FIRST SECTION
CASE OF PERICA OREB v. CROATIA
(Application no. 20824/09)
JUDGMENT
STRASBOURG
31 October 2013
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
PERICA OREB v. CROATIA JUDGMENT
1
In the case of Perica Oreb v. Croatia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 8 October 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 20824/09) 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 Perica Oreb (“the
applicant”), on 26 March 2009.
2. 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.
3. On 12 March 2010 the President of the First Section decided to
communicate the complaint under Article 5 § 3 of the Convention
concerning the length of and the reasons for the applicant’s pre-trial
detention and the complaint under Article 5 § 4 of the Convention about the
failure of the Constitutional Court to decide the applicant’s constitutional
complaints on the merits, to the Government. On 12 March 2013 further
observations were requested under Article 6 § 2 of the Convention
concerning the applicant’s right to be presumed innocent. 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
4. The applicant was born in 1982 and lives in Split.
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PERICA OREB v. CROATIA JUDGMENT
A. Criminal proceedings against the applicant
5. On 1 August 2008 an investigating judge of the Split County Court
(Županijski sud u Splitu) opened a criminal investigation in respect of the
applicant and seventeen other persons for conspiracy to supply heroin and
cocaine in Croatia and Bosnia and Herzegovina in the period between
10 January and 30 July 2008.
6. At a hearing held on 7 August 2008 before the investigating judge, the
applicant stated that he had decided to remain silent. The investigating judge
heard evidence from another suspect.
7. On 11 August 2008 the investigating judge heard evidence from two
other suspects. On the same day he asked for the applicant’s criminal
record, which was submitted on 12 August 2008 with a note that he had not
been previously convicted of any criminal offence.
8. On 20 August 2008 the investigating judge commissioned a
psychiatric report on eleven defendants, including the applicant, in order to
assess their mental state at the time the criminal offence was committed and
whether they were drug addicts.
9. On 8 September 2008 a psychiatric report commissioned for the
purposes of the investigation was submitted by a psychiatrist of the Split
Medical Faculty. As regards the applicant, the report stated that he was a
long-term drug addict who had received treatment on two occasions but
with no lasting results. He had resumed taking drugs a few months before.
Since being detained he had been on Heptanon therapy which helped him to
overcome his withdrawal symptoms. It was recommended that he continued
with that therapy.
10. On 16 September 2008 the investigating judge heard evidence from
six witnesses, police officers who conducted the police inquiry prior to the
institution of the criminal proceedings.
11. On 24 October 2008 the investigating judge heard evidence from
another suspect and on 29 and 31 October 2008 from four further police
officers. On 7 November 2008 he heard evidence from another two
suspects.
12. On 21 January 2009 the State Attorney’s Office for the Prevention of
Corruption and Organised Crime preferred charges of conspiracy to supply
heroin and cocaine in Croatia and Bosnia and Herzegovina in the period
between 10 January and 30 July 2008 against the applicant and seventeen
other defendants in the Split County Court.
13. On 29 January 2009 the applicant lodged an appeal against the bill of
indictment (prigovor protiv optužnice). By 4 February 2011 all the other
defendants had also lodged their objections.
14. On 4 March 2009 the Supreme Court returned the bill of indictment
to the State Attorney’s Office asking it to submit, within three days, a
request to take further investigative steps.
PERICA OREB v. CROATIA JUDGMENT
3
15. On 10 March 2009 the State Attorney’s Office asked the
investigating judge to take further steps.
16. On 13 March 2009 the investigating judge ordered a transcript of all
telephone conversations between the defendants, previously tapped by the
police.
17. On 12 June 2009 an expert in telecommunications submitted his
report with a transcript of those telephone conversations. The transcript
comprises 568 pages.
18. On 16 June 2009 the State Attorney’s Office submitted the same
indictment to the Split County Court.
19. On 1 July 2009 the applicant reiterated his objection to the
indictment. He also requested that the evidence obtained by the police
tapping of his telephone be excluded from the case file. The other
defendants also lodged their objections.
20. On 8 September 2009 the Supreme Court dismissed the objections to
the indictment and refused the applicant’s request to exclude from the case
file all evidence obtained by the police tapping of his telephone.
21. The first hearing scheduled for 26 April 2010 in the Split County
Court was adjourned because two defendants did not appear. One of them
had been sent to Zagreb Prison Hospital for treatment and the other was in
another medical institution. On the same day the presiding judge ordered
psychiatric report in respect of two defendants. The report was submitted on
4 May 2010.
22. A hearing before the Split County Court was held on 8 June 2010
and all the defendants stated that they would give their defence at end of the
trial.
23. At hearings held on 9, 10 and 11 June 2010 eight witnesses and the
expert in psychiatry gave their evidence.
24. At hearings held on 19 and 20 July 2010 four witnesses gave their
evidence.
25. At a hearing held on 21 July 2010 the County Court refused the
request by the defence to exclude from the case file recordings of the
defendants’ conversations.
26. At a hearing held on 14 September 2010 the majority of the
defendants, including the applicant, pleaded guilty and two further
witnesses gave their evidence.
27. Further hearings were held on 16 and 20 September 2010 and at the
latter hearing a judgment was adopted, finding the applicant guilty and
sentencing him to three years’ imprisonment. His detention was lifted.
28. Some of the defendants lodged appeals against the first-instance
judgment and the proceedings are currently pending before the Supreme
Court.
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PERICA OREB v. CROATIA JUDGMENT
B. Decisions on the applicant’s detention
29. On 1 August 2008 an investigating judge of the Split County Court
ordered all the suspects to be detained on the grounds under Article 102
§ 1 (1), (3) and (4) of the Code of Criminal Procedure, namely the danger of
the suspects absconding, the danger of the suspects reoffending and the
gravity of the charges. The relevant part of the decision, referring to the
grounds for detention, reads:
“In view of the manner in which the criminal offence was committed, the type and
quantity of the illegal substances in which the suspects were trafficking, the large
number of illegal transactions and the persistence and determination involved in
committing the criminal offences, as well as the fact that the suspects are mostly
unemployed with no means of support and that the suspects ... and Perica Oreb have
previously been convicted of the same criminal offence or of similar criminal
offences, there exists a justified fear that if released they might repeat a criminal
offence of the same kind ...”
30. A report drawn up on 4 August 2008 by the Split Police Department
expressly notes that the applicant had voluntarily come to that Department
that day and that he had then been taken to Split Prison.
31. In his appeal of 7 August 2008 the applicant argued that the written
charges against him alleged that he had had contact with only one of the
other suspects, which showed that he could not have been a participant in
any organised criminal activity since he did not know about the involvement
of the other suspects and they were not even known to him. He supported
these assertions with the argument that no illegal substances, money or
equipment necessary for trafficking in the said substances on a large scale,
such as packaging or scales, had been found on him, and that this showed
that he personally had not been involved in such trafficking.
32. He also claimed that he had never been convicted by a final
judgment of trafficking in illegal substances, but only of the criminal
offence of using illegal substances and that he was not a drug addict. Lastly,
he argued that the possibility of ordering an alternative measure to detention
had not been considered.
33. On 8 August 2008 the investigating judge asked for a copy of the
applicant’s criminal record. The report of 12 August 2008 submitted by the
Ministry of Justice indicated that the applicant had not been convicted of
any criminal offence.
