In the case of Trifković v. Croatia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Anatoly Kovler, President,
Nina Vajić,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
36653/09) against the Republic of Croatia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Croatian national, Mr Milan Trifković
(“the applicant”), on 12 June 2009.
The applicant was represented by Mr T.
Vukičević, a lawyer practising in Split. The Croatian Government
(“the Government”) were represented by their Agent, Ms Š. Stažnik.
On 10 November 2010 complaints concerning the
lawfulness and length of the applicant’s detention and alleged flaws in the
procedure of challenging his pre-trial detention were 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 1976 and lives in Split.
A. Criminal proceedings against the applicant
An investigation was opened against the applicant
and twenty other individuals on 24 November 2006 by an investigating judge of
the Split County Court (Županijski sud u Splitu) in connection with a
suspicion that between 2003 and November 2006 they had organised distribution
of heroin in Dubrovnik and on the island of Korčula.
During the investigation, the investigating judge
heard evidence from a number of witnesses, ordered searches, seizures and
freezing of assets, and commissioned psychiatric, telecommunications and
financial expert reports.
Following an order by the investigating judge, on
24 November 2006 the police carried out a search of the applicant’s flat and on
5 February 2007 the psychiatrist submitted his report in respect of the
applicant. He found that the applicant had used drugs for a relatively short
period of time and had not developed an addiction.
On 15 May, 15 June, 8 August and 5 October 2007
the investigating judge established that all the necessary evidence had not
been obtained and asked the president of the Split County Court to extend the
investigation. The president of the Split County Court granted the requests and
the investigation was extended on each of those occasions.
The State Attorney’s Office for the Suppression
of Corruption and Organised Crime (Državno odvjetništvo, Ured za suzbijanje
korupcije i organiziranog kriminaliteta; hereinafter: “the State Attorney’s
Office”) indicted the applicant and sixteen others on 15 November 2007 in the
Split County Court on charges of conspiracy to supply heroin in Dubrovnik and on
the island of Korčula between 2003 and November 2006.
The applicant lodged an objection against the
indictment on 7 December 2007, arguing that it had numerous substantive
and procedural flaws. On 7 February 2008 the Split County Court sent the
indictment back to the State Attorney’s Office on the ground that it needed
further clarification.
The State Attorney’s Office submitted an amended
indictment against the applicant and sixteen others before the Split County
Court on 22 February 2008, reiterating the same charges of conspiracy to supply
heroin. On 5 March 2008 the applicant lodged an objection against the above
amended indictment, arguing that it had numerous substantive and procedural
flaws. A three-judge panel of the Split County Court dismissed the applicant’s
objection on 14 March 2008 as ill-founded.
At a hearing on 13 November 2008 the applicant
pleaded not guilty to the charges against him.
At hearings held on 17 and 18 December 2008 the
trial court heard evidence from two witnesses. Further hearings scheduled for
11 and 12 February 2009 were adjourned indefinitely as one of the
defendants had broken his leg and could not attend.
A hearing scheduled for 29 June 2009 was also
adjourned because the first accused had asked for members to be removed from the
trial panel.
Further hearings were held on 28 August, 8, 15, 16
and 28 September, 20, 21 and 22 October, 2, 3, 4, 17 and 18 November and 21 December
2009, 27 and 29 January, 15, 17, 18 and 19 February, and 15, 29 and 30 March
2010.
At a hearing on 13 May 2010 the applicant gave
oral evidence denying all the charges. At hearings held on 14, 17, 21 and 24
May 2010 the other accused gave oral evidence and the parties made their
closing statements.
On 24 May 2010 the Split County Court found the
applicant guilty as charged and sentenced him to three years and six months’
imprisonment.
The applicant lodged an appeal with the Supreme
Court (Vrhovni sud Republike Hrvatske) against the first-instance
judgment on 31 January 2011.
The appeal proceedings are still pending.
B. Decisions on the applicant’s detention
On 22 November 2006 the applicant was arrested
on suspicion of supplying heroin.
The investigating judge of the Split County
Court heard the applicant on 23 November 2006 and remanded him in custody for a
further forty-eight hours under Article 98 § 2 of the Code of Criminal
Procedure. The applicant appealed against this decision, arguing, inter alia,
that he was permanently employed by company K.-V. and had not been engaging in
any criminal activity. To support his arguments he submitted his employment
contract with company K.-V. On 24 November 2006 a three-judge panel of the Split County Court dismissed his appeal.
On 24 November 2006 the investigating judge remanded
the applicant in custody under Article 102 § 1(3) and (4) of the Code of
Criminal Procedure (risk of reoffending and gravity of charges). The relevant
part of the decision reads:
“The pre-trial detention was ordered in respect of the
defendants listed under [heading] II of this decision under Article 102 § 1(4)
of the Code of Criminal Procedure, because it is possible to order pre-trial
detention on this ground for the offence at issue and because [the charges]
concern a large quantity of heroin, which the defendants supplied to a larger
number of people and for a longer period of time, therefore probably damaging
the health of a significant number of people, which all contributes to the
particularly grave circumstances of the offence...
The pre-trial detention was ordered
under Article 102 § 1(3) of the Code of Criminal Procedure in respect of
defendants ... Milan Trifković, ... and ... since they have already been
convicted of similar or other offences they now have no permanent income, so
there is justified fear that they will reoffend.”
The applicant lodged an appeal on 6 December
2006, arguing that the charges against him suggested that he had had only a
minor role in the alleged organisation of supply of heroin. As to the risk of
reoffending, he argued that it was not true that he had no permanent income, as
he was employed by company K.-V. In this connection he indicated his employment
contract and submitted further documents as evidence of his income. The
applicant also asked that the detention be replaced by another preventive
measure that the court deemed appropriate.
The appeal was dismissed on 8 December 2006 by a
three-judge panel of the Split County Court. The relevant part of the decision
reads:
“In view of the offence [the accused] are charged with, this
panel finds that there are particularly grave circumstances justifying their
detention under Article 102 § 1(4) of the Code of Criminal Procedure given that
..., Milan Trifković and ... have already been convicted of similar or
other offences, so that for them the detention under Article 102 § 1(3) of the
Code of Criminal Procedure is also justified.”
The investigating judge extended the applicant’s
detention on 20 December 2006, under Article 102 § 1(3) and (4) of the
Code of Criminal Procedure (risk of reoffending and gravity of charges),
reiterating the arguments in his decision of 24 November 2006.
