
Article102 §§ 1(3) and (4) of the Code ofCriminal Procedure, reiterating its
previous arguments and concluding that the detention was still necessary. As to
the principle of proportionality, it pointed out that the period of detention
was not a crucial issue as the gravity of the offence and the sentence that the
accused risked incurring were to be taken into account.
The applicant lodged another constitutional
complaint with the Constitutional Courton 14 February 2011. He again pointed
out the significant delays in the proceedings and, relying on the Court’s case
law, argued that there were no sufficient grounds justifying his pre-trial
detention.
On 22 February 2011 the Constitutional Court
dismissed his complaint, endorsing the arguments of the Supreme Court.
On 23 February 2011 the applicant’s lawyer
informed the Rijeka County Court, the Rijeka State Attorney’s Office and the
policethat the applicant had left Croatiaowing to a death in his family after
he had been released from detention by the Rijeka County Court’s decision of
9 December 2010. However, since the next hearing was scheduled for
1 March 2011 he would be returning to Croatia in time for the trial. His
lawyer also informed the authorities of the exact date and place of his arrival
in Croatia.
On 27 February 2011 the applicant returned to Croatia and he was again placed in detention.
At a hearing held on 1 March 2011 the applicant
asked to be released. His lawyer pointed out the significant delays in
obtaining the evidence from the Italian authorities and requested that the
detention be replaced with some other measure, such as regular reporting to the
police, noting that the applicant had voluntarily returned todetention after
the order for his release was revoked by the Supreme Court.
That request was refused on 3 March 2011 by a
three-judge panel of the Rijeka County Court.
On 29 April 2011 a three-judge panel of the
Rijeka County Courtextended the applicant’s detention, again under Article 102
§§ 1(3) and (4) of the Code ofCriminal Procedure, reiterating its previous
arguments. On5 May 2011 the applicant lodged an appeal with the Supreme
Court against that decision.
On 18 May 2011 the Supreme Court dismissed the
applicant’s appeal, reiterating its previous arguments. As to the applicant’s
complaints about the violation of the principle of proportionality andthe
delays in the proceedings, that court noted:
“ ... the-first instance court correctly assessed that the
importance of the grounds for detention under Article 102 paragraphs 1(3) and
(4) of the CCP, on which the accused has been detained, still justify his
detention. The fact that the accused has been detained for two years and almost
ten months, not three years as he incorrectly suggests, does not violate the
principle of proportionality. ... having in mind also the complexity of the
case and the number of actions taken during the proceedings, it cannot be
claimed that the authorities in the criminal proceedings have not demonstrated
particular diligence. ...”
Against that decision the applicant lodged a
constitutional complaint with the Constitutional Court. He argued, inter
alia, that he had been detained for three years and that for one year and
five months there had been no progress in the proceedings.
On 8 July 2011 the Constitutional Court
dismissed the applicant’s complaint as ill-founded. The relevant part of the
decision reads:
“[The applicant] argues that there was a violation of his
constitutional right to be “promptly, according to law, brought before a court
and within a period established by law acquitted or convicted” – Article 25
paragraph 2 of the Constitution; Article 5 paragraph 4 of the
[Convention].
However, the constitutional right concerned does not mean that
every accused who is detained must be “promptly” brought to trial regardless of
the circumstances of the concrete case. This constitutional provision means
that the accused must be brought to trial within the time-limits established by
law, in order to determine the charges against him. The detainee’s right to be
tried “promptly” cannot interfere with the rights and duties of the competent
bodies in criminal proceedings to perform their duties with due care as to the
success of their mission. [Therefore] the length of detention cannot be
assessed without examination of all the circumstances of the concrete case,
such as the course and progress of the criminal or judicial investigation
(which in cases with an international element, such as this one, can vary
significantly), the [applicant’s] personal circumstances and his personality,
his behaviour before and after the deprivation of liberty, and other specific
facts which justify the fear that, if released, he might interfere with the
process of the obtaining of evidence or continue engaging in criminal
activities (judgment of the European Court of Human Rights inAleksandr
Makarov v. Russia, of 12 March 2009,§
130).”
