DRAGIN v. CROATIA - 75068/12 - Chamber Judgment [2014] ECHR 839 (24 July 2014)

In the case of Dragin v. Croatia,

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

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 1 July 2014,

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

PROCEDURE

1. The case originated in an application (no. 75068/12) 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 Robert Dragin (“the applicant”) on 2 November 2012.

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

3. The applicant alleged that his pre-trial detention had not been lawful and had been excessively long, contrary to Article 5 §§ 1 (c) and 3 of the Convention.

4. On 6 May 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1968 and lives in Matulji.

6. On 8 October 2008 the applicant was arrested on suspicion of incitement to aggravated murder in that he, together with another person, had incited a person who had owed them money to kill their competitors in the security business in Rijeka, and that for that purpose they had obtained machine guns and explosive devices.

7. An investigation in respect of the applicant was opened in the Rijeka County Court (Županijski sud u Rijeci) on 10 October 2008.

8. On the same day an investigating judge of the Rijeka County Court remanded the applicant in custody under Article 102 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and seriousness of charges). The judge held that there was a risk that the applicant might suborn several witnesses who were to be questioned during the investigation, and that his clear determination to commit the offence at issue and its possible consequences justified his detention on the grounds of risk of reoffending and the seriousness of the charges.

9. The applicant’s detention was extended on 7 November 2008 under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges). The investigating judge found that the witnesses had already been questioned and that therefore there was no reason to remand the applicant in custody on the grounds of risk of collusion. However, the judge reiterated that the applicant’s clear determination to commit the offence and its possible consequences warranted the applicant’s detention on the grounds of risk of reoffending and the seriousness of the charges.

10. On 14 November 2008 the investigation in respect of the applicant was expanded to the offences of unlawful possession of firearms and explosives.

11. The investigating judge extended the applicant’s detention on 5 December 2008 under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges) using the same reasons as in his previous decision.

12. The applicant appealed on 11 December 2008, arguing that the reasons put forward by the investigating judge were not convincing justifications for his detention.

13. On 17 December 2008 a three-judge panel of the Rijeka County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the investigating judge.

14. On 31 December 2008 the Rijeka County State Attorney’s Office (Županijsko državni odvjetništvo u Rijeci) indicted the applicant in the Rijeka County Court on charges of incitement to aggravated murder and unlawful possession of firearms and explosives. Another individual, I.F., was also indicted in the same proceedings on charges of incitement to aggravated murder. Later, on 23 January 2009, criminal proceedings against another person, V.V., on charges of trafficking in firearms were joined to the proceedings against the applicant and I.F. in the Rijeka County Court.

15. A three-judge panel of the Rijeka County Court extended the applicant’s detention on 7 January 2009, relying on Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges). The relevant part of the decision reads:

“There is a reasonable suspicion that the accused have committed the offences at issue. The fact that the second accused, Robert Dragin, in an agreement with the first accused, I.F., twice went to the Republic of Bosnia and Herzegovina in order to find a machine gun and an explosive device suggest determination to commit the offences they are suspected of, and the fact that a larger quantity of unlawful weapons and explosive devices have been found in the possession of the second accused, Robert Dragin, suggest that they might reoffend ...

The fact that the offence of [aggravated murder] was planned to take place in Rijeka city centre near the M. bar, where a lot of young people gather, suggests to this panel that the circumstances of the offence are particularly serious ... “

16. On 12 January 2009 the applicant lodged an appeal against the above decision with the Supreme Court (Vrhovni sud Republike Hrvatske) arguing that the alleged offences at issue had never even been attempted and thus there was nothing which suggested that he might reoffend or that there were particularly serious circumstances warranting his detention.

17. The Supreme Court allowed the applicant’s appeal and on 4 February 2009 reversed the decision of the Rijeka County Court by ordering the applicant’s detention only under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). It held that the applicant’s alleged determination to commit the offences suggested that he might reoffend but that the reasons put forward by the Rijeka County Court as to the seriousness of the charges were not relevant, because all the circumstances referred to were essentially subsumed under the risk of reoffending. It also explained that the reference to the possibility that the offence of aggravated murder would be committed in a public place was irrelevant, because the offence had never been attempted, let alone executed.

18. On 24 February 2009 a three-judge panel of the Rijeka County Court returned the indictment to the Rijeka County State Attorney’s Office and ordered it to conduct a further investigation, as not all the relevant circumstances had been established.

19. During the resumed investigation, on 3 April 2009 the investigating judge of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating that his determination to commit the offences suggested that he might reoffend.

20. On 6 April 2009 the applicant appealed against the above decision, reiterating his previous arguments.

21. The applicant’s detention was further extended by a three-judge panel of the Rijeka County Court on 8 April 2009 under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) relying on the alleged determination on the applicant’s part to commit the crime, and on the circumstances of the case, which suggested that the applicant might reoffend if at liberty.

22. On 10 April 2009 a three-judge panel of the Rijeka County Court dismissed the applicant’s appeal of 6 April 2009 (see paragraph 20 above) as ill-founded.