The applicant appealed on 29 December 2006, pointing
out that according to the charges held against him he had had only a minor role
in the alleged organisation of heroin supplying. He also argued that nothing
suggested that he might reoffend, since he was not a drug addict and his
previous conviction for the possession of a small quantity of drugs could not
in any respect be associated with the charges against him in the present case.
He again asked that the detention be replaced by another preventive measure
that the court deemed appropriate.
That appeal was dismissed on 17 January 2007 by
a three-judge panel of the Split County Court. They reiterated their previous
arguments. As to the risk of reoffending they added:
“...and since [the defendants] are users of illegal drugs and
do not have a permanent income, the investigating judge properly extended their
detention under Article 102 § 1(3) of the Code of Criminal Procedure.”
On 19 January 2007 the investigating judge
extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code
of Criminal Procedure, reiterating the arguments in his previous decisions.
The applicant appealed on 23 January 2007, again
stating that he had had only a minor role in the organisation of the supply of
heroin and argued that the finding that he had no permanent income was not true,
because he was employed. The applicant again asked for his detention to be
replaced with another preventive measure.
The appeal was dismissed on 8 February 2007 by a
three-judge panel of the Split County Court which reiterated its previous
arguments.
On 20 February and 20 March 2007 the
investigating judge extended the applicant’s detention under Article 102 § 1(3)
and (4) of the Code of Criminal Procedure, using the same formulation as
before.
The applicant lodged an appeal on 21 March 2007 where
he argued, relying on the Court’s case-law, that the investigating judge had
failed to provide sufficient reasons for extending his detention and that he
had failed to consider the possibility of applying another preventive measure.
The appeal was dismissed on 4 April 2007 by a
three-judge panel of the Split County Court which reiterated that the gravity
of the charges and the fact that the applicant had already been convicted of
similar offences and that he was a drug user, justified his detention under Article
102 § 1(3) and (4) of the Code of Criminal Procedure.
On 20 April 2007 the investigating judge
extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code
of Criminal Procedure, using the same formulation as in his previous decisions.
The applicant appealed on 23 April 2007, arguing,
inter alia, that the investigating judge had insisted that he had no
permanent income, which was not true, because he was employed, and in that
respect he had provided sufficient evidence. He also asked that the detention
be replaced with another preventive measure. The appeal was dismissed on 4 May
2007 by a three-judge panel of the Split County Court, which endorsed the
reasoning of the investigating judge.
On 18 May 2007 the investigating judge extended
the applicant’s detention under Article 102 § 1(3) and (4) of the Code of
Criminal Procedure, using the same formulation as in his previous decisions.
The applicant appealed on 21 May 2007, reiterating
his arguments that there were no grounds for his continued detention. He again
asked for the detention to be replaced with another preventive measure. On 30
May 2007 a three-judge panel of the Split County Court dismissed the applicant’s
appeal, reiterating its previous arguments.
The investigating judge extended the applicant’s
detention on 20 June 2007 again under Article 102 § 1(3) and (4) of the
Code of Criminal Procedure, using identical phrases as in his previous
decisions.
The applicant lodged an appeal on 21 June 2007
against the above decision, reiterating his previous arguments and asking for his
detention to be replaced with another preventive measure: on 27 June 2007 a
three-judge panel of the Split County Court dismissed his appeal, on the same
grounds as before.
On 19 July 2007 the investigating judge extended
the applicant’s detention under Article 102 § 1(3) and (4) of the Code of
Criminal Procedure, using the same formulation as in his previous decisions.
The applicant lodged an appeal on 25 July 2007,
reiterating his previous arguments and asking for his detention to be replaced
with another preventive measure, but on 31 July 2007 a three-judge panel of the
Split County Court dismissed the applicant’s appeal, using identical phrases to
those in its previous decision.
On 20 August 2007 the investigating judge extended
the applicant’s detention under Article 102 § 1(3) and (4) of the Code of
Criminal Procedure, again using identical reasoning.
The applicant lodged an appeal on 21 August 2007
and on 28 August 2007 a three-judge panel of the Split County Court dismissed
it, using the same formulation as in its previous decisions.
The investigating judge extended the applicant’s
detention on 20 September 2007 under Article 102 § 1(3) and (4) of the
Code of Criminal Procedure, using identical phrases as in his previous
decisions.
The applicant lodged an appeal on 25 September
2007. He again pointed out that the same effect of extending his detention could
be achieved by ordering another preventive measure. On 3 October 2007 a
three-judge panel of the Split County Court dismissed the appeal, using the
same formulation as in its previous decisions.
On 19 October 2007 the investigating judge
extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code
of Criminal Procedure, reiterating his previous reasoning.
The applicant lodged an appeal on 23 October
2007, reiterating his previous arguments, but it was dismissed by a three-judge
panel of the Split County Court on 26 October 2007.
On 16 November 2007, after the applicant had
been indicted in the Split 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 (risk of reoffending and gravity of charges). The
relevant part of the decision reads:
“The criminal record ... shows that the accused ... Milan
Trifković ... [has] already been convicted of a criminal offence of the
same type as the one concerned in these proceedings ...
Furthermore, the report drawn up by a neuropsychiatrist ...
shows that the defendant... Milan Trifković ... [is a] drug user ...
Therefore since the accused ... Milan Trifković ... [are]
drug users ... there is a risk that they might reoffend.
Also, since the accused are charged [with having] organised a
group with the aim of trafficking in illegal drugs on the island of
Korčula, and were engaged [in that activity for] a long period of time,
together with J.C., who was the leader of the group and of all [the criminal]
activities, and particularly having in mind the gravity [ of the offences at
issue] and the danger to society, as well the prevalence of such offences, this
panel considers that in the case at issue there are particularly grave
circumstances which significantly differ from the usual manner in which the
offence at issue is committed.”
Against that decision the applicant lodged an
appeal with the Supreme Court on 28 November 2007. As to his previous
conviction, he argued that he had been convicted only of possession of illegal
drugs for his personal use, which could not in any respect be associated with
the charges against him in the present case. Moreover, the psychiatric report
showed that he had no addiction to drugs and that there was no risk that he would
reoffend. He also pointed out that he was permanently employed and that he had
a regular source of income. As to the gravity of the charges, the applicant
argued that the charges against him suggested that he had had only a minor role
in the alleged organisation of the supply of heroin. The applicant also asked for
the detention to be replaced with any preventive measure that the court deemed
appropriate.