The Constitutional Court also endorsed the reasoning of the
Supreme Court that there was no indication that the authorities had failed to
act with the necessary diligence.
The applicant’s detention was again extended on
18 July 2011 by a three-judge panel of the Rijeka County Court under Article 102
§§ 1(3) and (4) of the Code ofCriminal Procedure, reiterating its previous
arguments. The applicant lodged an appeal with the Supreme Court and on
1 August 2011 the Supreme Court dismissed it as ill-founded.
The applicant lodged a constitutional complaint
against that decision with the Constitutional Court and on 15 September 2011
the Constitutional Court dismissed it, reiterating its arguments from the
decision of 8 July 2011.
On 10 August 2011, relying on Section28 § 3of
the Office for the Suppression of Corruption and Organised Crime,athree-judge
panel of the Rijeka County Court extended the applicant’s detention for a
further six monthsunderArticle 102 §§ 1(3) and (4) of the Code ofCriminal Procedure,
reiterating its previous arguments.
The applicant lodged an appeal with the Supreme
Court and on 16 September 2011 the Supreme Court dismissed it as
ill-founded.
On an unspecified date in 2011 the applicant
lodged a constitutional complaint against the above decision, reiterating his
previous arguments.
On 11 January 2012 the Constitutional Court
dismissed the applicant’s constitutional complaint as ill-founded.
The applicant remained in pre-trial detention
until 1 February 2012, when the maximum period of the pre-trial detention
expired.
II. RELEVANT DOMESTIC LAW
The relevant parts of the Criminal Code (Kazneni
zakon, Official Gazette no. 110/1997, 27/1998) provide:
Deduction of Pre-Trial Detention and a Previously Served
Sentence
Article 63
“(1) The period of pre-trial detention, as well as any other
deprivation of liberty in connection with the criminaloffence, shall be
deducted from the sentence of imprisonment, long-term imprisonment, juvenile
imprisonment or a fine.
...”
Abuse of Narcotic Drugs
Article 173
“ ...
(2) Whoever, without authorisation, manufactures, processes,
sells or offers for sale or buys for thepurpose of reselling, keeps,
distributes or brokers the sale and purchase of, or, in some other wayand
without authorisation, puts into circulation, substances or preparations which
are by regulationproclaimed to be narcotic drugs shall be punished by
imprisonment for one to ten years, or by long-term imprisonment.
(3) If the criminal offence referred to in paragraph 2 of this
Article is committed while the perpetrator is part of a group or a criminal organisation,
or has organised a network to sell drugs, he shall be punished by imprisonment
for not less than three years or bylong-term imprisonment.”
The relevant provisions of the Code of Criminal
Procedure (Zakon o kaznenom postupku, Official Gazette nos.
110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provide as
follows:
Preventive Measures
Article 90
“(1) Where the conditions for ordering detention under Article
102 of this Code have been fulfilled, and where the same purpose may be
achieved by other preventive measures under this Article, the court shall order
that one or more preventive measures are to be applied ...
(2) Preventive measures are:
1) prohibition on leaving one’s place of residence;
2) prohibition on being in a certain place or area;
3) obligation on the defendant to report periodically to a
certain person or a State body;
4) prohibition on access to a certain person or on establishing
or maintaining contact with a certain person;
5) prohibition on undertaking a certain business activity;
6) temporary seizure of a passport or other document necessary
for crossing the State border;
7) temporary seizure of a driving licence.
...”
8. General Provisions on Detention
Section 101
“(1) Detention may be imposed only if the same purpose cannot
be achieved by another [preventive] measure.