23. On 14 April 2009 the applicant lodged an appeal against the remand in custody of 8 April 2009 (see paragraph 21 above) arguing, inter alia, that it was impossible in practice for him to reoffend, because the alleged incitement to murder was in respect of a person who later became a protected witness and was at present cooperating with the prosecuting authorities.

24. On 13 May 2009 the Supreme Court dismissed the applicant’s appeal as ill-founded, noting:

“The circumstances suggesting that the accused I.F. and Robert Dragin [might reoffend] can be observed from the indictment by which they are charged with having, for the purpose of obtaining material benefit and with reprehensible motives, incited a person who owed them money to kill others who were competitors in the security business in Rijeka, and that for that purpose they had obtained machine guns and explosive devices with a remote detonator and 238 grams of plastic explosive, which they intended to plant under the vehicle of one of the putative victims. All these circumstances show particular determination on the part of the accused. Therefore, the Supreme Court, as the second-instance court, considers that they should be remanded in custody under Article 102 § 1 (3) of the Code of Criminal Procedure in order to prevent them from continuing with such activity.

Both accused refer to the fact that they do not have a criminal record. However, having in mind the circumstances of the case suggesting that they were determined to commit a murder, that argument is of no relevance.

Furthermore, both accused submitted numerous complaints concerning the conduct of the proceedings, to which they wrongly attached great significance, arguing that the first-instance court had failed to follow the instruction to return the indictment to the State Attorney’s Office for a further investigation, and that consequently the investigation was never completed, while the maximum period of detention during the investigation had expired.

The case file shows that the accused were arrested on 8 October 2008 ... and that by extending their detention on 8 April 2009, after the investigating judge had returned the case file to the State Attorney’s Office and the latter had submitted it to a three-judge panel [of the Rijeka County Court], the time-limit under Article 106 § 3 of the Code of Criminal Procedure had not expired. In these circumstances, and given that this court, when deciding on the appeal against the decision to extend the detention, cannot go into all the complaints submitted in the appeal, all such complaints are ill-founded ... “

25. A three-judge panel of the Rijeka County Court on 13 July 2009 extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), holding as follows:

“The accused are charged with developing a detailed plan to commit the offence of incitement to aggravated murder under Article 91(4) and (6) in conjunction with Article 37 of the Criminal Code; it was planned that the murder would be committed by another person, who owed them money. The first accused, I.F., had arranged the purchase of the firearms and explosives and the second accused, Robert Dragin, had travelled twice to Bosnia and Herzegovina to bring them to Croatia, after which he had passed them to the other person, instructing him how to use them and telling him the time and place the killing was to take place. Then he [together with the other person] damaged the vehicle which one of the victims should have driven, to ensure that the victim would use a car under which an explosive device had been planted.

This court finds that the said circumstances show particular determination on the part of the accused, and suggest that the first accused I.F. and the second accused Robert Dragin might reoffend if at liberty, and therefore their detention is necessary under Article 102 § 1 (3) of the Code of Criminal Procedure.”

26. On 16 July 2009 the applicant lodged an appeal with the Supreme Court against the above decision, arguing that it was impossible in practice for him to reoffend as suggested in the reasoning of the Rijeka County Court.

27. The Supreme Court dismissed the applicant’s appeal on 10 August 2009 as ill-founded, reiterating its previous arguments.

28. On 9 October 2009 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating its previous reasoning.

29. The first hearing before the Rijeka County Court was held on 19 and 20 October 2009; the applicant and the other accused pleaded not guilty. The trial court questioned three witnesses and adjourned the hearing.

30. A further hearing was held on 30 November 2009; the trial court heard evidence from three witnesses.

31. On 30 December 2009 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating the reasoning from its previous decisions.

32. At a hearing on 21 January 2010 the trial court examined the evidence from the case file and adjourned the hearing. Another hearing was scheduled for 4 March 2010, but was adjourned because the case file was at the Supreme Court.

33. At a hearing on 15 March 2010 three expert witnesses gave oral evidence.

34. On 22 March 2010 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). The relevant part of the decision reads:

“The accused are charged with developing a detailed plan to commit the offence of incitement to aggravated murder under Article 91(4) and (6) in conjunction with Article 37 of the Criminal Code; it was intended that the murder should be committed by another person, who owed them money. The first accused, I.F., had arranged the purchase of the firearms and explosives and the second accused, Robert Dragin, had travelled twice to Bosnia and Herzegovina to bring them to Croatia, after which he passed them to the other person, instructing him how to use them and telling him the time and place the killing was to take place. Then he [together with the other person] damaged the vehicle which one of the putative victims was supposed to drive in order to ensure that the victim would use a car under which an explosive device had been planted.

The period of the alleged criminal activity and the planning of the offences, including the incitement and instructions given to Č.Đ., show a keen determination on the part of the accused to commit the offences, which suggests that the first accused I.F. and the second accused Robert Dragin might reoffend if at liberty, and therefore their detention under Article 102 § 1 (3) of the Code of Criminal Procedure is necessary.”

35. Further hearings were held between 12 and 14 April 2010, at which the trial court heard evidence from four witnesses and one expert witness.

36. Hearings were also held on 3 and 21 May 2010, at which the trial court questioned three witnesses and the third accused, V.V.