34. On 22 August 2008 a three-judge panel of the Split County Court
examined the appeals lodged by the defendants. It accepted that the ground
under Article 102 § 1(1) of the Code of Criminal Procedure no longer
persisted. In other respects it dismissed the applicant’s appeal on the
grounds that: the documents in the case file showed that the applicant had
previously been convicted of similar criminal offences (without any further
explanations in that respect), and that the persistent criminal activity over a
long period with which the suspects were charged taken together with their
PERICA OREB v. CROATIA JUDGMENT
5
economic situation justified the fear that they might repeat the same
offences. The relevant part of the decision reads:
“In view of the level of criminal activity with which the defendants are charged,
namely, that they have been engaged in trafficking in illegal drugs over a long period
of time, and in view of the resolve and persistence shown in committing the offence,
the fact that the defendants ... Perica Oreb ... have already been convicted of criminal
offences, and almost all defendants have no means of subsistence, all these things
indicate that there is a danger of the defendants reoffending ...
The manner in which the criminal offences were committed, with the defendants
organising themselves into a group, and the quantity of the illegal substances whose
sale might put at risk the health of a large number of persons, amount to grave
circumstances ...”
35. On 3 September 2008 the investigating judge extended the
applicant’s detention for a further month on the grounds under Article 102
§ 1 (3) and (4) of the Code of Criminal Procedure (the danger of reoffending
and the gravity of the charges). The relevant part of the decision reads:
“In view of the level of criminal activity with which the defendants have been
charged, namely, that they have been engaged in trafficking in illegal drugs over a
long period of time, and in view of the resolve to commit criminal offences and the
fact that the defendants have previously been convicted of similar criminal offences,
there is a danger of the defendants reoffending ...
The offence was committed under grave circumstances as shown by the manner in
which it was committed, the fact that the defendants organised a group and the
quantity of the illegal substances in circulation, which, through the sale on the illegal
market, could put at risk the health of a number of persons.”
36. In his appeal of 8 September 2008 the applicant argued that he had
not previously been convicted of the same offence and that the ordering of
his detention under Article 102 § 1 (3) of the Code of Criminal Procedure
(danger of reoffending) violated the principle of the presumption of
innocence. He also reiterated that the written charges against him alleged
that he had had contact with only one of the other suspects, which showed
that he could not have been a participant in any organised criminal activity
since he did not know about the involvement of the other suspects and did
not even know who they were. He argued, in support of those assertions,
that no illegal substances, money or materials necessary for trafficking in
the said substances on a large scale, such as packaging or scales, had been
found on him and that this showed that he had not personally been involved
in such trafficking.
37. On 11 September 2008 a three-judge panel of the Split County Court
dismissed the applicant’s appeal. The relevant part of the decision reads:
“... the defendants have been charged with the criminal offence of trafficking in
illegal drugs between 10 January and 30 July 2008 ... The documents in the case file
show that the defendant ... Perica Oreb has already been convicted of similar criminal
offences; the defendant Perica Oreb ... is unemployed, and all three defendants have
no assets.
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PERICA OREB v. CROATIA JUDGMENT
In view of the high level of criminal activity with which they have been charged,
namely that they engaged in trafficking in illegal drugs during the above-mentioned
period and showed resolve and persistence in committing the offence, as well as their
economic situation – all these circumstances taken together indicate a danger of the
defendants reoffending ...
Furthermore, the offence was committed under grave circumstances as shown by the
manner in which it was committed, the fact that the defendants organised a group and
the quantity of the illegal substances, which through their sale on the illegal market
could put at risk the health of a number of persons ...”
38. On 3 October 2008 the investigating judge lifted the applicant’s
detention on the ground that the psychiatric report indicated that he had
been a drug user and that he had been buying drugs for his own use and not
in order to sell it to others. His immediate release was ordered as well. The
State Attorney lodged an appeal on 7 October 2008.
39. On 10 October 2008 a three-judge panel of the Split County Court
allowed the appeal and extended the applicant’s detention again on the
grounds under Article 102 § 1 (3) and (4) of the Code of Criminal
Procedure. The reasoning was the same as that in the decision of
11 September 2008. It was stated, inter alia, that the documents in the case
file showed that the applicant had previously been convicted of similar
criminal offences (without any further explanations in that respect). The
applicant was re-detained on 28 October 2008.
40. On 21 November 2008 the investigating judge extended the
detention in respect of all the defendants for a further month again on the
grounds under Article 102 § 1 (3) and (4) of the Code of Criminal
Procedure. This decision was quashed by a three-judge panel of the Split
County Court on 11 December 2008 on the ground that the period of further
detention had to be specified for each defendant.
41. On 10 December 2008, in another set of criminal proceedings, the
Dubrovnik County Court convicted the applicant of trafficking in heroin
and sentenced him to two years’ imprisonment.
42. On 15 December 2008 the investigating judge extended the
applicant’s detention until 28 December 2008, again on the grounds under
Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The
reasoning relied on the allegations that the accused had been charged with
trafficking in substantial quantities of heroin as their primary activity. On
16 December 2008 the applicant lodged an appeal. He argued that no drugs,
money or tools typical for the sale of drugs had been found on him and that
he had never been convicted of any drug-related crimes. He again argued
that the possibility of ordering an alternative measure to detention had not
been considered.
43. On 23 December 2008 the investigating judge issued a fresh decision
extending the applicant’s detention until 28 December, again on the grounds
under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. He
relied on the allegations that the accused had been charged with trafficking
PERICA OREB v. CROATIA JUDGMENT
7
in substantial quantities of heroin as their primary activity, on the gravity of
the charges and the fact that the defendants had no means of support,
without giving further details in this respect.
44. On 24 December 2008 a three-judge panel of the Split County Court
declared the applicant’s appeal of 16 December 2008 inadmissible because
a fresh decision on detention had been adopted in the meantime.
45. On 30 December 2008 the applicant lodged an appeal against the
investigating judge’s decision of 23 December 2008. He reiterated the
arguments from his previous appeal of 16 December 2008 and added that
before his arrest he had been employed at a hotel in Cavtat.
46. On 14 January 2009 a three-judge panel of the Split County Court
dismissed the appeal and reiterated the reasoning from its decision of
11 September 2008. It also stressed that the applicant had been convicted
before and that he had no assets.
47. On 21 January 2009 the applicant lodged a constitutional complaint
against the above decision, arguing that the following rights had been
violated: his right to personal liberty; right to a fair trial; his right to equality
before the law because the grounds for detention had been interpreted in an
unusual fashion; and his right to an effective remedy because the
examination of his appeal had been inadequate.
48. On 23 January 2009 the Split County Court extended the applicant’s
detention, again on the grounds under Article 102 § 1 (3) and (4) of the
Code of Criminal Procedure. In addition to the reasoning in the previous
decisions, it added that the applicant was a drug addict and stated, inter alia,
that he had already been convicted of similar criminal offences, without any
further explanations in that respect.
49. On 27 January 2009 the applicant lodged an appeal. In addition to
the arguments put forward in his appeal of 16 and 30 December 2008 he
added that his parents had a regular income and that therefore it could not be
said that he had no means of subsistence.