(2) 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 its duration, a
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) Judicial authorities conducting criminal proceedings shall
proceed with particular urgency when the defendant is in detention and shall
review ex officio 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
Section 102
“(1) Where a reasonable suspicion exists that a person has
committed an offence, that person may be placed in detention:
1. where there are circumstances which show that there is a
risk that [the defendant] will abscond [is in hiding or his or her identity
cannot be established etc.);
2. if there is a risk that he or she might destroy,
hide, alter or forge evidence or traces relevant for the criminal proceedings
or might suborn witnesses, or where there is a risk of collusion;
3. if special circumstances justify the suspicion that the
person concerned might reoffend;
4. where the charges relate to murder, robbery, rape,
terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence
carrying a sentence of at least twelve years’ imprisonment, or where detention
is justified by the modus operandi or other especially grave
circumstances of the offence.”
Article 109
“(1) Until the adoption of a first-instance judgment, pre-trial
detention may last for a maximum of:
1. six months for offences carrying a statutory maximum
sentence of three years’ imprisonment;
2. one year for offences carrying a statutory maximum sentence
of five years’ imprisonment;
3. eighteen months for offences carrying a statutory maximum
sentence of eight years’ imprisonment;
4. two years for offences carrying a sentence of more than
eight years’ imprisonment;
5. three years for offences carrying a sentence of long-term
imprisonment.
...”
Appeal against a decision ordering, lifting or extending a
custodial measure
Article 110
“(1) A defendant, defence counsel or the State
Attorney may lodge an appeal against a decision ordering, extending or lifting
a custodial measure, within two days thereof...
...”
14. Execution of Pre-Trial Detention and Treatment of
Detainees
Article 111
“(1) Pre-trial Detention shall be executed in accordance with
the provisions of this Code and other regulations based on it.
...”
Article 355
“ ...
(3) When the court imposes a punishment of imprisonment, the
accused who is in detention may, by a decision of the president of the panel,be
ordered to serve the sentence even before the judgment becomes final, if he so
requests.”
The relevant provision of the Office for the
Suppression of Corruption and Organised Crime Act (Zakon o Uredu za
suzbijanje korupcije i organiziranog kriminaliteta, Official Gazette nos.
88/2001, 12/2002, 33/2005, 48/2005, 76/2007) provides as follows:
Section 28
“(1) Custody under Article 98 of the Code of Criminal Procedure
shall be extended to 48 hours.
(2) The total duration of the pre-trial detention in the above
proceedings, in the eventof a prolonged investigation (Article 204, paragraph 1
of the Code of Criminal Procedure) may be twelve months.
(3) If the pre-trial detention during the investigation was
extended under paragraph2 above, the total duration of the pre-trial detention
under Article 109 of the Code of Criminal Procedure shall be extended for six
months.”
The relevant provisions of the Enforcement of
Prison Sentences Act (Zakon o izvršavanju
kazne zatvora, Official Gazette nos. 190/2003; 76/2007;
27/2008; 83/2009; 18/2011; 48/2011) read as follows:
Basic Provisions
Section 1
“(1) This Act regulates the execution of prison sentences.
...”
The Use of Terms
Section 8
“The terms used in this Act have the following meaning:
1. A detainee is any person held in detention pursuant to a
pre-trial detention order.
...
3. An inmate is any person sentenced to a prison sentence for a
criminal offence, serving the prison sentence in a prison or in a jail.
...”
Criteria for sending a convict to serve a prison sentence
Article 49
“ ...
(4) If a convict’s pre-trial detention has been ordered or
extended in another set of criminal proceedings, the judge responsible for the
execution of the prison sentence shall send him to serve the prison sentence
which will start after the pre-trial detention has been lifted.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The applicant complained that thereasons put forward
by the national courts when extending his pre-trial detention were not relevant
and sufficient to justify his continued detention and that the length of his
pre‑trial detention had been excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be ... entitled
to trial within a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
A Admissibility
1. Exhaustion of domestic remedies
(a) The parties’ arguments
The Government submitted that the applicant had
failed to lodgeappeals against the decisions of 13 November 2008, 4 December
2009, 19 April 2010 and 29 June 2010extending his detention, although he
could have done so under the domestic law. In the Government’s view he also
failed to put forward the same arguments he was nowraisingbefore the Court in
his appeals against the domestic courts’decisions extending his detention on
29 June 2009 and 17 September 2009. As to the other domestic court
decisions extending his detention, the Government pointed out that the
applicant had failed to address the issues raised before the Court in his
constitutional complaints. Instead he had lodged his constitutional complaints
as extraordinary remedies against the decisions of the Supreme Court, although
the Constitutional Court made it clear in its case-law that it was not a court
of “thirdinstance”.