37. On 31 May 2010 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions.

38. At a hearing on 4 June 2010 the trial court heard evidence from one witness and the parties made their closing arguments.

39. On 8 June 2010 the Rijeka County Court found the applicant guilty on charges of incitement to aggravated murder and unlawful possession of firearms and explosives, and sentenced him to six years and three months’ imprisonment.

40. The applicant appealed to the Supreme Court against the first-instance judgment on 1 and 8 August 2010. He argued that the judgment had numerous substantive and procedural flaws.

41. On 10 May 2011 the Supreme Court quashed the first-instance judgment of the Rijeka County Court and ordered a retrial on the grounds of procedural errors in the way in which the evidence was taken during the trial.

42. The Supreme Court remanded the applicant in custody under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) referring to his determination to commit the offences and the circumstances in which the offences were allegedly committed.

43. On 8 July 2011 a three-judge panel of the Rijeka County Court extended the applicant’s pre-trial detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) relying on the same reasons provided in its previous decisions.

44. The applicant’s detention was further extended by a three-judge panel of the Rijeka County Court on 14 September 2011 under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions.

45. A hearing scheduled for 14 September 2011 was adjourned because the third accused failed to appear for health reasons.

46. On the same day the Rijeka County State Attorney’s Office asked the Supreme Court to extend the maximum period allowed for the applicant’s detention, relying on Article 109 § 3 of the Code of Criminal Procedure. It reiterated that the applicant should be remanded in custody on the grounds of risk of reoffending.

47. On 19 September 2011 the applicant lodged an appeal against the decision on his detention of 14 September 2011 (see paragraph 44 above), which the Supreme Court dismissed as ill-founded on 26 September 2011.

48. The Supreme Court on 26 September 2011 ordered the Rijeka County Court to examine the request of the Rijeka State Attorney’s Office of 14 September 2011 (see paragraph 46 above) on the grounds that the applicant’s detention should first be extended under Article 109 § 2 of the Code of Criminal Procedure and only after the time-limit under that provision expired should it be extended under § 3 of the same Article.

49. On 7 October 2011 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 109 § 2 of the Code of Criminal Procedure for a further nine months. The relevant part of the decision reads:

“The accused, Robert Dragin, has been in custody since 8 October 2008. His detention was extended by a decision of this court ... on 14 September 2011 under Article 102 § 1 (3) of the Code of Criminal Procedure, while his appeal was dismissed by a decision of the Supreme Court ... of 26 September 2011. Therefore, in view of the fact that on 8 October 2011 the period of his detention will amount to three years, which under Article 109 § 1 (5) of the Code of Criminal Procedure is the maximum period of detention, and that the non-final judgment of this court ... of 8 June 2010 was quashed by the decision of the Supreme Court ... of 10 May 2011, [this panel] needs to examine whether his pre-trial detention should be extended under Article 109 § 2 of the Code of Criminal Procedure ...

This panel finds that the detention of the accused, Robert Dragin, should be extended for one-quarter [of the general maximum period of detention], that is to say nine months.

... in view of the gravity of the offences the accused is suspected of, and the prescribed sentence, [this panel], under Article 109 § 2 in conjunction with Article 109 § 1 (5) of the Code of Criminal Procedure, extends the overall period of detention for one-quarter [of the general maximum period of detention], that is to say nine months, which should be sufficient to complete the proceedings.”

50. On 14 October 2011 the applicant lodged an appeal with the Supreme Court, arguing that Article 109 § 2 of the Code of Criminal Procedure was inapplicable in his case, since it concerned situations where an appeal against a first-instance judgment by which an accused had been found guilty was pending before the appeal court. In his case, however, the first-instance judgment had been quashed. He also contended that the extension of the time-limits for pre-trial detention was an exceptional measure applicable only where the trial court, even with maximum diligence, was unable to terminate the proceedings in time as a result of objective impediments. In his case, he saw no such circumstances and pointed out that the Rijeka County Court had provided no reasons in that respect.

51. On 25 October 2011 the Supreme Court dismissed the applicant’s appeal. The relevant part of the decision reads:

“This court finds that Article 109 of the Code of Criminal Procedure allows the court, in situations where the first-instance judgment and the second-instance judgment which quashed it have been adopted within the [general] time-limit provided for in Article 109 § 1, to extend the detention first under Article 109 § 2 and then under Article 109 § 3. In such cases, the period of detention under Article 109 § 3 should be extended only when the period of detention under Article 109 § 2 has expired, irrespective of whether the judgment has been upheld in the retrial or not.

Therefore, the Supreme Court considers that, contrary to the arguments in the appeal, the first-instance court lawfully and correctly extended the overall period of detention of the accused, Robert Dragin, for a quarter [of the general maximum period of detention], that is to say nine months, under Article 109 § 2 of the Code of Criminal Procedure.”

52. A hearing scheduled for 26 October 2011 was adjourned because the defence of the first accused sought the withdrawal of members of the trial panel and the prosecution, and also of the President of the Rijeka County Court. These requests were dismissed as ill-founded on 9 and 29 November 2011.

53. On 27 November 2011 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) about the decisions on his detention reiterating the complaints that he raised before the Supreme Court.