On 7 December 2007 the Supreme Court dismissed
the applicant’s appeal, endorsing the reasoning of the Split County Court. It
made no reference to the applicant’s request that his detention be replaced
with another preventive measure.
The applicant’s detention was further extended on
7 February 2008 by a three-judge panel of the Split County Court under Article
102 § 1(3) and (4) of the Code of Criminal Procedure, reiterating its previous
arguments.
On 12 February 2008 the applicant lodged an
appeal against the above decision, reiterating his previous arguments and
asking for his detention to be replaced with another preventive measure. The
Supreme Court dismissed the applicant’s appeal on 29 February 2008 in the
following terms:
“According to the indictment, the activities with which the
accused are charged took place between the beginning of 2003 and mid-2006, and the
accused J.C., in the broader area of Dubrovnik and Korčula, organised a
criminal group in which he recruited ... Milan Trifković ... all in order
to supply heroin.
Since all the accused were engaged in a criminal activity for a
longer period of time, between the beginning of 2003 and mid-2006, in the
broader area of Dubrovnik and Korčula, and since they showed a high degree
of criminal resolve by organising continuous [criminal] activity, which shows a
particular degree of persistence and criminal resolve, and taking this together
with the fact that the accused ... Milan Trifković ... were on more
occasions convicted of, [inter alia], the same or similar offences, and ...
since the accused ... Milan Trifković are users of illegal drugs, there is
a fear that they might reoffend...
Also, since the subject of the alleged [criminal] activity was
distribution of the illegal drug heroin in large quantities, and since it could
have been used for a large number of small packages for individual use, which,
if sold on the illegal drug market, could endanger a large number of mostly
young people, suggests... that there are particularly grave circumstances surrounding
the offence ...
The preventive measures under Article 90 of the CCP in respect
of the accused Milan Trifković would not have the same effect as detention
on the basis of Article 102 § 1(3) and (4) of the Code of Criminal Procedure.”
A three-judge panel of the Split County Court on
29 April 2008 extended the applicant’s detention under Article 102 § 1(3) and
(4) of the Code of Criminal Procedure, on the same grounds as before.
The applicant lodged an appeal on 6 May 2008,
reiterating his previous arguments, but on 30 May 2008 the Supreme Court dismissed
it.
On 24 July 2008 a three-judge panel of the Split
County Court extended the applicant’s detention under Article 102 § 1(3) and
(4) of the Code of Criminal Procedure, reiterating the same reasons as in its
previous decisions.
The applicant lodged an appeal against the above
decision on 29 July 2008. He argued that the evidence from the case file showed
that he had not been a member of the alleged criminal organisation. As to the
risk of reoffending, he pointed out that his previous conviction had concerned small
amounts of drugs, for his personal use only, and that he was not a drug addict.
He also argued that he was employed and had a regular source of income. On 10
September 2008 the Supreme Court dismissed the appeal, reiterating the same
arguments as in its previous decisions.
On 10 November 2008 a three-judge panel of the
Split County Court extended the applicant’s detention, again under Article 102 paragraph
1(3) and (4) of the Code of Criminal Procedure. The relevant part of the
decision reads:
“The criminal record ... shows that the defendant ... Milan
Trifković ... [has] already been convicted of a criminal offence of the
same type as the one concerned in these proceedings ...
Furthermore, the report drawn up by a neuropsychiatrist ...
shows that the defendant... Milan Trifković ... [is a] drug user ...
Also, the defendants are charged with organising a group with
the aim of trafficking in illegal drugs on the island of Korčula, that
they had been engaging [in that activity for] a long period of time, together
with J.C., who was the leader of the group and of all [the criminal]
activities.
The above-mentioned circumstances, together with the fact that
the defendants were allegedly members of a group which was continually [and for
a long] period of time engaged in trafficking in illegal drugs, namely heroin,
one of the hardest drugs, and that they thus put at risk the health of a large
number of people, justify the extension of detention in respect of the
defendants ... [including] Milan Trifković ... under Article 102 paragraph
1(3) and (4) of the Code of Criminal Procedure. These circumstances justify the
fear of reoffending and also amount to particularly grave circumstances [in
which] the offence [is alleged to have taken place].”
The applicant lodged an appeal on 13 November
2008, in which he argued that the evidence thus far obtained had not implicated
him in the offences in question, save for a statement given by a witness, Ž.T.
However, he claimed that her statement was unreliable because it was both
contradictory and hearsay evidence, and also contradicted the evidence given by
other witnesses. The transcripts of telephone conversations of his which had
been taped did not show that he had discussed details of drug trafficking with
anyone. Furthermore, no material evidence which could connect him with
trafficking in illegal drugs had been found on him. As regards the risk of
reoffending, the applicant argued that, even if he had been a drug addict
before being detained, during the period of his detention he would surely stop
being one because he would not be able to take any drugs during his detention. As
regards the argument that he had already been convicted of the same type of
offence, he argued that his previous conviction concerned the possession of a
small amount of drugs for his personal use, and that he was permanently
employed. Against that background, he argued that there was no need for him to
remain in detention and asked that his detention be replaced by another
preventive measure.
A three-judge panel of the Split County Court on
13 January 2009 again extended the applicant’s detention, under Article 102
paragraph 1(3) and (4) of the Code of Criminal Procedure, and with the same
reasoning as it had previously given. On 19 January 2009 the applicant lodged
an appeal against this decision, reiterating his previous arguments.
On 13 February 2009 the Supreme Court dismissed
the applicant’s appeal against the decision of 10 November 2008. The relevant
part of the decision reads:
“The circumstances which show that there is a risk of
reoffending ... are that the defendants are charged [with having been] ...
members of a criminal organisation organised by the defendant J.C. in the
period between the beginning of 2003 and November 2006, [operating in] the
broader area of Dubrovnik and Korčula, and in which sixteen individuals
were involved and mutually connected, among whom [were] the defendants Milan
Trifković and ..., all [having the] aim of purchasing, storing,
transferring and selling the drug heroin in order to obtain significant
material gain. They delivered heroin previously bought by the defendant J.C. in
Serbia, Bosnia and Herzegovina, and Montenegro for the needs of drug addicts
on the island of Korčula, in daily amounts of at least 32 grams.