The applicant argued that he had not lodged
appeals against the decisions extending his detention on 4 December 2009, 19
April 2010 and 29 June 2010 because he had requested to be released at the
hearings that followed those decisions, which essentially had the same
effect.The applicant disagreed with the Government about the nature and
substance of his constitutional complaints.
(b) The Court’s assessment
The
Court reiteratesthat under Article 35 § 1 of the Convention it
may only deal with a matter after all domestic remedies have been exhausted.
The purpose of the exhaustion rule is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged against them before
those allegations are submitted to the Court (see, among many other
authorities, Selmouni v. France
[GC], no. 25803/94, § 74, ECHR 1999-IV). The obligation to exhaust
domestic remedies requires an applicant to make normal use of remedies which
are effective, sufficient and accessible in respect of his Convention
grievances.
As to the alleged violations ofArticle 5
§ 3 of the Convention, the Court has already held that if a person alleges
a violation of this provision on account of the length of his detention in
circumstances such as those in the present case, he complains of a continuingsituation,
which should be considered as a whole and not divided into separate periods
(see Popov and Vorobyev v. Russia, no. 1606/02, § 71, 23 April 2009). In
this regard the Court considers that if the applicant made the domestic courts
sufficiently aware of his situation and gave them an opportunity to assess
whether his detention was compatible with his Convention right to a trial
within a reasonable time or release pending trial, it cannot be held that the
applicant has failed to comply with his obligation to exhaust domestic remedies
(see Popov and Vorobyev, cited above, § 71; and Šuput v.
Croatia, no. 49905/07,
§ 86, 31 May 2011).
The
Court notes that in the present case the applicant’s detention during the
investigation wasorderedunder Article 102 § 1(2) of the Code of Criminal
Procedure (risk of tampering with evidence) andtwice extended on the same
ground. His detention was then extended under Article 102 §§ 1(3) and
(4) of the Code of Criminal Procedure (risk of reoffending and gravity of
charges) four times during the investigation and twelve times during the trial
before the Rijeka County Court.
The
Court also notes that during the period of his pre-trial detention, the
applicant lodged fourteen appeals before the domestic courts and in addition
five requests to be released.He also lodged eight constitutional complaints
arguing, inter alia, that there had been no relevant and sufficient
grounds for his continued detention and that his pre-trial detention had been
excessively long.
Against
the above background, the Court considers that the applicant made the domestic
authorities sufficiently aware of his situation and gave them an
adequate opportunity to assess whether his detention was excessively lengthy.
The Court, therefore, concludes that the applicant has complied with his
obligation to exhaust domestic remedies and that the Government’s objection
must be rejected.
2. Conclusion
The Court notes that this part of the
application is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
The Court notes that there is no dispute
between the parties that the period to be taken into consideration began on 14
May 2008, when the applicant was arrested. There is also no dispute that the
applicant was released on 9 December 2010 and that he was again detained
between 27 February 2011 and 1 February 2012, when the maximum period of
his pre-trial detention under the relevant domestic law expired. The Government
pointed out that the period between 9 December 2010 and 27 February 2011
should not be taken into consideration as the applicant had not been detained
during that period.