54. On 22 December 2011 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts.

55. On 22 December 2011 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions.

56. The applicant lodged an appeal against the above decision on 30 December 2011, arguing that there were no relevant or sufficient reasons for his continued detention.

57. The Supreme Court dismissed the applicant’s appeal as ill-founded on 11 January 2012, endorsing the reasoning of the Rijeka County Court.

58. A hearing scheduled for 31 January 2012 was adjourned because one of the defence lawyers was on sick leave.

59. A three-judge panel further extended the applicant’s detention on 9 March 2012 under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions.

60. A hearing scheduled for 14 March 2012 was adjourned because the applicant’s defence sought the withdrawal of members of the prosecution team, on the grounds that they had abused their powers in dealing with his case.

61. On 14 March 2012 the applicant appealed against the decision on his detention of 9 March 2012 (see paragraph 59 above) reiterating his previous arguments.

62. Between 21 and 23 March 2012 the applicant’s request for the withdrawal of the prosecution team members was dismissed as ill-founded.

63. The Supreme Court allowed the applicant’s appeal against the decision on his detention (see paragraph 61 above) and on 23 March 2012 quashed the decision of the Rijeka County Court on the grounds that a member of the three-judge panel had previously been excluded from the case. It ordered the Rijeka County Court to re-examine the case speedily.

64. On 2 April 2012 a three-judge panel of the Rijeka County Court, this time in a different composition, extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating the reasons in its previous decisions.

65. On 10 April 2012 the applicant lodged an appeal with the Supreme Court which was dismissed on 20 April 2012 as ill-founded.

66. A hearing scheduled for 21 May 2012 was adjourned because the first accused was ill.

67. On 20 June 2012 a three-judge panel again extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions.

68. On 26 June 2012 the applicant lodged an appeal with the Supreme Court, arguing that ever since the first-instance judgment had been quashed there had been no activity in the proceedings. He also pointed out that, in view of the overall length of his detention and the first-instance court’s lack of diligence in its conduct of the proceedings, his detention had become a prison sentence. Therefore, it was disproportionate to its purpose.

69. On 29 June 2012 the Rijeka County State Attorney’s Office, relying on Article 109 § 3 of the Code of Criminal Procedure, asked the Supreme Court to extend further the maximum period of the applicant’s detention already extended under Article 109 § 2 of the Code of Criminal Procedure (see paragraph 51 above).

70. On 6 July 2012 the Supreme Court allowed the request and extended the applicant’s detention for a further year. The relevant part of the decision reads:

“Since all [permissible] time-limits for detention under Article 109 §§ 1 (5) and 2 of the Code of Criminal Procedure have been exhausted, the conditions have been met to extend the detention of the accused, Robert Dragin, under Article 109 § 3 of the Code of Criminal Procedure. Since the proceedings at issue are now before the first-instance court, it is reasonable to expect that in order to conclude the proceedings the detention should be extended for the maximum period of a further year.”

71. On the same day the Supreme Court dismissed the applicant’s appeal against the decision on his detention of 20 June 2012 (see paragraphs 67 and 68 above) as ill-founded.

72. On 12 August 2012 the applicant lodged a constitutional complaint with the Constitutional Court, reiterating his previous arguments. He pointed out in particular that his detention could not be extended cumulatively under Article 109 §§ 2 and 3 of the Code of Criminal Procedure, since those provisions concerned two different situations. In any event, it was only possible to extend the detention for the maximum period in exceptional circumstances, which did not exist in his case. He also argued that the trial court had not conducted his case with due diligence.

73. On 31 August 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the Supreme Court.

74. A three-judge panel of the Rijeka County Court extended the applicant’s detention on 6 September 2012, under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating its previous arguments.

75. On 13 September 2012 the applicant lodged an appeal with the Supreme Court, reiterating his previous arguments, particularly lack of due diligence in the conduct of the proceedings.

76. Another hearing, scheduled for 25 September 2012, was adjourned because the first accused was ill.

77. On 3 October 2012 the Supreme Court allowed the applicant’s appeal of 13 September 2012 (see paragraph 75 above) and ordered his release from detention. The Supreme Court noted that the applicant had been detained since 8 October 2008 and that ever since the first-instance judgment had been quashed no hearing had been held in the proceedings at issue, and it was uncertain when a hearing would be held. It therefore considered that the applicant should be released in order to prevent the pre-trial detention from becoming a prison sentence.

78. The criminal proceedings against the applicant are still pending.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

1. Constitution

79. The relevant provisions of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010) are:

Article 22

“Personal freedom and integrity are inviolable.

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

2. Constitutional Court Act

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

Section 62

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act of a state body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations, or a suspicion or an accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter “a constitutional right”) ...

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

Section 74

“If it finds that the constitutional right of the appellant has been breached not only by the impugned decision but by some other decision in the case at issue, the Constitutional Court shall quash, wholly or in part, that decision also.”

3. Criminal Code

81. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005, 71/2006, 152/2008) are:

Incitement

Article 37

“(1) Whoever deliberately incites another to commit an offence shall receive the same penalty as if he had committed it himself.