50. On 16 February 2009 the Supreme Court dismissed the appeal of
27 January 2009, holding that the alleged manner in which the criminal
offence had been committed amounted to particularly grave circumstances
which justified detention on the ground under Article 102 § 1 (4) of the
Code of Criminal Procedure. As regards the ground under Article 102
§ 1 (3) – danger of reoffending – it was deemed justified since the applicant
was a drug addict and two other sets of criminal proceedings concerning
drug-related offences were pending against him, one before the Čakovec
County Court and the other before the Dubrovnik County Court.
51. On 19 February 2009 the Constitutional Court declared the
applicant’s constitutional complaint of 22 January 2009 against the decision
of 14 January 2009 inadmissible on the ground that a fresh decision on
detention had been adopted in the meantime.
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PERICA OREB v. CROATIA JUDGMENT
52. On 16 April 2009 the Split County Court extended the applicant’s
detention, again on the grounds under Article 102 § 1 (3) and (4) of the
Code of Criminal Procedure and with the same reasoning as before, stating,
inter alia, that the applicant had already been convicted of similar offences,
without any further explanations in that respect.
53. On 8 May 2009 the Supreme Court quashed the decision of 16 April
2009 on the ground that the three-judge panel which adopted it had no such
power and that it was the investigating judge who should have decided
whether to extend the detention.
54. On 15 May 2009 the investigating judge extended the applicant’s
detention, again on the grounds under Article 102 § 1 (3) and (4) of the
Code of Criminal Procedure. The reasoning relied on the allegations that the
accused had been charged with trafficking in substantial quantities of heroin
as their primary activity and had no other income. In his appeal lodged the
same day the applicant reiterated the arguments from his appeal of
30 December 2008. As regards his previous conviction, he argued that the
Dubrovnik County Court’s judgment of 10 December 2008 had not yet
become final.
55. On 28 May 2009 the Supreme Court dismissed the appeal, endorsing
the reasons put forward by the investigating judge.
56. On 10 June 2009 the investigating judge again extended the
applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4)
of the Code of Criminal Procedure and with the same reasoning as in the
decision of 15 May 2009.
57. On 16 June 2009 the applicant lodged an appeal. He reiterated his
previous arguments.
58. On 18 June 2009 a three-judge panel of the Split County Court
extended the applicant’s detention, again on the grounds under Article 102
§ 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same
reasoning as in the previous decisions concerning the applicant’s detention.
It stated, inter alia, that the documents in the case file showed that the
applicant had already been convicted of similar offences, without any
further explanations in that respect.
59. On 24 June 2009 the applicant lodged an appeal reiterating his
previous arguments.
60. On 30 June 2009 a three-judge panel of the Split County Court
declared the applicant’s appeal of 16 June 2009 inadmissible because a
fresh decision on his detention had been adopted in the meantime.
61. On 13 July 2009 the Supreme Court dismissed the applicant’s appeal
of 24 June 2009. As to the applicant’s previous convictions, it stated:
“All appellants, save for ... Perica Oreb ... had already been convicted of similar
criminal offences ...
... criminal proceedings are currently pending against the accused Perica Oreb
before the Dubrovnik County Court in which he has been convicted, by a judgment
PERICA OREB v. CROATIA JUDGMENT
9
that has not yet become final, of a criminal offence under Article 173 § 2 of the
Criminal Code and sentenced to two years’ imprisonment. Therefore, the fact that the
accused had not been finally convicted could not alter conclusion that there is a
danger of him reoffending since other criminal proceedings are pending against the
accused, which is also relevant in assessing the conformity of their lifestyles with the
laws.
...”
62. On 14 September 2009 a three-judge panel of the Split County Court
again extended the applicant’s detention on the grounds under Article 102
§ 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same
reasoning as in the previous decisions concerning the applicant’s detention
and stating, inter alia, that the documents in the case file showed that the
applicant had already been convicted of similar offences, without any
further explanations in that respect.
63. On 17 September 2009 the applicant lodged an appeal reiterating his
previous arguments.
64. On 28 September 2009 the Supreme Court dismissed the appeal. As
to the applicant’s previous convictions, it stated:
“All appellants, save for ... Perica Oreb ... had already been convicted of similar
criminal offences ...
... criminal proceedings are currently pending against the accused Perica Oreb
before the Dubrovnik County Court in which he has been convicted, by a judgment
that has not yet become final, of a criminal offence under Article 173 § 2 of the
Criminal Code and sentenced to two years’ imprisonment.
The above circumstances taken together justify the fear that they would continue
committing the same or similar offences and that therefore [the decision to extend]
their detention on the ground under Article 102 § 1 (3) of the Code of Criminal
Procedure is correct.
...”
65. The applicant lodged a constitutional complaint, challenging the
grounds for and the duration of his detention.
66. On 26 November 2009 a three-judge panel of the Split County Court
extended the applicant’s detention, again on the grounds under Article 102
§ 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same
reasoning as in the previous decisions concerning the applicant’s detention
and stating that the applicant’s criminal record showed that he had already
been convicted of similar offences.
67. On 1 December 2009 the applicant lodged an appeal reiterating his
previous arguments.
68. On 15 December 2009 the Constitutional Court declared the
applicant’s constitutional complaint against the decision of 28 September
2009 inadmissible on the ground that it was no longer in effect since a fresh
decision on the applicant’s detention had meanwhile been adopted.
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PERICA OREB v. CROATIA JUDGMENT
69. On 16 December 2009 the Supreme Court dismissed the appeal. As
to the applicant’s previous convictions, it stated:
“All appellants, save for ... Perica Oreb ... had already been convicted of similar
criminal offences ...
Even though there is no previous conviction in the criminal record of Perica Oreb,
the documents in the case file show that ... criminal proceedings are currently pending
against him before the Dubrovnik County Court in which he has been convicted, by a
judgment that has not yet become final, of a criminal offence under Article 173 § 2 of
the Criminal Code and sentenced to two years’ imprisonment. These circumstances,
contrary to the submissions of all the appellants, are relevant in assessing the
conformity of their lifestyles with the laws.
The above circumstances together with the fact that all of the appellants, save for
D.R., are heroin addicts and the accused ... Perica Oreb is unemployed ... justify the
fear that, if at large, they would continue to commit the same or similar criminal
offences and therefore [the decision to extend] their detention on the ground under
Article 102 § 1 (3) of the Code of Criminal Procedure is correct.
...”
70. The applicant lodged a constitutional complaint, again challenging
the grounds for and the duration of his detention.
71. On 12 February 2010 a three-judge panel of the Split County Court
extended the applicant’s detention, again on the grounds under Article 102
§ 1 (3) and (4) of the Code of Criminal Procedure. The reasoning relied on
the indictment, which charged the accused with conspiracy to supply a large
quantity of heroin for a longer period of time, the danger of such criminal
activity, the fact that they were heroin addicts and had no other income.
72. On 18 February 2010 the applicant lodged an appeal reiterating his
previous arguments.
73. On 25 February 2010 the Constitutional Court declared the
applicant’s constitutional complaint against the decision of 16 December
2009 inadmissible on the ground that it was no longer in effect since a fresh
decision on the applicant’s detention had meanwhile been adopted.
74. On 12 March 2010 the Supreme Court dismissed the appeal,
endorsing the reasoning of the impugned decision. As regards the applicant,
it specifically stated that:
“The accused Perica Oreb is, according to his own statement, unemployed, with no
assets and the psychiatric report shows that he is a heroin addict. Furthermore, he has
been convicted of the offence under Article 173 § 2 of the Criminal Code by a
judgment of the Dubrovnik County Court which has not yet become final”
75. On 12 May 2010 a three-judge panel of the Split County Court
extended the applicant’s detention, again on the grounds under Article 102
§ 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same
reasoning as in its decision of 12 February 2010.