In view of the fact that the applicant’s
pre-trial detention consisted of two separate periods, the Court firstly refers
to its judgmentin the Idalov v. Russiacase, where it found, as
regards the six-month rule, that an applicant is obliged to bring any complaint
which he or she may have concerning pre-trial detention within six months of
the date of the actual release. It follows that periods of pre-trial detention
which end more than six months before an applicant lodges a complaint before
the Court cannot be examined, having regard to the provisions of
Article 35 § 1 of the Convention (see Idalov v. Russia [GC], no. 5826/03, § 130, 22 May 2012). However, in the
present case the applicant did comply with the six-month rule as he brought his
first application before the Court on 9 October 2010 in respect of the first
period of his detention and then he lodged further complaints on 6 September
and 3 October 2011 as regards the second period of his pre-trial detention.
According to the Court’s well-established
case-law, in determining the length of detention under Article 5
§ 3 of the Convention, the period to be taken into
consideration begins on the day the accused was taken into custody and ends on
the day when he was released (see, for example, Fešar v. the Czech
Republic, no. 76576/01, § 44, 13 November 2008)or whenthe charge was determined, even if only by a court of first
instance (see,Belevitskiy v. Russia, no. 72967/01, § 99, 1
March 2007; and Sizov v. Russia, no. 33123/08, § 44, 15 March 2011). Furthermore, in
view of the essential link between Article 5 § 3 of the Convention and
paragraph 1 (c) of that Article, a person convicted at first instance cannot be
regarded as being detained “for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an
offence”, but is in the position provided for by Article 5 § 1 (a), which
authorises deprivation of liberty “after conviction by a competent court” (see Labita
v. Italy [GC], no. 26772/95, §§ 145-147, ECHR 2000‑IV; and Kudła
v. Poland [GC], no. 30210/96, § 104, ECHR 2000‑XI).
Having in mind the above considerations, the
Court must first address the possible effect of the applicant’s conviction in
another parallel set of criminal proceedings (see paragraphs 5 and 63)on the
period to be taken into consideration in respect of his complaint under Article
5 § 3 of the Convention.
In this connection the Court firstly notes that
throughout his detention the applicant was remanded in custody in criminal
proceedings on charges of trafficking in heroin and on grounds specific to
those charges and connected solely with those proceedings. Secondly, the Court
also notes that in Croatia there exist two types of detention, differing in
terms of premises and regime. The first type is pre-trial detention. Detainees
are placed in detention centres rather than in ordinary prisons and are subject
to a specific regime as regards the organisation of their time, the right to
visits, the right to work in the prison, and so on. The second type is in
ordinary prisons, where convicted prisoners are accommodated. Once sentenced to
a prison term a convict is not transferred to a prison automatically, but only
on the basis of a specific order, and on his or her admission to a prison an
individual prison regime and programme is set up.
However, if pre-trial detention against the
convicted personhas been ordered or extended in another set of criminal
proceedings, that person cannot start to serve his prison term while in
pre-trial detention. The applicant in the present case asked the Rijeka
Municipal Court on 5 June 2009 to start serving his prison sentence on the
basis of the first-instance judgment of that court of 29 April 2008 concerning
the conviction of extortion.That request was allowed on 10 June 2009.
Nevertheless, he was not allowed to start serving his prison term as long as he
was detained in connection with the criminal proceedings against him on charges
of trafficking in heroin, which are the subject of the present application (see
paragraph 72).
Against the above background, the Court
considers that there was no causal connection between the applicant’s
conviction in another set of criminal proceedings and the deprivation of
liberty at issue (see M. v. Germany, no. 19359/04, § 88, ECHR 2009) and that his pre-trial detention in
the proceedings at issuenever coincided with servingany prison sentence
following his conviction in separate criminal proceedings (see, by contrast, Piotr
Baranowski v. Poland, no. 39742/05, §§ 14, 45, 2 October 2007).
Therefore, in these circumstances the Court considers that theapplicant’s
conviction in another set of criminal proceedings has no influence on the
overall period of his pre-trial detention which is to be examined in the
present case.