(2) Whoever deliberately incites another to commit an offence an attempt at which is punishable, but when the offence was never attempted, shall be punished for the attempted offence at issue ...”

Aggravated murder

Article 91

“A sentence of imprisonment of not less than ten years or long-term imprisonment shall be imposed on anyone who:

... 4. murders another for pecuniary benefit ...

6. murders another ... for other reprehensible motives ... “

4. Code of Criminal Procedure

82. 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) are 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 one or more preventive measures 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 State borders;

7) temporary seizure of a driving licence ...”

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 seriousness 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.”

Grounds for Remand in Custody

Section 102

“(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be remanded in custody ...

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 ...”

Length of detention

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.

(2) In cases where a judgment has been adopted but has not yet entered into force, the maximum term of pre-trial detention may be extended for one-sixth of the term referred to in subparagraphs 1 to 3 of paragraph 1 of this provision until the judgment becomes final, and for one-quarter of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision.

(3) Where a first-instance judgment has been quashed on appeal, following an application by the State Attorney and where important reasons exist, the Supreme Court may extend the term of detention referred to in subparagraphs 1 to 3 of paragraph 1 of this provision for another six months, and the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision for another year.

(4) Following the adoption of an appellate judgment against which an appeal is allowed, detention may last until the judgment becomes final, for a maximum period of three months.

(5) A defendant placed in detention and sentenced to a prison term by a final judgment shall remain in detention until he is committed to prison, but for no longer than the duration of his prison term.”

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.”

B. Relevant domestic practice

83. The relevant part of the guidelines adopted at a meeting of the Criminal Division of the Supreme Court on 23 March 2006 [published on the Supreme Court’s website under no. Su IVk-155/2006-1] reads:

“I. Extending the duration of overall detention under Article 109 §§ 2 and 3 of the CCP.

Where a first-instance judgment and a second-instance decision quashing the first-instance judgment have been adopted within the time prescribed for detention under Article 109 § 1 of the Code of Criminal Procedure the overall duration of detention may be extended under Article 109 § 2 of the Code of Criminal Procedure and after the expiry of that period also under Article 109 § 3 of the Code of Criminal Procedure.

The overall duration of detention under Article 109 § 3 of the Code of Criminal Procedure is to be extended only after the time-limit prescribed in Article 109 § 2 of the Code of Criminal Procedure has expired, irrespective of whether the first-instance court has adopted a fresh judgment in the retrial proceedings.

The maximum period of detention where a judgment has been adopted but has not yet become enforceable is to be fixed in accordance with the penalties for the criminal offence of which the accused was found guilty, even where the State Attorney has lodged an appeal on any grounds.

II. Calculation of time-limits for the duration of detention

Where a first-instance judgment or a second-instance judgment against which an appeal is allowed have been adopted within the time-limits set by Article 109 § 1 of the Code of Criminal Procedure, the overall duration of detention may be extended under Article 109 § 2 of the Code of Criminal Procedure. After the time-limit set by that Article expires, detention may be extended under Article 109 § 4 of the Code of Criminal Procedure.

Where a first-instance judgment or a second-instance judgment against which an appeal is allowed have been adopted within the time-limits set by Article 109 § 2 of the Code of Criminal Procedure, the overall duration of detention may be extended under Article 109 § 2 of the Code of Criminal Procedure. After the time-limit set by that Article expires, detention may be extended under Article 109 § 4 of the Code of Criminal Procedure, after the expiration of the time-limit under Article 109 § 2 of the CCP.

Where a second-instance decision against which an appeal is allowed has been adopted within the time-limit set by Article 109 § 3 of the Code of Criminal Procedure, the overall duration of detention may be extended under Article 109 § 4 of the Code of Criminal Procedure, after the expiration of the time-limit set by Article 109 § 3 of the Code of Criminal Procedure.

Where a second-instance decision against which an appeal is allowed has been quashed within the time-limit set by Article 109 § 1 of the Code of Criminal Procedure, the overall duration of detention may be extended under Article 109 § 2 of the Code of Criminal Procedure, after the expiration of the time-limit set by Article 109 § 3 of the Code of Criminal Procedure.

Where a second-instance decision against which an appeal is allowed has been quashed within the time-limit set by Article 109 § 2 of the Code of Criminal Procedure, the overall duration of detention may be extended under Article 109 § 3 of the Code of Criminal Procedure ...”

84. In its decisions no. II-5 Kr-1/08-2 of 11 August 2008 and no. II-5 Kr-7/09-3 of 16 October 2009, the Supreme Court held that, in a situation in which a first-instance judgment had been quashed and a retrial ordered within the period of the general maximum statutory time-limit for pre-trial detention under Article 109 § 1 of the Code of Criminal Procedure, it can extend an accused’s detention under Article 109 § 3 of the Code of Criminal Procedure after the expiry of the time-limit under Article 109 § 2 of the Code of Criminal Procedure.