76. On 14 May 2010 the applicant lodged an appeal reiterating his
previous arguments.
PERICA OREB v. CROATIA JUDGMENT
11
77. On 23 June 2010 the Supreme Court dismissed the appeal, endorsing
the reasoning of the impugned decision. As regards the applicant, it
specifically gave the same reasons as in its decision of 12 March 2010.
78. On 24 August 2010 a three-judge panel of the Split County Court
extended the applicant’s detention, again on the grounds under Article 102
§ 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same
reasoning as in the decision of 12 May 2010.
79. On 30 August 2010 the applicant lodged an appeal reiterating his
previous arguments. As indicated above (paragraph 27) the applicant was
convicted by the County Court and released on 20 September 2010.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant law
80. The relevant provisions of the Code of Criminal Procedure (Official
Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003)
provide:
Preventive Measures
Article 90
“(1) Where the conditions for ordering detention under Article 102 of this Code
have been fulfilled, and where the same purpose may be achieved by other preventive
measures under this Article, the court shall order that one or more preventive
measures are to be applied ...
(2) Preventive measures are:
1) prohibition on leaving one’s place of residence;
2) prohibition on being in a certain place or area;
3) obligation on the defendant to report periodically to a certain person or a State
body;
4) prohibition on access to a certain person or on establishing or maintaining contact
with a certain person;
5) prohibition on undertaking a certain business activity;
6) temporary seizure of a passport or other document necessary for crossing the
State border;
7) temporary seizure of a driving licence.
...”
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PERICA OREB v. CROATIA JUDGMENT
8. General Provisions on Detention
Article 101
(1) Detention may be imposed only if the same purpose cannot be achieved by
another [preventive] measure.
(2) Detention shall be lifted and the detainee released as soon as the grounds for
detention cease to exist.
(3) When deciding on detention, in particular its duration, the court shall take into
consideration the proportionality between the gravity of the offence, the sentence
which ... may be expected to be imposed, and the need to order and determine the
duration of detention.
(4) The judicial authorities conducting the criminal proceedings shall proceed with
particular urgency when the defendant is in detention and shall review of their own
motion whether the grounds and legal conditions for detention have ceased to exist, in
which case the detention measure shall immediately be lifted.
9. Grounds for Ordering Detention
Article 102
(1) Where a reasonable suspicion exists that a person has committed an offence, that
person may be placed in detention:
...
3. special circumstances justify the suspicion that the person concerned might
reoffend ...
4. if the charges involved relate to murder, robbery, rape, terrorism, kidnapping,
drug abuse, extortion or any other offence carrying a sentence of at least twelve years’
imprisonment, when detention is justified by the modus operandi or other especially
grave circumstances of the offence.
81. The relevant provisions of the Enforcement of Prison Sentences Act
(Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and
190/2003) read as follows:
Basic Provisions
Section 1
“(1) This Act regulates the execution of prison sentences.
...”
The Use of Terms
Section 8
“The terms used in this Act have the following meaning:
1. A detainee is any person held in detention pursuant to a pre-trial detention order.
...
PERICA OREB v. CROATIA JUDGMENT
13
3. An inmate is any person sentenced to a prison sentence for a criminal offence,
serving the prison sentence in a prison or in a jail.
...”
JUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE PRISON
ADMINISTRATION
Section 17
“(1) An inmate may lodge a request for judicial protection against any acts or
decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by
this Act.
(2) Requests for judicial protection shall be decided by the judge responsible for the
execution of sentences.”
Criteria for sending a convict to serve a prison sentence
Article 49
“ ...
(4) If a convict’s pre-trial detention has been ordered or extended in another set of
criminal proceedings, the judge responsible for the execution of the prison sentence
shall send him to serve the prison sentence which will start after the pre-trial detention
has been lifted.
...”
B. Relevant practice
82. In its decision of 17 March 2009, nos. U-III/4182/2008 and UIII/678/2009, in the case of Robert Peša, concerning, inter alia, the
conditions of his pre-trial detention in Zagreb Prison, the Constitutional
Court found a violation of Mr Peša’s right to human treatment and to
respect for his dignity and also ordered the Government to adjust the
facilities at Zagreb Prison to the needs of detainees within a reasonable
time, not exceeding five years. It further held that a complaint about prison
conditions to a judge responsible for the execution of sentences under the
Enforcement of Prison Sentences Act was also to be used by persons in pretrial detention. The relevant part of this decision reads:
“20. ... the Constitutional Court established the following obligatory legal opinion:
- the courts are obliged to apply the same procedures concerning requests for
protection of the rights of convicted prisoners to the judges responsible for the
execution of sentences with respect to such requests lodged by persons placed in pretrial detention ...
...
22. For the reasons set out in points ... 17 [of this decision] the Constitutional Court
finds that the general conditions of the applicant’s detention amount to degrading
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PERICA OREB v. CROATIA JUDGMENT
treatment and thus infringe his constitutional rights guaranteed under Articles 23 and
25 § 1 of the Constitution as well as his rights under Article 3 of the Convention.
The Constitutional Court has not addressed the possibility of granting the applicant
just satisfaction for the above infringements of his constitutional and Convention
rights because in the Croatian legal system there exists another, effective legal remedy
in that respect (see the Constitutional Court’s decision no. U-III-1437/07 of 23 April
2008.”
83. In decision no. U-III-1437/2007 of 23 April 2008 the Constitutional
Court found that the conditions of detention of a prisoner, P.M., in
Lepoglava State Prison amounted to inhuman treatment. It also addressed
the question of P.M.’s claim for just satisfaction. The relevant parts of the
decision read:
“In particular, the Constitutional Court finds unacceptable the [lower] courts’
opinion that in this case a claim for non-pecuniary damage cannot be awarded under
section 200 of the Civil Obligations Act on the ground that such a compensation claim
is unfounded in law.
...
Section 1046 of the Civil Obligations Act defines non-pecuniary damage as
infringement of the right to respect for one’s personal integrity. In other words, every
infringement of one’s right to personal integrity amounts to non-pecuniary damage.
Section 19(2) of the Civil Obligations Act defines the right to personal integrity for
the purposes of that Act as: the right to life, physical and mental health, reputation,
honour, respect for one’s dignity and name, privacy of personal and family life,
freedom and other aspects.
... it is to be concluded that in this case there has been a violation of human,
constitutional and personal values because the applicant was in prison conditions
which were incompatible with the standards prescribed by the Enforcement of Prison
Sentences Act and also with the legal standards under Article 25 § 1 of the
Constitution. For that reason the courts are obliged to award compensation for the
infringement of the applicant’s dignity.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
84. In his submissions of 31 March 2010 the applicant complained under
Article 3 of the Convention that the conditions of his detention had been
inhuman.
85. The Court notes that in its decision in the case of Peša of 17 March
2009, no. U-III/4182/2008, the Constitutional Court established that the
remedies under the Enforcement of Prison Sentences Act, namely a
complaint to a judge responsible for the execution of sentences applied
PERICA OREB v. CROATIA JUDGMENT
15
equally to convicted prisoners and persons in pre-trial detention (see
paragraph 82 above).