Furthermore, the defendants Milan Trifković and ... have already
been convicted several times of criminal offences of the same type - abuse of
illegal drugs ... This shows that their previous life was not in conformity
with the law and that their previous conviction has not taught them about the
peril of committing criminal offences. Also, the documents in the file show
that the defendants Milan Trifković and ... are users of illegal drugs ...
Therefore, the long period of engaging in such criminal
activity, which shows their determination, high level of organisation and
criminal resolve ..., together with the fact that they are users of illegal
drugs, ... and previous conviction, amount in the view of the Supreme Court ...
to specific circumstances which justify the fear that the defendants Milan
Trifković and..., if at large, would continue to commit new criminal
offences of the same type ...
The decision to extend the defendants’ detention on the basis
of Article 102 paragraph 1(4) of the Code of Criminal Procedure is justified
and lawful in view of the fact that the... charges concern a significant amount
of the illegal drug heroin. The fact that there was such a large amount of this
drug, which could be divided into a large number of individual doses and thus
put at risk the health of a large number of people, especially youngsters,
[together with] the international elements of the offence, surpasses by far the
usual gravity of such offences.
The defendants’ arguments pointing to the lack of evidence that
they had committed the criminal offences at issue ... have no bearing on the
decision [on their detention]. When deciding upon an appeal against a decision
on detention, the appeal court has no competence to assess the factual
background of the case or the defendants’ criminal responsibility. For
detention to be ordered it suffices that the indictment and the documents in
the case file indicate that there is reasonable suspicion. Neither has the
principle of proportionality been infringed, because the defendant Milan
Trifković has so far spent less than two years and three months in
pre-trial detention ... When applying that principle, the relevant factors to
be taken into account are not only the time already spent in detention but also
the gravity of the criminal charges brought against the defendants and the
severity of the sentence faced, as well as the need to order and extend
detention.
The statement of the defendant Milan Trifković that he is
not a drug addict ... is also irrelevant, because drug addiction and drug use
are not the decisive motives for committing such criminal offences, and they
cannot put into question the importance of all the other above-mentioned points
which show at the risk of reoffending ... “
On the same day, the Supreme Court dismissed the
applicant’s appeal against the Split County Court’s decision extending his
detention of 13 January 2009, using the same arguments.
On 5 March 2009 the applicant lodged two
constitutional complaints with the Constitutional Court (Ustavni sud
Republike Hrvatske) against the decision of the Supreme Court of 13
February 2009 dismissing his appeal against the Split County Court’s decision
of 10 November 2008 and the decision of the Supreme Court of 13 February 2009
dismissing his appeal against the Split County Court’s decision of 13 January
2009.
The applicant’s detention was again extended on
9 April 2009 by a three-judge panel of the Split County Court under Article 102
paragraph 1(3) and (4) of the Code of Criminal Procedure, using the same
reasons as in its previous decisions.
The applicant lodged an appeal against the above
decision on 16 April 2009. He argued that for several years his detention
had been repeatedly extended, always using the same reasoning as to the gravity
of the charges, without any assessment of his individual position in the
alleged criminal organisation. He also pointed out that his previous conviction
was minor and that he was employed, with a regular source of income. He further
argued that the trial had been adjourned indefinitely and that there was a real
risk that his detention was becoming a penalty. Finally, he pointed out,
relying on the Court’s case-law, that the reasons justifying his detention were
no longer relevant and sufficient, and that the domestic courts had never
examined the possibility of applying another preventive measure.
On 29 April 2009 the Constitutional Court
declared the applicant’s constitutional complaint against the decision of the
Supreme Court dismissing his appeal against the Split County Court’s decision
of 10 November 2008 inadmissible on the ground that the impugned decisions
were no longer in effect, because in the meantime the Split County Court had
adopted a fresh decision on his detention on 13 January 2009.
On 6 May 2009 the Supreme Court dismissed the
applicant’s appeal against the decision extending his detention of 9 April
2009, reiterating its previous arguments. It also found that the purpose of the
detention could not be achieved with any other preventive measure.
On 27 May 2009 the Constitutional Court declared
the applicant’s constitutional complaint against the decision of the Supreme
Court dismissing his appeal against the Split County Court’s decision of 13 January
2009 inadmissible on the ground that that the impugned decisions were no longer
in effect, because in the meantime the Split County Court had adopted a fresh
decision on his detention, on 9 April 2009.
A three-judge panel of the Split County Court on
6 July 2009 again extended the applicant’s detention under Article 102
paragraph 1(3) and (4) of the Code of Criminal Procedure, using the same
formulation as in its previous decisions.
The applicant lodged an appeal against the above
decision on 9 July 2009, pointing out that he had no addiction to drugs and
that he was employed and therefore had a regular source of income. He also
asked that the detention be replaced by another preventive measure. On 4 August
2009 the Supreme Court dismissed the appeal, reiterating its previous
arguments. It added that the fact that the applicant had been detained and
therefore had not had any opportunity to obtain drugs was not of a decisive
influence on the conclusion that he might reoffend. As to his arguments that he
was employed and had a regular source of income, the Supreme Court held that it
also had no decisive effect, since the proceeds of the offence at issue were
significantly higher than his personal income.
On 1 October 2009 a three-judge panel of the
Split County Court again extended the applicant’s detention under Article 102
paragraph 1(3) and (4) of the Code of Criminal Procedure, using the same
formulation as in its previous decision.
The applicant lodged an appeal on 5 October 2009
in which he argued that the principle of proportionality had been infringed
with his continuous detention but on 14 October 2009 the Supreme Court dismissed
it, reiterating its previous arguments. As to the proportionality of the
detention, the Supreme Court held that this principle had not been infringed,
since the charges concerned the most serious offences, for which there was also
a possibility of extending the detention for an additional six months under section
28 paragraph 3 of the Act on the Office for the Suppression of Corruption and
Organised Crime (hereinafter “the AOSCOC”).
On 20 November 2009 a three-judge panel of the Split County Court extended the applicant’s detention for a further six months. The relevant
part of the decision reads:
“ ... since the maximum limits for detention under Article 109
of the Code of Criminal Procedure were about to expire, [this panel] has examined
whether there are grounds for extending the accused’s detention or for his
release.
In the situation at issue, in view of the sentence that the
offence at issue carries, the maximum statutory limit under Article 109 § 1(5)
of the Code of Criminal Procedure is three years, and therefore this period
would expire in respect of ... the accused Milan Trifković ... on 22
November 2009.