The Supreme Court explained the correlation between paragraphs 2 and 3 of Article 109 of the Code of Criminal Procedure in its decisions no. II Kž-211/10-3 of 31 March 2010 and no. II Kž-689/11-4 of 28 December 2011. The relevant part of the latter reads:

“By the correct application of Article 109 of the Code of Criminal Procedure, in a situation where the first-instance judgment and the second-instance judgment which quashed it have been adopted within the [general] time-limit provided for in Article 109 § 1, the maximum period of detention can be extended under Article 109 § 2 of the Code of Criminal Procedure, and then under Article 109 § 3 of the Code of Criminal Procedure, but only after the time-limit provided for in Article 109 § 2 of the Code of Criminal Procedure has expired, irrespective of whether or not a first-instance judgment has been adopted in the resumed proceedings.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE CONVENTION

85. The applicant complained that the domestic courts’ decisions extending the maximum statutory time-limit of his detention after 8 October 2011 for a further one year and nine months (see paragraphs 49 and 70 above) had been unlawful. He relied on Article 5 § 1 (c) of the Convention, the relevant part of which reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...”

A. Admissibility

86. 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

87. The applicant submitted that the wording of Article 109 of the Code of Criminal Procedure had suggested that the maximum time-limit for pre-trial detention provided in paragraph 1 of the same Article could be, under paragraphs 2 and 3, exceeded in two different situations. First, when an accused has been found guilty by a first-instance judgment and his detention is then extended during examination of an appeal against that verdict. Second, when a first-instance judgment finding an accused guilty has been quashed and remitted for retrial and the detention is then extended during the resumed proceedings. The latter situation was envisaged by paragraph 3 of Article 109 of the Code of Criminal Procedure, which provided that detention could be extended for a further year. In the applicant’s view, it had not been possible to aggregate the provisions of paragraphs 2 and 3 of Article 109 of the Code of Criminal Procedure, and therefore the extension of his detention had been unlawful.

88. The Government argued that the entire period of the applicant’s pre-trial detention had been fully compatible with the substantive and procedural requirements of the relevant domestic law. The interpretation of the provisions allowing for the extension of the maximum time-limits for pre-trial detention under Article 109 of the Code of Criminal Procedure had been consistent and in compliance with the Supreme Court’s guidelines and its established practice.

2. The Court’s assessment

(a) General principles

89. It is well established in the Court’s case-law under the sub-paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful” (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008, and M. v. Germany, no. 19359/04, § 90, ECHR 2009). Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see, among many other authorities, Erkalo v. the Netherlands, 2 September 1998, § 52, Reports of Judgments and Decisions 1998-VI; Saadi, cited above, § 67; Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008; and Schönbrod v. Germany, no. 48038/06, § 81, 24 November 2011).

90. This primarily requires any 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, cited above, § 116). “Quality of the law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Amuur v. France, 25 June 1996, § 50, Reports 1996-III; Nasrulloyev v. Russia, no. 656/06, § 71, 11 October 2007; and Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009). The standard of “lawfulness” set by the Convention thus requires that all law be sufficiently precise to allow a 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).

91. 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 others, Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33; Saadi, cited above, § 67; and Mooren, cited above, § 72).

(b) Application of these principles to the present case

92. The Court notes that Article 109 of the Code of Criminal Procedure prescribes the maximum permissible duration of detention before a conviction becomes final and enforceable. Thus, paragraphs 1 and 2 prescribe general rules on calculating the maximum duration of detention, while paragraph 3 addresses the issue of the maximum period of detention where a first-instance judgment has been quashed on appeal (see paragraph 82 above).

93. Even if the Court could accept, as the applicant suggested, that the wording of Article 109 creates some doubt as to the manner of calculation of the maximum permissible period of detention, it notes that any possible lack of clarity as regards the maximum period of detention was remedied by the detailed guidelines adopted at a meeting of the Criminal Division of the Supreme Court on 23 March 2006 (see paragraph 83 above; Krasniqi v. Croatia, no. 4137/10, §§ 37 and 28, 10 July 2012, and Grubić v. Croatia, no. 5384/11, §§ 40 and 41, 30 October 2012).

94. According to these guidelines, where a first-instance judgment and a second-instance decision quashing the first-instance judgment have been adopted within the time prescribed for detention under Article 109 § 1 of the Code of Criminal Procedure, as happened in the applicant’s case (see paragraphs 39 and 41 above, and paragraph 82 above - Article 109 § 1(5) of the Code of Criminal Procedure), the overall duration of detention may be extended under Article 109 § 2 of the Code of Criminal Procedure and after the expiry of that period also under Article 109 § 3 of the Code of Criminal Procedure (see paragraph 83 above). Such an approach was confirmed and consistently followed in the practice of the Supreme Court (see paragraph 84 above), and accordingly applied in the applicant’s case.

95. Furthermore, the Court notes that the guidelines were published by the Supreme Court. The applicant was legally represented throughout the criminal proceedings against him and a lawyer should be expected to be aware of the relevant case-law of the Supreme Court. The Court therefore concludes that the practice of the Supreme Court which clarified the manner of application of Article 109 of the Code of Criminal Procedure was accessible to the applicant, and that it made the application of that provision sufficiently foreseeable (see Krasniqi, cited above, § 39, and Grubić, cited above, § 42).