86. Furthermore, in the same decision the Constitutional Court itself
found a violation of the right of a detained person not to be exposed to
inhuman and degrading treatment as regards prison conditions. Owing to the
conditions the Constitutional Court found to be in violation of Article 3 of
the Convention, it ordered the immediate release of the person concerned,
who then had the right to seek compensation from the State.
87. In its judgment in the case of Peša v. Croatia (no. 40523/08, 8 April
2010) the Court accepted that the findings of the Constitutional Court
together with a possibility of seeking compensation from the State stripped
the applicant in that case of his victim status in connection with his
complaint about the conditions in pre-trial detention under Article 3 of the
Convention.
88. The Court thus finds that, as regards complaints about the conditions
of pre-trial detention, individual measures are available under the national
law and that therefore the available remedies have to be exhausted.
89. The Court notes that the applicant failed to submit his complaint
about the prison conditions to a judge responsible for the execution of
sentences or to the prison administration and in the case of the unfavourable
outcome of these complaints to use further available remedies, including a
constitutional complaint in this respect (see Peša, cited above, §§ 78-80).
He has thus, contrary to the principle of subsidiarity, failed to afford the
national authorities a possibility to remedy the situation he is now
complaining of to the Court.
90. It follows that this complaint must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
91. The applicant complained that his right to trial within a reasonable
time or release pending trial had not been respected and that the reasons
relied on by the national authorities for ordering and extending his detention
could not be regarded as relevant and sufficient. He relied on Article 5 § 3
of the Convention, the relevant part of which provides:
“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
92. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3(a) of the Convention. It further notes
16
PERICA OREB v. CROATIA JUDGMENT
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties’ arguments
93. The applicant, reiterating the arguments from his appeals lodged
before the national courts, argued that the grounds for his detention were not
relevant and sufficient, that his pre-trial detention exceeded a reasonable
time and that the national courts had not conducted the criminal proceedings
against him with the required efficiency, in view of the fact that he had been
placed in pre-trial detention.
94. The Government, reiterating the reasons put forward by the national
courts, argued that the grounds for the applicants’ detention had been
relevant and sufficient throughout his detention. In their view, the fact that
the applicant was found to be a long-term drug addict and charged with
being a member of an organised group engaged in trafficking in drugs
justified the national court’s belief that he posed a danger of re-offending.
His detention was also justified by the alleged manner in which the criminal
offence at issue had been committed, that is to say, over a long period of
time by an organised group of persons trafficking in heroin and cocaine.
95. The national courts had regularly examined whether the grounds for
the applicant’s detention had still persisted and had shown due diligence in
the conduct of the proceedings.
2. The Court’s assessment
(a) Period to be taken into consideration
96. The Court notes that there is no dispute between the parties that the
period to be taken into consideration began on 4 August 2008, when the
applicant was taken to Split Prison. There is also no dispute that the
applicant was released on 3 October 2008 and that he was again detained
between 28 October 2008 and 20 September 2010, when he was released.
97. Given that the applicant’s pre-trial detention consisted of two
separate periods, the Court firstly refers to its judgment in the Idalov
v. Russia case, where it found, as regards the six-month rule, that an
applicant is obliged to bring any complaint which he or she may have
concerning pre-trial detention within six months of the date of the actual
release. It follows that periods of pre-trial detention which end more than
six months before an applicant lodges a complaint before the Court cannot
be examined, having regard to the provisions of Article 35 § 1 of the
Convention (see Idalov v. Russia [GC], no. 5826/03, § 130, 22 May 2012).
In the present case the applicant did comply with the six-month rule in
PERICA OREB v. CROATIA JUDGMENT
17
respect of both periods of detention as he brought his application before the
Court on 26 March 2009.
98. According to the Court’s well-established case-law, in determining
the length of detention under Article 5 § 3 of the Convention, the period to
be taken into consideration begins on the day the accused was taken into
custody and ends on the day when he was released (see, for example, Fešar
v. the Czech Republic, no. 76576/01, § 44, 13 November 2008) or when the
charge was determined, even if only by a court of first instance (see,
Belevitskiy v. Russia, no. 72967/01, § 99, 1 March 2007; and Sizov
v. Russia, no. 33123/08, § 44, 15 March 2011). As regards the latter point,
in view of the essential link between Article 5 § 3 of the Convention and
paragraph 1 (c) of that Article, a person convicted at first instance cannot be
regarded as being detained “for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an
offence”, but is in the position provided for by Article 5 § 1 (a), which
authorises deprivation of liberty “after conviction by a competent court”
(see Labita v. Italy [GC], no. 26772/95, §§ 145-147, ECHR 2000-IV; and
Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000-XI).
99. Having in mind the above considerations, the Court must first
address the possible effect of the applicant’s conviction in another parallel
set of criminal proceedings (see paragraph 41 above) on the period to be
taken into consideration in respect of his complaint under Article 5 § 3 of
the Convention.
100. In this connection the Court firstly notes that throughout his
detention the applicant was remanded in custody in connection with the
criminal proceedings which commenced on 1 August 2008 (see paragraph 5
above) and on grounds specific to those proceedings. Secondly, the Court
also notes that in Croatia there exist two types of detention, differing in
terms of premises and regime. The first type is pre-trial detention. Detainees
are placed in detention centres rather than in ordinary prisons and are
subject to a specific regime as regards the organisation of their time, the
right to visits, the right to work in the prison, and so on. The second type is
in ordinary prisons, where convicted prisoners are accommodated. Once
sentenced to a prison term a convict is not transferred to a prison
automatically, but only on the basis of a specific order, and on his or her
admission to a prison an individual prison regime and programme is set up
(see Dervishi v. Croatia, no. 67341/10, § 123, 25 September 2012).
101. However, if pre-trial detention against the convicted person has
been ordered or extended in another set of criminal proceedings, that person
cannot start to serve his prison term while in pre-trial detention. The Court
has already addressed this issue in the above mentioned Dervishi case where
the applicant, who was sentenced to a prison term on charges of extortion
while being in pre-trial detention in connection with the criminal
proceedings on charges of trafficking in heroin, asked to start serving his
18
PERICA OREB v. CROATIA JUDGMENT
prison sentence concerning the conviction of extortion. Even though that
request was allowed, the applicant was nevertheless not allowed to start
serving his prison term as long as he was detained in connection with the
criminal proceedings against him on charges of trafficking in heroin (see
Dervishi, cited above, § 124).
102. Against the above background, the Court considers that, in the
present case, there was no causal connection between the applicant’s
conviction in another set of criminal proceedings and the deprivation of
liberty at issue (see M. v. Germany, no. 19359/04, § 88, ECHR 2009 and
Dervishi, cited above, § 125) and that his pre-trial detention in the
proceedings at issue never coincided with serving any prison sentence
following his conviction in separate criminal proceedings (see, by contrast,
Piotr Baranowski v. Poland, no. 39742/05, §§ 14, 45, 2 October 2007).
Therefore, in these circumstances the Court considers that the applicant’s
conviction in another set of criminal proceedings has no influence on the
overall period of his pre-trial detention which is to be examined in the
present case (see Dervishi, cited above, § 125).