However, under section 28 § 2 of the [AOSCOC] the maximum
time-limit of detention during an investigation, if the investigation has been
extended, can be twelve months, while paragraph 3 of the same section provides
that the maximum period of detention under Article 109 of the Code of Criminal Procedure
shall be extended for a further six months if the detention during the investigation
has been extended under paragraph 2 of [Section 28 of the AOSCOC].
Since in this particular case the investigation was extended so
that it lasted more than the maximum six months, the conditions for extending
the maximum period of the pre-trial detention for a further six months under section
28 paragraph 3 of the [AOSCOC] have been met.
Therefore, since all the circumstances on which the detention
was extended under Article 102 paragraph 1 (1), (3) and (4) of the CCP have not
changed, the detention in respect of the accused ... Milan Trifković and ...
had to be extended for a further six months ...“
The applicant lodged an appeal with the Supreme
Court against the above decision on 24 November 2009. He argued that the evidence
adduced during the trial did not support the suspicion that he was an important
member of the criminal group and that no drugs, objects usually used to sell
drugs, or any proceeds of crime had ever been found on or seized from him. The
applicant further argued that the Split County Court had been using the same
stereotyped formula when extending his detention for three years, and that
there were no grounds for extending his detention. He also argued that the
proceedings had been unreasonably long and that during that period he had been
detained in inhuman and degrading conditions. Finally, he pointed out, relying
on the Court’s case-law, that the possibility of replacing his detention with
another preventive measure had never been examined. On 27 November 2009 he
also submitted to the Supreme Court a statement from company K.-V. confirming that
he was permanently employed by that company; he asked again to be released.
The Supreme Court dismissed the applicant’s
appeal on 11 December 2009. It limited its assessment only to the question
of whether further extension would exceed the maximum statutory limit. As to
the other arguments put forward by the applicant, the Supreme Court noted:
“As to the arguments put forward by all three accused in which
they complain about the conditions of their detention and challenge the grounds
and purpose of their detention on account of its length, it is to be noted that
it does not put in any doubt the impugned decision. Namely, the [Split County
Court’s] decision did not address the grounds for their detention, since it
only concerned examination of statutory conditions for extending the maximum
detention under Article 109 of the Code of Criminal Procedure, in respect of
which the arguments in the appeal are irrelevant.”
On an unspecified date in 2010 the applicant
lodged a constitutional complaint against the above decision of the Supreme
Court, reiterating the same arguments from his appeal.
A three-judge panel of the Split County Court on
12 February 2010 extended the applicant’s detention under Article 102 paragraph
1(3) and (4) of the Code of Criminal Procedure, reiterating arguments from its
previous decisions as to the risk of reoffending and the gravity of the charges.
The applicant lodged an appeal against the above
decision on 18 February 2010, reiterating his previous arguments and
asking that the detention be replaced by another preventive measure, if one was
necessary.
On 25 February 2010 the Constitutional Court
dismissed the applicant’s constitutional complaint against the decision of the
Supreme Court of 11 December 2009. The relevant part of the Constitutional
Court’s decision reads:
“It appears from the constitutional complaint, which is
identical to the appeal lodged with the Supreme Court, that [the applicant] is
complaining about the grounds for his detention, which was not the subject of
the impugned decisions. The statutory grounds for his detention are under
Article 107 paragraph 2 of the CCP, within the competence of the panel from
Article 18 paragraph 3 and Article 20 paragraph 2 of [the CCP], which is
obliged to examine the grounds for detention every two months ...
However, in the case at issue, the impugned decisions do not
examine the grounds for [the applicant’s] detention, but only whether the
conditions for extending the detention under Article 109 of the Code of Criminal
Procedure have been met. ... “
On 17 March 2010 the Supreme Court dismissed the
applicant’s appeal against the Split County Court’s decision of 12 February
2010 on the ground that the same reasons warranting the applicant’s detention
under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure
still existed. It also found that the principle of proportionality had not been
infringed and that there were no grounds to replace the detention with another
preventive measure.
On an unspecified date in 2010 the applicant
lodged a constitutional complaint with the Constitutional Court against the
above decision of the Supreme Court, again complaining about the extension of
his detention and about the conditions in detention.
The applicant’s detention was again extended by a
three-judge panel of the Split County Court on 17 May 2010 on the basis of
Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure,
reiterating its previous arguments.
On 22 May 2010 the maximum statutory time-limit
of the applicant’s extended detention expired and the applicant was released.
II. RELEVANT DOMESTIC LAW
The relevant part of the Criminal Code (Kazneni
zakon, Official Gazette no. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004,
84/2005) provides:
Abuse of Narcotic Drugs
Article 173
“ ...(2) Whoever, without authorisation, manufactures,
processes, sells or offers for sale or buys for the purpose of reselling, keeps,
distributes or brokers the sale and purchase of, or, in some other way and
without authorisation, puts into circulation, substances or preparations which
are by regulation proclaimed to be narcotic drugs, shall be punished by
imprisonment for one to twelve years.
(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 if he has set up a network for selling drugs, he shall be
punished by imprisonment for not less than three years or by long-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 contact with 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 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
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, and so on);
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. 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..”.
Article 204
“(1) If the investigation cannot be completed within six
months, the investigating judge shall inform the president of the court why the
investigation is not finished.
(2) The president of the court shall, if necessary, take
appropriate measures to enable the investigation to be completed.”
The relevant provision of the Act on the Office
for the Suppression of Corruption and Organised Crime (hereinafter the “AOSCOC”
- Zakon o Uredu za suzbijanje korupcije i organiziranog kriminaliteta
(ZUSKOK), Official Gazette nos. 88/2001, 12/2002, 33/2005, 48/2005, 76/2007)
provides as follows:
Section 28
“(1) Custody under section 98 of the Criminal Procedure Act
shall be extended to 48 hours.
(2) The total duration of the pre-trial detention in the above
proceedings, if the investigation is lengthy (Article 204, paragraph 1 of the
Code of Criminal Procedure) may be twelve months.
(3) If the pre-trial detention during the investigation has
been extended under paragraph 2 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 LAW
I. ALLEGED VIOLATION OF
ARTICLE 5 § 1 OF THE CONVENTION
The applicant complained that his pre-trial
detention after 20 November 2009, when the maximum statutory period for
his detention expired, had been unlawful. He relied on Article 5 § 1 of the
Convention, which, in so far as relevant, 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. The parties’ arguments
The applicant submitted that his detention after
20 November 2009, when the maximum statutory limit for his detention provided
in the Code of Criminal Procedure expired, had not been lawful within the
meaning of Article 5 § 1 of the Convention. He argued that he had been legally
represented and aware of the relevant domestic law which provided for the
possibility that the maximum period of the detention be extended but that the
domestic courts had never provided sufficient arguments why this law should be
applied.