As
to the two periods of the applicant’s pre-trial detention, namely between 14
May 2008 and 9 December 2010 and between27 February 2011
and1 February 2012, the
Court considers that, according to its case-law, where such periods can
be examined before the Court having regard to the provisions of Article 35 § 1
of the Convention, a global assessment of the aggregate period is required (see,
for example, Smirnova v. Russia,nos. 46133/99 and 48183/99, § 66,
ECHR 2003‑IX (extracts), and, mutatis mutandis,Idalov,
cited above, § 130).
It follows that the period of the applicant’s
pre-trial detention to be taken into consideration began on 14 May 2008, the
date of the arrest, and ended on 1 February 2012, when the maximum period of
his pre-trial detention expired, less the period from 9 December 2010 to
27 February 2011, during which the applicant was released from detention,
which in total amounts to three years and six months.
2. The parties’ arguments
The applicant submitted that his detention had
been ordered and extended without justified and sufficient legal and
constitutional grounds and that his detention had been excessively lengthy, in
violation of the principle of speediness in acase where the defendant had been
deprived of his liberty. In his view the domestic authorities had failed to
demonstrate special diligence during the criminal proceedings and the higher
courts had also failed to address any of his complaints in that regard,
interpreting the grounds for deprivation of liberty very broadly and generally.
The Government,reiterating the reasons put
forward by the national courts, argued that the grounds for the applicant’s
detention had been relevant and sufficient throughout his detention. In the
Government’s view there was a justified fear that he might suborn the witnesses
and that he might reoffend. The Government also argued that the charges against
the applicant represented particularly grave circumstances which had justified
the applicant’s detention throughout the proceedings.As to the length of the
applicant’s detention, the Government pointed out that the case had been very
complex and that the domestic courts had displayed particular diligence in the
course of the proceedings. Moreover, they had constantly weighed the
proportionality of the detention against the public interests and the
applicant’s rights.
3. The Court’s assessment
(a) General principles
The Court reiterates that the issue of whether
a period of detention is reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in each case
according to its particular features. Continued detention can be justified in a
given case only if there are specific indications of a genuine requirement of
public interest which, notwithstanding the presumption of innocence, outweighs
the rule of respect for individual liberty (see, among other authorities, W.
v. Switzerland, 26 January 1993, § 30, Series A
no. 254-A; and Pantano
v. Italy, no. 60851/00, § 66, 6 November 2003).
It falls in the first place to the national
judicial authorities to ensure that in a given case the pre-trial detention of
an accused person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a genuine
requirement of public interest justifying, with due regard to the principle of
presumption of innocence, a departure from the rule of respect for individual
liberty, and set them out in their decisions dismissing the applications for
release. It is essentially on the basis of the reasons given in these decisions
and of the matters referred to by the applicant in his appeals, that the Court
is called upon to decide whether or not there has been a violation of Article 5
§ 3 of the Convention (see Kudła,
§ 110; and Labita, §
152, cited above,).
The persistence of reasonable suspicion that
the person arrested has committed an offence is a condition sine qua non
for the validity of the continued detention, but, after a certain lapse of
time, it no longer suffices: the Court must then establish whether the other
grounds cited by the judicial authorities continued to justify the deprivation
of liberty. Where such grounds were "relevant" and
"sufficient", the Court must also ascertain whether the competent
national authorities displayed "special diligence" in the conduct of
the proceedings (see,Toth v. Austria, 12 December 1991, § 67, Series
A no. 224; andBochev v. Bulgaria, no. 73481/01, § 55, 13 November
2008).
(b) Application
of these principles to the present case
The Court notes that in the present case the
applicant was detained on three different grounds: (1) risk of tampering with
evidence, (2) risk of reoffending and (3) gravity of charges. These grounds
were not, however, taken cumulatively during the entire period of his pre-trial
detention.