103. As to the two periods of the applicant’s pre-trial detention, namely
between 4 August and 3 October 2008 and then between 28 October 2008
and 20 September 2010, the Court considers that, according to its case-law,
where such periods can be examined before the Court having regard to the
provisions of Article 35 § 1 of the Convention, a global assessment of the
aggregate period is required (see, for example, Smirnova v. Russia,
nos. 46133/99 and 48183/99, § 66, ECHR 2003-IX (extracts), and, mutatis
mutandis, Idalov, cited above, § 130; and Dervishi, cited above, § 126).
104. It follows that the period of the applicant’s pre-trial detention to be
taken into consideration began on 4 August 2008, the date of the applicant’s
placement in Split Prison, and ended on 20 September 2010, when he was
released, less the period between 3 and 28 October 2008, during which the
applicant was released from detention, which in total amounts to two years
and twenty-two days.
(b) General principles
105. Under the Court’s 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 according to its special features. 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, cited
above).
106. The presumption is in favour of release. As the Court has
consistently held, the second limb of Article 5 § 3 does not give judicial
PERICA OREB v. CROATIA JUDGMENT
19
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).
107. The Court further observes that 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 of time.
To this end they must examine all the facts arguing for or against the
existence of a genuine requirement of public interest justifying, with due
regard to the principle of the 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 true facts mentioned 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,
cited above, § 152).
108. 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 v. Bulgaria, no. 33977/96, § 84 in
fine, 26 July 2001).
109. 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 continue to justify the deprivation of
liberty. Where such grounds are “relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed “special
diligence” in the conduct of the proceedings (see Labita, cited above,
§ 153).
(c) Application of the general principles to the present case
110. The Court notes that the applicant was held in custody for more
than two years. A pre-trial detention of this length is a matter of concern for
the Court. It observes that the domestic courts extended the applicant’s
detention a number of times. In their decisions they consistently relied on
the gravity of the charges as the main factor and on the applicant’s potential
to reoffend.
20
PERICA OREB v. CROATIA JUDGMENT
111. As regards the courts’ reliance on the gravity of the charges as the
decisive element, the Court has repeatedly held that the gravity of the
charges cannot by itself serve to justify long periods of detention (see
Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral
v. Poland, no. 38654/97, § 68, 30 October 2003; and Ilijkov, cited above,
§ 81).
112. The other grounds for the applicant’s continued detention were the
domestic courts’ findings that the applicant could reoffend. The Court
reiterates that it is incumbent on the domestic authorities to establish the
existence of concrete facts relevant to the grounds for continued detention.
Shifting the burden of proof to the detained person in such matters is
tantamount to overturning the rule of Article 5 of the Convention, a
provision which makes detention an exceptional departure from the right to
liberty and one that is only permissible in exhaustively enumerated and
strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April
2005). It remains to be ascertained whether the domestic authorities
established and convincingly demonstrated the existence of specific facts in
support of their conclusions.
(i) The danger of reoffending
113. In a number of the detention orders the domestic courts cited the
likelihood that the applicant would reoffend as an additional ground
justifying his continued detention. In this connection, the Court observes
that the judicial authorities in assessing whether there was a risk that the
applicant would reoffend indicated that he had been previously convicted of
similar offences. However, they did not refer to any specific final judgment
finding the applicant guilty, but in some of the decisions extending his
detention relied on the fact that parallel criminal proceedings were pending
before some other courts. However, as there was no formal finding of a
previous crime in a final conviction, the principle of the presumption of
innocence demands that merely pending proceedings could not be referred
to as a proof of one’s propensity to commit criminal offences. In this
connection the Court also notes that the applicant had no previous criminal
record.
(ii) Seriousness of the alleged offences
114. The Court has repeatedly held that although the severity of the
sentence faced is a relevant element in the assessment of the risk of
absconding or reoffending, the need to continue the deprivation of liberty
cannot be assessed from a purely abstract point of view, taking into
consideration only the gravity of the offence. Nor can continuation of the
detention be used to anticipate a custodial sentence (see Belevitskiy
v. Russia, no. 72967/01, § 101, 1 March 2007; Panchenko, cited above,
PERICA OREB v. CROATIA JUDGMENT
21
§ 102; Khudoyorov v. Russia, no. 6847/02, § 180, ECHR 2005-X; Ilijkov,
§ 81; and Peša, § 104, cited above).
115. In the present case, throughout the applicant’s pre-trial detention,
the domestic courts extended the applicant’s detention also on the ground of
the particularly grave circumstances under which he had allegedly
committed the offences at issue. In doing so, the national courts used 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 v. Russia, no. 5235/09, § 70, 3 March 2011).
116. At this juncture the Court reiterates that a court decision extending
detention on such grounds requires a more solid basis to show not only that
there was genuinely “a reasonable suspicion”, but also that there were other
serious public-interest considerations which, notwithstanding the
presumption of innocence, outweighed the right to liberty (see, among other
authorities, I.A. v. France, 23 September 1998, § 102, Reports 1998-VII;
and Šuput v. Croatia, no. 49905/07, § 102, 31 May 2011).
117. The Court has already held on a number of occasions that, by
reason of their particular gravity and public reaction to them, certain
offences may give rise to a social disturbance capable of justifying pre-trial
detention, at least for a time. In exceptional circumstances this factor may
therefore be taken into account for the purposes of the Convention, in any
event in so far as domestic law recognises the notion of disturbance to
public order caused by an offence. However, this ground can be regarded as
relevant and sufficient only provided that it is based on facts capable of
showing that the accused’s release would actually disturb public order. In
addition detention will continue to be legitimate only if public order remains
actually threatened; its continuation cannot be used to anticipate a custodial
sentence (see Kemmache v. France, 27 November 1991, § 52, Series A
no. 218, and Tomasi v. France, 27 August 1992, § 91, Series A no. 241-A;
and Aleksandr Makarov v. Russia, no. 15217/07, § 136, 12 March 2009).
118. In the present case these conditions were not satisfied. The Court
notes that Croatian law does not recognise the notion of prejudice to public
order caused by an offence as a ground for detention (see Peša v. Croatia,
cited above, § 103). Furthermore, the national courts did not explain why
continued detention of the applicant was necessary in order to prevent
public disquiet and did not examine whether the applicant presented a
danger for public safety.
(iii) Alternative measures of restraint
119. The Court further emphasises that when deciding whether a person
should be released or detained the authorities have an obligation under
Article 5 § 3 to consider alternative measures of ensuring his or her
22
PERICA OREB v. CROATIA JUDGMENT
appearance at the trial (see Sulaoja v. Estonia, no. 55939/00, § 64,
15 February 2005, and Jabłoński v. Poland, no. 33492/96, § 83,
21 December 2000). During the entire period under consideration the
authorities did not consider the possibility of ensuring the applicant’s
attendance by the use of other “preventive measures” expressly provided for
by Croatian law to secure the proper conduct of criminal proceedings.
(iv) Conclusion
120. In sum, the Court finds that the domestic authorities’ decisions
were not based on an analysis of all the pertinent facts. They took no notice
of the arguments in favour of the applicant’s release pending trial.
121. Having regard to the above, the Court considers that by failing to
refer to concrete relevant facts or consider alternative “preventive
measures”, the authorities extended the applicant’s detention on grounds
which cannot be regarded as “sufficient”. They thus failed to justify the
applicant’s continued deprivation of liberty for a period of over two years. It
is hence not necessary to examine whether the proceedings against the
applicant were conducted with due diligence during that period as such a
lengthy period cannot in the circumstances be regarded as “reasonable”
within the meaning of Article 5 § 3 (see Pekov v. Bulgaria, no. 50358/99,
§ 85, 30 March 2006).