The Government argued that the applicant’s
detention after 20 November 2009 had been in compliance with the relevant
domestic law, namely section 28 of the AOSCOC. When the applicant’s detention
had been extended the domestic courts provided relevant and sufficient reasons
why this provision should be applied and also examined the grounds on which the
applicant had been detained. Moreover, the applicant had had an opportunity to
appeal before the Supreme Court which had duly examined the lawfulness of his
continued detention and explained all the grounds on which his detention had
been based.
B. The Court’s assessment
The Court reiterates that Article 5 of the
Convention guarantees the fundamental right to liberty and security. That right
is of primary importance in a “democratic society” within the meaning of the
Convention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12, and Winterwerp v. the Netherlands, 24 October
1979, § 37, Series A no. 33). Its key purpose is to prevent arbitrary
or unjustified deprivations of liberty (see McKay
v. the United Kingdom [GC], no. 543/03, § 30, ECHR
2006-X, and Ladent v. Poland, no. 11036/03, § 45, 18 March 2008).
Everyone is entitled to the protection of that
right, that is to say the right not to be deprived or to 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 of Judgments and
Decisions 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 domestic
law has been complied with (see, among many other authorities, Benham v. the United Kingdom, 10
June 1996, § 41, Reports 1996-III,
and Assanidze, 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
v. the United Kingdom [GC], no. 46295/99, § 63, ECHR 2002-IV,
and Kafkaris
v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008). “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,
§ 50, cited above; 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. 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).
The Court notes that Article 109 of the Code of
Criminal Procedure prescribes the maximum duration of detention allowed before
a conviction becomes final and enforceable. Paragraph 1 in particular
prescribes the period of maximum detention before the adoption of a
first-instance judgment, which in the case at issue is three years.
Under Article 204 paragraph 1 of the Code of
Criminal Procedure the investigation has to be completed within six months.
However, it is possible to extend that period in respect of crimes covered by the
AOSCOC for a further six months.
In such cases, where the investigation is
extended, section 28 of the AOSCOC allows the otherwise maximum statutory limit
on pre-trial detention, under Article 109 of the Code of Criminal Procedure, to
be extended for a further six months. In the case at issue this means that the
maximum period of detention allowed before a conviction becomes final and enforceable
was three years and six months.
The Court considers that the wording of section
28 of the AOSCOC was sufficiently clear and precise to allow the applicant to
foresee situations in which his pre-trial detention could have been extended
beyond the general statutory maximum limit for detention under Article 109,
paragraph 1, of the Code of Criminal Procedure.
The Court notes that the applicant was arrested
on 22 November 2006 and that the general maximum period of his detention, under
Article 109 paragraph 1 of the Code of Criminal Procedure, would
accordingly have expired on 22 November 2009.
However, in the applicant’s case, which
concerned crimes covered by the AOSCOC, the investigation was opened on 24
November 2006 and was therefore supposed to be completed by 24 May 2007. On 15
May 2007, and then on 15 June, 8 August and 5 October 2007 the investigating
judge established that all the necessary evidence had not been obtained and
asked the president of the Split County Court to extend the investigation which
was granted and the investigation was extended on four occasions. The
indictment was sent to the trial court on 15 November 2007. The Court notes
that with the extension of the investigation the applicant’s pre-trial
detention was also extended and the applicant remained in detention throughout
the investigation.
Therefore, when the investigation was extended
under the AOSCOC, the general maximum period of the applicant’s detention,
under Article 109 paragraph 1 of the Code of Criminal Procedure, was also
extended for further six months under section 28 of the AOSCOC on 20 November
2009.
The Court considers that when extending the
applicant’s detention over the general maximum period, the Split County Court
sufficiently explained the grounds for application of section 28 of the AOSCOC
(see paragraph 72) and that such extension of the maximum period of the
applicant’s pre-trial detention for a further six months was in any respect in
conformity with the relevant domestic law.
It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The applicant complained of the length of his
pre-trial detention and in particular that the reasons put forward by the
national courts when extending his pre-trial detention were not relevant and
sufficient. 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. The parties’ arguments
The Government submitted that the applicant had
failed to lodge appeals against the decisions extending his detention on 20
February 2007 and 17 May 2010. As to the other domestic courts’ decisions
extending his detention, the Government argued that the applicant had failed to
address the same 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 had made it clear in its case-law that it was not a
court of third instance.
The applicant contested that view, arguing that
he had properly exhausted all available domestic remedies.
2. The Court’s assessment
106. The Court reiterates that 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 it (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 of Article 5
§ 3 of the Convention, the Court has already held that if a person
alleging a violation of this provision on account of the length of his
detention in circumstances such as those prevailing in the present case, he
complains of a continuing situation, 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 respect 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 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).
108. The Court notes that in the present
case the applicant’s pre-trial detention was ordered under
Article 102 § 1(3) and (4) of the Code of Criminal Procedure (risk of
reoffending and gravity of charges) and on the same grounds it was extended
eleven times during the investigation and twelve times during the trial stage
of the proceedings.
109. The Court further notes that during
the period of his detention the applicant lodged twenty-three appeals before
the domestic courts and in addition he lodged four constitutional complaints
before the Constitutional Court complaining, inter alia, that his
detention was unlawful, and pointing out in particular that there were no
relevant and sufficient grounds for his continued detention and that it had
lasted an excessively long time.
110. Against the above background, the
Court considers that the applicant gave the domestic authorities an
adequate opportunity to assess whether his detention had been lawful, based on
relevant and sufficient grounds, and whether its length had been excessive. 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.
The Court notes that this part of the
application is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ arguments
The applicant submitted that his detention had
been extended throughout the proceedings without relevant and sufficient
grounds. He argued that his detention on the ground of gravity of charges had
been based only on an abstract examination of the charges against him. As to
the risk of reoffending, he pointed out that the domestic courts had failed to
give any consideration to the fact that he was in permanent employment and that
he had not been a drug addict but had only used drugs in a shorter period of
time. In his view, they had overestimated the fact that he had been previously
convicted since his conviction had concerned only possession of drugs for
personal use which had not been comparable with the charges in the present
case. Finally, he argued that the domestic authorities had never examined the
possibility to replace his detention with the preventive measures, but had only
noted that there had been no ground for that.