96. The Court therefore, noting that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, amongst many others, Gudelj v. Croatia (dec.), no. 34722/11, § 40, 2 October 2012), finds no arbitrariness in the interpretation and application of the relevant domestic law.

97. There has accordingly been no violation of Article 5 § 1 (c) of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

98. The applicant complained that the reasons put forward by the national courts when extending his pre-trial detention were not relevant or 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, the relevant part of which 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

99. The Government submitted that the applicant had failed to lodge appeals against the decisions of 9 October 2009, 22 March 2010 and 31 May 2010 extending his detention, although he could have done so under the domestic law. As regards 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 the 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 “third instance”.

100. The applicant argued that during the proceedings before the domestic courts he had lodged several appeals and constitutional complaints by which he had complained that his continued detention was unlawful, as well as that there were no relevant and sufficient reasons for it, nor had there been due diligence in the conduct of the proceedings. He submitted that he had thereby properly exhausted the domestic remedies, as required under the Convention.

2. The Court’s assessment

101. 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 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.

102. As regards the alleged violations of Article 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 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 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 Dervishi v. Croatia, no. 67341/10, § 114, 25 September 2012).

103. The Court notes that during the period of his pre-trial detention the applicant lodged twelve appeals before the domestic courts and two constitutional complaints, arguing, inter alia, that there were no relevant or sufficient grounds for his continued detention and that his pre-trial detention had been excessively long.

104. Thus 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 (see Dervishi, cited above, § 117).

105. 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

106. The applicant argued that when ordering and extending his pre-trial detention the domestic courts had essentially relied only on those circumstances which were constitutive elements of the offences he had been charged with. In his view, the same circumstances could not also serve to justify his detention, as this would mean that a reasonable suspicion that an offence had been committed was in itself sufficient to justify the prolonged periods of detention, which was contrary to the Court’s case-law. In any event, the applicant considered that the domestic courts had failed to display the necessary diligence in the conduct of the proceedings. He pointed out that the first-instance judgment of the Rijeka County Court of 8 June 2010 had been quashed by the Supreme Court on 10 May 2011 and that after that there had been no activity in the conduct of the proceedings, while at the same time he had been held in detention. The decisions of the domestic courts did not indicate, nor did they justify, such protracted proceedings, although his detention had been extended twice beyond the maximum statutory time-limits. The applicant also pointed out that it had taken the Rijeka County Court one year and ten months to adopt a first-instance judgment, after which it took one year for the case to be decided on appeal before the Supreme Court. After the Supreme Court had quashed the first-instance judgment no hearing was held in the proceedings, no evidence was taken and there was no other activity. However, during that whole period he had been kept in detention. Therefore, the applicant considered that the domestic courts had not acted with due diligence and had not given sufficient weight to his arguments that his detention was no longer reasonable or necessary; nor had they given any consideration to releasing him by imposing less severe preventive measures such as bail or police supervision.

107. The Government submitted, endorsing the reasoning of the domestic courts, that there existed relevant and sufficient reasons warranting the applicant’s detention. In particular, the circumstances of the case and the applicant’s alleged determination to commit the offences suggested that the applicant might reoffend, and the domestic courts had provided sufficient reasons in that respect. For a certain period of time the applicant had also been detained on the grounds of the seriousness of the charges, which was also justified by all the circumstances of the case at issue. In the Government’s view, given the complexity of the case, the domestic courts had displayed the necessary diligence in taking the procedural actions they did during the proceedings, and therefore the applicant’s detention had been an appropriate and reasonable measure in the circumstances of the case.

2. The Court’s assessment

(a) General principles

108. 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).

109. 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 length. To this end they must examine all the arguments 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 v. Poland [GC], no. 30210/96, § 110, ECHR 2000-XI, and Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV).

110. The persistence of reasonable suspicion that the person arrested has committed an offence is 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 given by the judicial authorities continue 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, and Bochev v. Bulgaria, no. 73481/01, § 55, 13 November 2008).

(b) Application of these principles to the present case

111. The Court observes that the applicant’s pre-trial detention began when he was arrested on 8 October 2008 (see paragraph 6 above). He was detained for the purposes of Article 5 § 3 of the Convention until his conviction by the Rijeka County Court on 8 June 2010 (see paragraph 39 above, and, for example, Belevitskiy v. Russia, no. 72967/01, § 99, 1 March 2007). From that date until 10 May 2011, when the Supreme Court quashed the first-instance judgment of the Rijeka County Court (see paragraph 41 above), he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (see Kudła, cited above, § 104). From 10 May 2011 until his release pending trial on 3 October 2012 (see paragraph 77 above), the applicant was again in pre-trial detention for the purposes of Article 5 § 3 of the Convention (see Solmaz v. Turkey, no. 27561/02, § 34, 16 January 2007).

112. It follows that the period of the applicant’s detention to be taken into consideration amounts in total to three years and twenty-three days. The Court notes at the outset that such inordinate length of the applicant’s pre-trial detention, more than three years, is a matter of great concern which require a very strong justification (see Tsarenko v. Russia, no. 5235/09, § 68, 3 March 2011, and Trifković v. Croatia, no. 36653/09, § 121, 6 November 2012).