122. There has therefore been a violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION
CONVENTION
OF
ARTICLE
5
§
4
OF
THE
123. The applicant also complained that the proceedings concerning his
appeals against the detention orders issued against him had not met the
requirements of 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
124. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be declared
admissible.
PERICA OREB v. CROATIA JUDGMENT
23
B. Merits
1. The parties’ arguments
125. The applicant maintained that the Constitutional Court had declared
three of his constitutional complaints inadmissible solely on the ground that
a fresh decision extending his detention had been adopted in the meantime.
In the applicant’s view, such practice ran counter to the requirements of
Article 5 § 4 of the Convention.
126. The Government maintained that in Croatia detention could be
ordered and extended only by a decision of a competent court. An appeal
against such a decision was always provided for which ensured examination
of the decisions on detention. A detained person was also able to lodge a
request for his or her release at any time.
127. As regards the case in issue, the Government submitted that each
time the applicant had lodged an appeal against any of the decisions
concerning his detention the appeal had been examined on the merits by an
appeal court. Thus, the requirements of Article 5 § 4 of the Convention had
been satisfied.
128. Furthermore, the present case was to be distinguished from the case
of Peša v. Croatia because the applicant’s constitutional complaint of
21 January 2009 had been registered at the Constitutional Court on
22 January 2009, only a day before the Split County Court had again
extended the applicant’s detention. Therefore, the Constitutional Court
could not have examined a complaint against a decision which was no
longer in effect.
2. The Court’s assessment
(a) General principles
129. 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 v. Belgium, 18 June 1971, § 76,
Series A no. 12, and Ismoilov and Others v. Russia, no. 2947/06, § 145,
24 April 2008). A remedy must be made available during a person’s
detention to allow that person to obtain 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
24
PERICA OREB v. CROATIA JUDGMENT
afford applicants a realistic possibility of using the remedy (see, mutatis
mutandis, Čonka v. Belgium, no. 51564/99, §§ 46 and 55, ECHR 2002-I).
(b) Application of these principles in the present case
130. The Court firstly notes that under the relevant domestic law,
detention during an investigation must be reviewed by the investigating
judge after one month and then again after two and three months
(Article 107 of the Code of Criminal Procedure). After the indictment has
been filed, detention must be judicially reviewed every two months. The
Court notes that in the circumstances of the present case the lawfulness of
the applicant’s detention was considered by the domestic courts on many
occasions.
131. The applicant was able to lodge requests for his release. He was
also able to lodge an appeal against each decision of the investigating judge
ordering and extending his detention, as well as an appeal with the Supreme
Court against each decision of the Split County Court extending his
detention. The Court finds that the national courts periodically and
automatically reviewed the applicant’s detention and gave reasons for its
extension. Each time the applicant was also able to lodge a constitutional
complaint. However, the Court notes that the practice of the Constitutional
Court is to declare inadmissible each constitutional complaint where, before
it has given its decision, a fresh decision extending detention has been
adopted in the meantime. Thus, the applicant’s constitutional complaint of
22 January 2009 against the Supreme Court’s decision of 14 January 2009
was declared inadmissible by the Constitutional Court on such grounds on
19 February 2009 (see paragraph 51 above). The same is true for the
applicant’s constitutional complaint against the Supreme Court’s decision of
28 September 2009, declared inadmissible on 15 December 2009 (see
paragraph 68 above); and the constitutional complaint against the Supreme
Court’s decision of 16 December 2009, declared inadmissible on
25 February 2010 (see paragraph 73 above). The Court therefore has to
address the question of the compliance of the Constitutional Court’s
decisions with the requirements of Article 5 § 4 of the Convention.
132. In this connection the Court reiterates that, according to its caselaw, Article 5 § 4 enshrines, as does Article 6 § 1, the right of access to
court, which can only be subject to reasonable limitations that do not impair
its very essence (see Shishkov v. Bulgaria, no. 38822/97, §§ 82-90,
ECHR 2003-I, and Bochev v. Bulgaria, no. 73481/01, § 70, 13 November
2008).
133. Furthermore, whereas Article 5 § 4 does not compel the
Contracting States to set up a second level of jurisdiction for the
examination of applications for release from detention, a State which
institutes such a system must in principle nevertheless accord detainees the
same guarantees on appeal as at first instance (see Toth v. Austria,
PERICA OREB v. CROATIA JUDGMENT
25
12 December 1991, § 84, Series A no. 224; Rutten v. the Netherlands,
no. 32605/96, § 53, 24 July 2001; Lanz v. Austria, no. 24430/94, § 42,
31 January 2002; and Svipsta v. Latvia, no. 66820/01, § 129,
ECHR 2006-III). The Court considers that the same applies in a system
which provides for a constitutional complaint against decisions ordering and
extending detention (see Peša, cited above, § 124, 8 April 2010).
134. However, the Croatian system, although allowing for a
constitutional complaint, leaves it to the Constitutional Court to await a
fresh decision on extending detention and then to declare the complaint
against the previous decision on detention inadmissible. Thus, although the
applicant lodged a constitutional complaint against the three abovementioned decisions of the Supreme Court, the Constitutional Court did not
decide on the merits of any of these complaints but declared them all
inadmissible because each time a fresh decision on the applicant’s detention
had meanwhile been adopted.
135. In the Court’s opinion, the Constitutional Court’s failure to
examine 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 meanwhile been
adopted, the Constitutional Court did not satisfy the requirement “that the
circumstances voluntarily created by the authorities must be such as to
afford applicants a realistic possibility of using the remedy” (see Peša, cited
above, § 126, and Hađi v. Croatia, no. 42998/08, § 47, 1 July 2010). Thus,
it fell short of its obligation under Article 5 § 4 of the Convention to review
the lawfulness of the applicant’s detention. There has accordingly been a
violation of that provision.
IV. ALLEGED VIOLATION
CONVENTION
OF
ARTICLE
6
§
2
OF
THE
136. The applicant further complained that the domestic courts had
violated the presumption of innocence. He relied on Article 6 § 2 of the
Convention which reads:
“2. Everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law.”
A. Admissibility
137. The Court notes that this complaint 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.
26
PERICA OREB v. CROATIA JUDGMENT
B. Merits
1. The parties’ arguments
138. The applicant argued that the domestic courts had violated the
presumption of innocence because in their decisions ordering and extending
his detention they had repeatedly stated that the defendants had engaged in
trafficking in illegal drugs, showing persistence and resolve in committing
the criminal offence in question. Furthermore, the national courts had
repeatedly stated that there was a risk of reoffending because he had already
been convicted of the same offences. However, there was no final
conviction against him. They had also considered the fact that two other sets
of criminal proceedings were pending against him as a relevant factor in
assessing the risk of his reoffending, thus implying that he was guilty of the
offences that were the subject of those two sets of proceedings.
139. The Government argued that the national courts had treated the
allegations held against the applicant as a reasonable suspicion and not as
established facts. They further contended that the accused’s previous
convictions could only be taken into account as an element for assessing a
sentence and not when assessing the reasons for his or her detention.