The Court notes that when the investigation was
opened in respect of the applicant on charges of trafficking in heroin, the
investigating judge ordered the applicant’s detention on the ground of therisk
of his tampering with evidence but did not order his detention on the ground of
the risk of reoffending and the gravity of the charges. On the same ground
(risk of tampering with evidence) the investigating judge extended the
applicant’s detention twice. However, when the evidence with which it was
feared that the applicant might tamper had been obtained by the investigating
judge, the applicant’s detention was then extended on the grounds of the risk
of reoffending and the gravity of the charges. This may in itself raise certain
doubts as to the way the investigating judge acted, since he, in respect of the
same grounds and having been aware of the same facts, acted differently when
ordering the applicant’s detention (see, mutatis mutandis,Mooren
v. Germany [GC], no. 11364/03, §
78, 9 July 2009).
The Court further notes that the applicant’s
detention during the trial stage of the proceedings was extended twelve times
on the grounds of (1) the risk of his reoffending and (2) the gravity of the
charges.
As to the risk of reoffending, the domestic
authorities relied on the fact that the applicant had been convicted of the
crime of making serious threats and that two sets of criminal proceedings were
pending against him which, in conjunction with the modus operandi of the
offence at issue, led them to the conclusion that the applicant might reoffend.
As to the gravity of the charges, the domestic authorities relied on the
international aspect of the offence and the quantity of drugs involved.
In this respect the Court reiterates that the
risk of reoffending, if convincingly established, may lead the judicial
authorities to place and leave a suspect in detention in order to prevent any
attempts to commit further offences. It is however necessary, among other
conditions, that the danger be a plausible one and the measure appropriate, in
the light of the circumstances of the case and in particular the past history
and the personality of the person concerned (see Clooth v. Belgium, 12 December
1991, § 40, Series A no. 225; and Paradysz v. France, no. 17020/05, § 71, 29 October 2009). In
addition, if the domestic authorities rely on the previous criminal
prosecutions against the applicant, they must assess the relevant risk,
including whether the previous facts and charges were comparable, either in
nature or in the degree of seriousness, to the charges in the pending
proceedings (see Popkov
v. Russia, no. 32327/06, § 60, 15 May 2008; and Shteyn
(Stein) v. Russia, no. 23691/06, § 115,
18 June 2009). The Court also reiterates, as regards the domestic courts’
reliance on the gravity of the charges, that it has repeatedly held that this
reason cannot by itself serve to justify long periods of detention (see, among
many other authorities, Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26
July 2001;Michta v. Poland, no. 13425/02, § 49, 4 May 2006; and Gultyayeva
v. Russia, no. 67413/01, § 186, 1
April 2010).
The Court considers, however, that it is not
necessary to examine further to what extentthese reasonswere relevant or
sufficient for the applicant’s prolonged detention, since the case in any event
reveals an infringement of his rights under Article 5 § 3 of the Convention for
the following reasons.
The Court notes that the material submitted to
it reveals thatafter the indictment was preferred on 2 April 2009, the trial
court effectively held four hearings where it examined the following evidence;
at a hearing on 23 September 2009 three witnesses were heard; one witness
was heard at the hearing on 24 September 2009; one witness was heard at the
hearing on 3 December 2009 and one witness was heard via video link from
Prague at the hearing on 23 April 2010. In addition, at the hearing on
24 September 2009 the trial court ordered that certain evidence be
requested from the Italian authorities.
The Court considerers at the outset that this
one-year period in which only six witnesses were heard cannot be considered to
satisfy the domestic authorities’ obligation to conduct the proceedings with
due diligence, particularlyin such a case as this, where the applicant had
already been detained for almost one year during the investigation (see Malkov
v. Estonia, no. 31407/07, § 51, 4
February 2010).