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 the charges against the applicant represented particularly
grave circumstances which had justified the applicant’s detention throughout
the proceedings. They also pointed out that there was a reasonable risk of
reoffending, since the applicant was unemployed and had previously been sentenced
for an offence of drug abuse. Finally, the Government argued that the grounds
for the applicant’s detention had never been taken in abstracto but
always with the clear, precise, adequate and valid reasoning of the domestic
courts.
2. The Court’s assessment
(a) General principles
The Court reiterates that under its constant
case-law, the issue of whether a period of detention is reasonable cannot be
assessed in abstracto. Whether it
is reasonable for an accused to remain in detention must be assessed in each
case. Continued detention can be justified 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, Series A no. 254-A, and Kudła v. Poland [GC], no. 30210/96,
§ 110, ECHR 2000-XI).
The presumption is in favour of release. As the
Court has consistently held, the second limb of Article 5 § 3 does not give
judicial authorities a choice between either bringing an accused to trial within
a reasonable time or granting him provisional release pending trial. Until his
conviction, the accused must be presumed innocent, and the purpose of the
provision under consideration 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, with further references).
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 evidence for or against the existence of a genuine requirement
of public interest justifying, with due regard to the principle of the
presumption of innocence, a departure from the rule of respect for individual
liberty, and must set them out in their decisions dismissing the applications
for release. It is essentially on the basis of the reasons given in these
decisions and the facts cited by the applicant in his appeals that the Court is
called upon to decide whether or not there has been a violation of Article 5 §
3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 152, ECHR
2000-IV).
The arguments for and against release must not
be “general and abstract” (see Smirnova
v. Russia, nos. 46133/99
and 48183/99, § 63, ECHR 2003-IX). Where the law provides for a
presumption in respect of factors relevant to the grounds for continued
detention, the existence of the specific facts outweighing the rule of respect
for individual liberty must be convincingly demonstrated (see Ilijkov, cited above, § 84 in fine, 26 July 2001).
The persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua
non for the lawfulness of the continued detention, but after a
certain lapse of time it no longer suffices. In such cases, the Court must
establish whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds were “relevant” and
“sufficient”, the Court must also ascertain whether the competent national
authorities displayed “special diligence” in the conduct of the proceedings
(see Contrada v. Italy, 24 August 1998, § 54, Reports 1998-V; I.A. v. France, 23
September 1998, § 102, Reports
1998-VII; Toth v. Austria, 12 December 1991, § 67, Series A no. 224;
and B. v. Austria, 28 March 1990, § 42, Series A no. 175).
(b) Application of these principles to the present
case
As to the period be taken into account in the
present case, the Court reiterates that according to its 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 is taken into custody and ends on
the day when he is released (see, for example, Fešar v. the Czech Republic, no. 76576/01, § 44, 13 November 2008).
It follows that the period of the applicant’s
detention to be taken into consideration began on 22 November 2006, the date of
the arrest, and ended on 22 May 2010, when the applicant was released, which in
total amounts to three years and six months.
The Court notes at the outset that the
inordinate length of the applicant’s pre-trial detention - more than three years
- is a matter of great concern. The national authorities must put forward very
weighty reasons for keeping the applicant in detention for such a long time
(see Tsarenko v. Russia, no. 5235/09, § 68, 3 March 2011).
The Court notes that in the present case the
applicant had been detained on two different grounds: (1) risk of reoffending
and (2) gravity of charges.
As to the risk of reoffending, the domestic
authorities relied on the fact that the applicant had previously been convicted
of drug abuse, that he was a drug user and that he was charged with having
participated in a criminal group organised to supply heroin. In addition,
during the investigation the domestic courts relied on the fact that the
applicant did not have a permanent source of income.
124. As regards the latter point, the
Court notes, however, that as soon
as he had been arrested and detained the applicant submitted to the domestic
authorities a contract of permanent employment, and throughout the
investigation argued that he was employed and had a permanent source of income.
Moreover, at the trial stage of the proceedings the applicant submitted a
statement from his employer confirming that he still had permanent employment.
. Therefore, the Court must conclude
that the domestic authorities failed, throughout almost one year of the
applicant’s detention during the investigating stage of the proceedings, to
assess the relevant evidence concerning the applicant’s employment. As a result
they continued to extend his detention, arbitrarily relying on the assertion
that he had no permanent source of income, using the same stereotyped phrases
and in some cases even identical wording. In this respect the Court reiterates
that it has found a violation of Article 5 § 3 of the Convention in many
other cases in which the domestic
authorities were using stereotyped formulae without addressing specific
facts of the case (see Tsarenko, cited above, § 70, and cases cited therein).
. As to the applicant’s previous
conviction for drug abuse as a reason for justifying the detention on the
ground of the fear of reoffending, the Court considers that the domestic
authorities were obliged to assess 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
Romanova v. Russia, no. 23215/02, § 130, 11 October 2011).
In this respect the Court notes that the
domestic authorities found that the applicant had been convicted of drug abuse,
but never went beyond these findings. They never assessed the facts of the
previous charges and never compared the nature and the degree of seriousness of
the previous conviction with the charges in the present case. Nor did they
respond to the applicant’s arguments that the previous conviction had concerned
only possession of small quantities of drugs for personal use which was not
comparable either in nature or in degree of seriousness with the charges of
participation in organised supply of heroin (see, mutatis mutandis, Constantin
and Stoian v. Romania, nos. 23782/06 and 46629/06, § 55, 29 September 2009).
The domestic courts also relied on the fact
that the applicant was a drug user when justifying
the detention on the ground of the risk of reoffending. The Court, however,
notes that the psychiatric report commissioned during the investigation
indicated that the applicant had used drugs for only a short period of time and
that he had not developed an addiction. In such circumstances the Court does
not consider the previous period of the applicant’s use of drugs
sufficient to justify the risk that the applicant would reoffend, particularly
having in mind that he had been detained for a longer period of time (see Shenoyev
v. Russia, no. 2563/06, § 51, 10
June 2010).
. As regards the domestic courts’ reliance on the gravity of the charges
when extending the applicant’s
detention, the Court reiterates 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 also notes that
the total period of the applicant’s pre-trial detention of three years and six
months corresponds to the prison term imposed on him by the first-instance
judgment, which suggests that the domestic authorities failed to assess the
proportionality of the gravity of the specific charges against the applicant
and the period of his pre-trial detention.