113. The Court observes that the applicant was initially, in October 2008, detained on the grounds of the risk of collusion, risk of reoffending and seriousness of charges (see paragraph 8 above). As early as November 2008, after the witnesses had been questioned during the investigation, the applicant’s detention was extended only on the grounds of the risk of reoffending and seriousness of charges (see paragraph 9 above) until 4 February 2009, when the Supreme Court found that the latter reason was not relevant for the applicant’s remand in custody and remanded him only on the grounds of the risk of reoffending (see paragraph 17 above). It was on the grounds of the risk of reoffending that the applicant was detained until his release on 3 October 2012.

114. When extending the applicant’s detention on the grounds of the risk of reoffending the domestic courts relied on the alleged determination on the part of the applicant to commit the offences, and on the circumstances in which the offences had allegedly been planned and organised. In the Court’s view, having in mind the particularly serious nature of the offences the applicant had been charged with, these reasons, at least initially, were “relevant” and “sufficient” to justify the applicant’s detention.

115. The Court considers, however, that it is not necessary to examine further to what extent these reasons were 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 (compare, for example, Scott v. Spain, 18 December 1996, §§ 78-84, Reports of Judgments and Decisions 1996-VI; Malkov v. Estonia, no. 31407/07, § 49, 4 February 2010; Szepesi v. Hungary, no. 7983/06, § 27, 21 December 2010; and Dervishi. cited above, § 138).

116. The Court notes that the indictment against the applicant was first submitted to the trial court on 31 December 2008 and the first hearing was held more than ten months later on 19 and 20 October 2009 (see paragraphs 14 and 29 above). The applicant’s detention continued throughout that period and the first-instance judgment was adopted after a further seven months on 8 October 2010 (see paragraph 39 above).

117. The Court further observes that after the first-instance judgment convicting the applicant had been adopted, it took the Supreme Court almost a year to examine the appeals after which it quashed the first-instance judgment and ordered a retrial (see paragraph 41 above). In the further course of the proceedings several hearings were adjourned and there has been no progress or any development in the proceedings for a further one year and almost five months until the applicant’s release in October 2012 (compare Dervishi, cited above, § 141). At the same time throughout that period the applicant was detained and his detention was extended twice beyond the maximum statutory time-limits, although there was nothing in the delays which could be imputed to improper conduct on the part of the applicant, or which was justified by other relevant or weighty considerations (see paragraphs 49 and 70 above).

118. In such circumstances, in which the applicant had already been detained for more than one year and ten months during the proceedings before the first-instance court after the indictment had been sent for trial, this period of one year and almost five months of inactivity raises serious concerns as to the reasonableness of the applicant’s continued detention (compare Szepesi, cited above, § 28). This required the domestic courts to examine whether he could be released provisionally pending trial, as required under Article 5 § 3 of the Convention (see Vlasov v. Russia, no. 78146/01, § 104, 12 June 2008).

119. The Court notes, however, that at no stage of the proceedings was any consideration given to the possibility of imposing alternative, less severe preventive measures on the applicant, such as bail or police supervision, expressly set out in Croatian law as means of securing the proper conduct of criminal proceedings (see Dervishi, cited above, § 142).

120. The Court therefore finds that these delays in the course of the proceedings taken together with the very long period of one year and almost five months without any progress or new developments in the proceedings, and the fact that the domestic authorities never gave any consideration to replacing the applicant’s detention with other preventive measures, must be seen as irreconcilable with the requirement for “special diligence” (see Dervishi, cited above, § 144).

121. There has accordingly been a violation of Article 5 § 3 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

122. The applicant complained, citing Articles 5 § 4 and 13 of the Convention, that there had been no effective remedy available for his complaints. He also cited Article 6 §§ 1 and 2 of the Convention, reiterating his arguments cited above, and Article 14 of the Convention, arguing that he had been discriminated against, but without further relevant substantiation.

123. 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.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

124. 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

125. The applicant claimed 100,000 euros (EUR) in compensation for non-pecuniary damage.

126. The Government considered the applicant’s claim excessive, unfounded and unsubstantiated.

127. 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 for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant 3,100 euros (EUR) in compensation for non-pecuniary damage, plus any tax that may be chargeable to him.

B. Costs and expenses

128. The applicant also claimed costs and expenses in an unspecified amount.

129. The Government considered that the applicant had failed to substantiate his claims for costs and expenses in any way.

130. 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. The Court notes, regard being had to the documents in its possession and the above criteria, that the applicant failed to specify and substantiate his claim for costs and expenses, and therefore no award can be made under this head (see Goriany v. Austria, no. 31356/04, § 39, 10 December 2009).

C. Default interest

131. 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. Declares the complaints concerning the alleged unlawfulness and length of the applicant’s pre-trial detention, under Article 5 §§ 1 (c) and 3 of the Convention, admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 5 § 1 (c) of the Convention;

3. Holds that there has been a violation of Article 5 § 3 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,100 (three thousand one hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Croatian Kunas at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 24 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> DRAGIN v. CROATIA - 75068/12 - Chamber Judgment [2014] ECHR 839 (24 July 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/839.html Cite as: [2014] ECHR 839