2. The Court’s assessment
140. The Court reiterates that the presumption of innocence under
Article 6 §2 will be violated if a judicial decision or, indeed, a statement by
a public official concerning a person charged with a criminal offence
reflects an opinion that he is guilty before his guilt has been proved
according to law. It suffices, in the absence of a formal finding, that there is
some reasoning suggesting that the court or the official in question regards
the accused as guilty, while a premature expression by the tribunal itself of
such an opinion will inevitably run foul of the said presumption (see, among
other authorities, Deweer v. Belgium, 27 February 1980, § 56, Series A
no. 35; Minelli v. Switzerland, 25 March 1983, §§ 27, 30 and 37, Series A
no. 62; Allenet de Ribemont v. France, 10 February 1995, §§ 35-36,
Series A no. 308; and Karakaş and Yeşilırmak v. Turkey, no. 43925/985,
§ 49, 28 June 2005; and Allen v. the United Kingdom [GC], no. 25424/09
[GC], § 93, 12 July 2013).
141. Article 6 § 2 governs criminal proceedings in their entirety,
“irrespective of the outcome of the prosecution” (see Minelli v. Switzerland,
cited above, § 30). However, once an accused is found guilty, in principle, it
ceases to apply in respect of any allegations made within the subsequent
sentencing procedure (see Engel and Others v. the Netherlands, 8 June
1976, Series A no. 22, and Matijašević v. Serbia, no. 23037/04,
19 September 2006).
PERICA OREB v. CROATIA JUDGMENT
27
142. As to the present case, the Court notes that the domestic courts
justified the applicant’s pre-trial detention by, inter alia, the gravity of the
offences and the manner in which they were committed. They did not,
however, treat those circumstances as established facts but only as
allegations.
143. In the wording of their decisions the domestic courts relied on the
bill of indictment, stating that there was a justified suspicion that the
applicant had committed the offences in question. Thus they solely relied on
the charges brought against him. In that respect the wording of their
decisions did not amount to finding the applicant guilty of the charges
brought against him in violation of the presumption of innocence under
Article 6 § 2 of the Convention.
144. However, as regards the repeated statements of the national courts
that there was a risk that the applicant might reoffend since he had already
been convicted of similar offences, the Court notes that throughout the
criminal proceedings against the applicant, his pre-trial detention was
extended, inter alia, on the ground that he had already been convicted of
similar offences. In some of their decisions the national courts did not refer
to any specific final judgment finding the applicant guilty or to any specific
criminal proceedings against him. In other decisions, in assessing whether
there was a risk that the applicant would reoffend, they relied on the fact
that parallel criminal proceedings were pending before the Čakovec County
Court and the Dubrovnik County Court and subsequently on his conviction
by the latter which had not become final. From the context of the decisions
at issue, it could be inferred that the national courts, even when not
mentioning any other criminal proceedings, actually had in mind the two
parallel sets of criminal proceedings, namely, those before the Čakovec
County Court and the Dubrovnik County Court.
145. The Court considers that Article 6 § 2 of the Convention by no
means prevented the competent authorities from referring to the applicant’s
existing conviction when the matter of his guilt had not been finally
determined. Nonetheless, any reference to a conviction that has not yet
become final should be made with all the discretion and restraint which
respect for the presumption of innocence demands (see, mutatis mutandis,
Konstas v. Greece, no. 53466/07, § 34, 24 May 2011).
146. The Court also reiterates that the Convention must be interpreted in
such a way as to guarantee rights which are practical and effective as
opposed to theoretical and illusory (see, for example, Artico v. Italy, 13 May
1980, § 33, Series A no. 37, and Capeau v. Belgium, no. 42914/98, § 21,
ECHR 2005-I). Accordingly, and in the light of the foregoing, it considers
that the presumption of innocence cannot cease to apply while the appeal
proceedings are still pending simply because the accused was convicted at
first instance. To conclude otherwise would contradict the role of appeal
proceedings, where the appellate court is required to re-examine the earlier
28
PERICA OREB v. CROATIA JUDGMENT
decision submitted to it as to the facts and the law (see Konstas v. Greece,
cited above, § 36).
147. The Court considers, in this connection, that only a formal finding
of a previous crime, that is, a final conviction, may be taken as a reason for
ordering pre-trial detention on the ground that someone has previously been
convicted. To consider the mere fact that there are other, separate and still
pending, criminal proceedings against the person concerned as a conviction
would unavoidably imply that he or she was guilty of the offences that were
the subject of those proceedings. This is exactly what happened in the
present case where the national courts repeatedly stated that the applicant
had already been convicted of similar offences even though his criminal
record clearly indicated that he had not been convicted of any offences.
Furthermore, they also considered the fact that parallel criminal proceedings
were pending against him as a relevant factor in assessing the risk of his
reoffending and considered that that fact showed a lack of conformity of his
lifestyle with the laws, thus implying that he was guilty of the offences that
were the subject of those proceedings. They thus repeatedly breached the
applicant’s right to be presumed innocent in the said separate proceedings
pending concurrently (see, by way of comparison, Hajnal v. Serbia,
no. 36937/06, § 131, 19 June 2012).
148. There has accordingly been a violation of Article 6 § 2 of the
Convention.
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
149. The applicant further complained that he had been discriminated
against contrary to Article 14 of the Convention.
150. 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.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
151. 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.”
PERICA OREB v. CROATIA JUDGMENT
29
A. Damage
152. The applicant claimed 4,000 euros (EUR) in respect of nonpecuniary damage.
153. The Government deemed the claim unfounded and excessive.
154. The Court accepts that the applicant must have suffered some nonpecuniary damage in connection with a violation of his right to be presumed
innocent and with the excessive length of his pre-trial detention and the
failure of the Constitutional Court to examine his complaints on the merits.
In view of the circumstances of the present case and ruling on an equitable
basis the Court awards the applicant EUR 4,000 in respect of non-pecuniary
damage.
B. Costs and expenses
155. The applicant also claimed EUR 1,215 in connection with lodging
his appeals before the national courts and his constitutional complaints.
156. The Government contested the claim.
157. According to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, the Court notes that the applicant’s appeals
and constitutional complaint lodged in connection with the decisions
ordering and extending his pre-trial detention were aimed at remedying the
violation the Court has found under Article 5 § 3 of the Convention. Regard
being had to the information in its possession and the above criteria, the
Court considers that the sum claimed for costs and expenses in the domestic
proceedings should be awarded in full, plus any tax that may be chargeable
to the applicant on that amount.
C. Default interest
158. The Court considers it appropriate that the default interest should
be based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under Article 5 § 3 of the Convention concerning
the length of and the reasons for the applicant’s pre-trial detention; the
complaint under Article 5 § 4 of the Convention about the failure of the
Constitutional Court to decide the applicant’s constitutional complaints
30
PERICA OREB v. CROATIA JUDGMENT
on the merits; and the complaint under Article 6 § 2 of the Convention
admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 3 of the Convention;
3. Holds that there has been a violation of Article 5 § 4 of the Convention;
4. Holds that there has been a violation of Article 6 § 2 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three months
of the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, which are to be
converted into Croatian kuna at the rate applicable on the date of
settlement:
(i) EUR 4,000 (four thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,215 (one thousand two hundred and fifteen euros), plus
any tax that may be chargeable to the applicant, in respect of costs
and expenses;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points.
Done in English, and notified in writing on 31 October 2013, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen
Registrar
Isabelle Berro-Lefèvre
President