Furthermore, the Court notes that after all the
witnesses had given their evidence the trial court adjourned a total of eleven
hearings because the Italian authorities had failed to submit the requested
evidence and two hearings were adjourned on account of other professional and
private obligations of the members of the trial panel. This amounted in total
to one year and more than nine months during which the applicant was detained
without any progress ordevelopment in the proceedings. Moreover, as regards the
period after the applicant’s maximum period of detention had expired on
1 February 2012, the Government have not shown that there has been any
progress in the conduct of the proceedings. In these circumstances the Court
sees no reason to examine the background of the possible reasons for these
delays since, even taking into account the problems with obtaining evidence
from the Italian authorities,the primary
responsibility for delays rests ultimately with the State (see, mutatis
mutandis, Kulikowski v. Poland, no. 18353/03, § 50, 19 May
2009).
In this respect the Court notes that at no
stage of the proceedings was any consideration given to the possibility of
imposing alternative, less severe preventive measureson the applicant, such as
bail or police supervision, expressly foreseen by Croatian lawto secure the
proper conduct of criminal proceedings(see Drużkowski v. Poland, no. 24676/07, § 36, 1 December 2009). In
this connection, the Court would also reiterate that until his conviction, the
accused must be presumed innocent, and the purpose of Article 5 § 3 of the
Convention is essentially to require him to be released provisionally once his
continuing detention ceases to be reasonable (see Vlasov v. Russia, no.
78146/01, § 104, 12 June 2008; and Aleksandr Makarov v. Russia, no. 15217/07, § 117, 12 March 2009).
The Court
also notes that the applicant asked on several occasions for his detention to
be replaced by any preventive measure considered appropriate by the domestic
authorities and, although there were certain indications that the applicant
would comply with them,as hehad informed the authorities of his whereaboutsin
the period when he was released and had voluntarily returned todetention after
his release was revoked, the domestic authorities never gave any consideration
to those indications.
Against the above background, the Court
considers that the period of delays in the examination of evidence in the
course of the trial, which could possibly be tolerated if seen as isolated,
accumulated with a very long period of one year and more than nine months
without any progress or new development in the proceedings, and the fact that
the domestic authorities never gave any consideration to replacing the
applicant’s detention with other preventive measures, could not been seen as
other than irreconcilable with the requisite of “special diligence” in such
cases (seeToth, §§ 77and 78 and Malkov, § 51, cited above).
There has accordingly been a violation of
Article5 § 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 6 §§ 1
and 2 of the Convention about the length of the criminal proceedings against
him and that the wording of the national courts when extending his detention following
his indictment amounted to prejudging his guilt. He also complained under Article
13 of the Convention that he had no effective remedy in respect of his
Convention complaints. Finally he complained under Article 14 of the Convention
and Article 1 of Protocol No. 12 that he was discriminated against.
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 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.
III. 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 pecuniary and non-pecuniary damage.
The Government considered the applicant’s claim
excessive, unfounded and unsubstantiated because there was no causal link
between the violations complained of and the applicant’s financial
expectations.
Having
regard to all the circumstances of the present case, the Court accepts that the
applicant has suffered non-pecuniary damage which cannot be compensated solely
by the finding of a violation. Making its assessment on an equitable basis, the
Court awards the applicant EUR 3,600 in respect of non-pecuniary damage,
plus any tax that may be chargeable to him.
B. Costs and expenses
The applicant also claimed EUR 2,000 for the
costs and expenses incurred in the proceedings before the Court.
The Government considered that the applicant had
failed to substantiate his claim for costs and expenses in any respect.
154. 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.Making its assessment
on an equitable basis and in the light of its practice in comparable cases, the
Court considers it reasonable to award the applicant, who was legally
represented, the sum of EUR 2,000, plus any tax that may be chargeable to the
applicant on thatamount.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declaresthe complaint under Article 5 § 3
of the Convention concerning the length of and reasons for the applicant’s
pre-trial detention admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 5 § 3 of the Convention;
3. Holds
(a) that the respondent State is to pay the
applicant, within three monthsfrom the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the
following amounts, which are to be converted into Croatian kunas at the rate
applicable at the date of settlement:
(i) EUR 3,600 (three thousand six hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 September
2012, pursuant to Rule77§§2 and3 of the Rules of Court.
Sřren Nielsen Anatoly
Kovler
Registrar President