. Against the above background the
Court concludes, even taking into account the particular difficulty in
dealing with a case concerning an organised criminal group, that the grounds
given by the domestic authorities were not “sufficient” or “relevant” to
justify the applicant’s being kept in detention for three and a half years (see
Celejewski v. Poland, no. 17584/04, § 40, 4 May 2006).
There has accordingly been a violation of
Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The applicant complained that the procedure by
which he sought to challenge the lawfulness of his detention was not in conformity
with Article 5 of the Convention. The Court considers that these
complaints shall be examined under Article 5 § 4 of the Convention, which reads
as follows:
“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 part of the
application is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ arguments
The applicant complained that the Constitutional Court had refused to examine the merits of his complaints concerning the
grounds and length of his pre-trial detention on the ground that a new decision
extending his detention had been issued in the meantime. He also complained
that the Supreme Court and the Constitutional Court had refused to examine his
complaints concerning the existence of the concrete grounds for extending his
pre-trial detention after 20 November 2009, when the maximum statutory
time-limit for his detention had expired. In his view this practice of the
domestic courts deprived him of an effective remedy in respect of his
complaints about the lawfulness and grounds for his continued detention.
The Government argued that the domestic legal
system had provided an effective procedure for the applicant to contest the
grounds and duration of his detention. They pointed out that the applicant had
been able to lodge his appeals against the decisions extending his detention and
that all his arguments had been duly taken into consideration by the appeal
court. In the Government’s view, the State had complied with its obligation
under Article 5 § 4 of the Convention by setting up the appellate procedure in
which the competent courts had provided detailed reasons upon every appeal of
the applicant. They also argued that, although the applicant had lodged the
constitutional complaints in respect of the decisions extending his detention, there
had been no right under the Convention to lodge further remedies against the
decisions ordering and extending the detention by the competent courts. This had
been moreover so concerning the constitutional complaints, since the procedure
before the Constitutional Court had represented a specific procedure, namely
the procedure for the protection of human rights in the domestic legal system
and not an extraordinary legal remedies procedure, as conceived by the
applicant.
2. The Court’s assessment
(a) General principles
The Court reiterates that the purpose of
Article 5 § 4 is to assure to persons
who are arrested and detained the right to judicial supervision of the
lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp,
cited above, § 76, and Ismoilov and Others v. Russia, no. 2947/06, §
145, 24 April 2008). A remedy must be made available during a person’s
detention to allow that person to obtain speedy judicial review of the
lawfulness of the detention, capable of leading where appropriate to his or her
release. The existence of the remedy required by Article 5 § 4 must be
sufficiently certain, not only in theory but also in practice, failing which it
will lack the accessibility and effectiveness required for the purposes of that
provision (see, mutatis mutandis,
Stoichkov v. Bulgaria,
no. 9808/02, § 66 in fine,
24 March 2005, and Vachev
v. Bulgaria, no. 42987/98, § 71, ECHR 2004-VIII).
The accessibility of a remedy implies, inter alia, that the
circumstances voluntarily created by the authorities must be such as to afford
applicants a realistic possibility of using the remedy (see, mutatis mutandis, Čonka
v. Belgium, no. 51564/99, §§ 46 and 55, ECHR 2002-I).
(b) Application of these principles to the present
case
The Court notes that the applicant’s
constitutional complaint against the decisions extending his detention was
declared inadmissible by the Constitutional Court, on the ground that a fresh
decision extending his detention had been adopted in the meantime.
The Court has already examined in other
Croatian cases the practice of the Constitutional Court of declaring
inadmissible each constitutional complaint where, before it has given its
decision, a fresh decision extending detention has been adopted in the meantime.
In this respect the Court has found a violation of Article 5 § 4 of the
Convention in that the Constitutional Court’s failure to decide on the
applicant’s constitutional complaints on the merits made it impossible to
ensure the proper and meaningful functioning of the system for the review of
his detention, as provided for by the national law. By declaring the applicant’s
constitutional complaints inadmissible simply because a fresh decision
extending his detention had been adopted in the meantime, 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; Hađi v.
Croatia, no. 42998/08, § 47, 1
July 2010; Bernobić v. Croatia, no. 57180/09, § 93, 21 June 2011; and Šebalj v. Croatia,
no. 4429/09, § 223, 28 June 2011).
Since the circumstances of the present case do
not differ in any respect, the Court sees no reason to depart from its previous
findings.
There has accordingly been a violation of
Article 5 § 4 of the Convention as regards the failure of the Constitutional Court to decide the applicant’s complaints on the merits.
In view of these conclusions and finding of a
violation of Article 5 § 3 of the Convention (see paragraph 131), the Court
considers that there is no need to examine separately under Article 5 § 4 of
the Convention the applicant’s complaint concerning the alleged lack of response
of the domestic authorities to his complaints against the decisions extending the
maximum statutory time-limit for his detention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 3 of the
Convention about the conditions of his detention. He also complained under
Article 6 § 2 of the Convention that his right to be presumed innocent had been
violated in the decisions ordering and extending his detention. He further
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 that he had been discriminated against in comparison with
other defendants.
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.
V. 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.”
The Court notes that the applicant failed to
submit any claim for just satisfaction and for cost and expenses as provided
under Rule 60 of the Rules of Court and as requested by the Court. Accordingly,
the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints under Article 5 §
3 of the Convention concerning the length of and reasons for the applicant’s
pre-trial detention and complaints under Article 5 § 4 of the Convention
concerning the failure of the Constitutional Court to decide the applicant’s
complaints on the merits and the alleged lack of answer to the applicant’s
complaints concerning the grounds for extending his detention over the maximum
statutory time-limit admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 5 § 3 of the Convention concerning the lack of relevant and sufficient
reasons and length of the applicant’s pre-trial detention;
3. Holds that there has been a violation of
Article 5 § 4 of the Convention concerning the failure of the Constitutional Court to decide the applicant’s complaints on the merits;
4. Holds that there is no separate issue to
be examined under Article 5 § 4 of the Convention concerning the complaint
about the alleged lack of answer to the applicant’s complaints about the
grounds for extending the maximum statutory time-limit for his detention;
5. Holds that there is no call to award the
applicant just satisfaction.
Done in English, and notified in writing on 6 November 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Anatoly
Kovler
Registrar President
