FIRST SECTION
CASE OF ORBAN v. CROATIA
(Application no. 56111/12)
JUDGMENT
STRASBOURG
19 December 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.
ORBAN v. CROATIA JUDGMENT
1
In the case of Orban v. Croatia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 26 November 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 56111/12) 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 Igor Orban (“the applicant”),
on 8 August 2012.
2. The applicant was represented by Ms V. Mišin, a lawyer practising in
Vinkovci. The Croatian Government (“the Government”) were represented
by their Agent, Ms Š. Stažnik.
3. The applicant alleged, in particular, that the domestic authorities had
failed to provide relevant and sufficient reasons for his continued pre-trial
detention and had failed to display diligence in the conduct of the
proceedings.
4. On 30 October 2012 the application was communicated to the
Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1969 and lives in Osijek.
6. On 21 March 2011 an investigating judge from the Vukovar County
Court (Županijski sud u Vukovaru) opened an investigation in respect of the
applicant, four other persons, T.O., O.K., T.K. and N.Š., and two
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ORBAN v. CROATIA JUDGMENT
companies, K. and O., in connection with suspected abuse of power and
authority, fraud, false accounting and business misfeasance.
7. On the same day the investigating judge ordered the applicant’s
detention on the grounds of the risk that he might tamper with evidence and
of the gravity of the charges (Article 102 §§ 1(2) and (4) of the Code of
Criminal Procedure). The judge held that it was necessary to question
several witnesses who could be influenced by the applicant and the other
defendants, and that the pecuniary gain allegedly obtained suggested that
the circumstances of the offences were particularly serious.
8. On 22 March 2011 the applicant was arrested and remanded in
custody.
9. The applicant lodged an appeal against the above decision with the
Vukovar County Court. On 31 March 2011 a three-judge panel of the court
dismissed the appeal as ill-founded.
10. In the period between 22 March and 4 April 2011 the investigating
judge questioned the defendants and heard evidence from eight witnesses.
11. On 21 April 2011 the investigating judge extended the applicant’s
detention on the ground of the gravity of the charges (Article 102 § 1(4) of
the Code of Criminal Procedure), reiterating his previous arguments.
12. An appeal lodged by the applicant was dismissed by a three-judge
panel of the Vukovar County Court on 28 April 2011.
13. In May 2011 the investigating judge heard evidence from three
witnesses and additionally questioned defendants T.K. and N.Š.
14. On 20 June 2011 the investigating judge again extended the
applicant’s detention on the ground of the gravity of the charges (Article
102 § 1(4) of the Code of Criminal Procedure).
15. The applicant appealed and on 30 June 2011 a three-judge panel of
the Vukovar County Court dismissed his appeal as ill-founded.
16. In July 2011 the investigating judge again questioned defendants
T.O. and O.K., and in September 2011 commissioned an auditor’s report.
17. On 19 September 2011 the Vukovar County State Attorney’s Office
(Županijsko državno odvjetništvo u Vukovaru) indicted the applicant in the
Vukovar County Court on charges of abuse of power and authority.
18. On 21 September 2011 a three-judge panel of the Vukovar County
Court extended the applicant’s detention on the ground of the gravity of the
charges (Article 102 § 1(4) of the Code of Criminal Procedure). The
relevant part of the decision reads:
"As regards the second accused, Igor Orban, his detention was extended under
[Article 102 § 1(4) of the Code of Criminal Procedure] since he was working with the
first accused. He was authorised to sign contracts, which he did by signing a contract
on cooperation with company Ž., from Osijek, on 25 February and 31 July 2008.
Furthermore, the second accused transported the goods he received to company K.
without any accompanying documentation, which resulted in a financial loss to
company Ž. of 6,258,895.02 kunas. In view of the extent of the damage, [this panel]
ORBAN v. CROATIA JUDGMENT
3
finds that the detention should be extended under Article 102 § 1(4) of the Code of
Criminal Procedure."
19. The applicant lodged an appeal against the above decision with the
Supreme Court (Vrhovni sud Republike Hrvatske), complaining that there
had been no reason to extend his detention.
20. On 12 October 2011 the Supreme Court dismissed the applicant’s
appeal as ill-founded, noting the following:
"The manner in which the offences of which the accused [T.O., Igor Orban and
O.K.] are suspected were committed, as well as the period at issue, suggest a
particularly high level of organisation, and the pecuniary gain (36,606,101.28 kunas
and 6,258,895.02 kunas) ... significantly surpasses the elements that constitute the
offences under Article 337 § 4 of the Criminal Code ... and also shows that the
circumstances of the offence were particularly serious."
21. On 7 December 2011 the applicant requested the Vukovar County
Court to be released from detention but his request was denied. He lodged
an appeal against that decision, which was dismissed by the Supreme Court
on 4 January 2012.
22. On 13 December 2012 a three-judge panel of the Vukovar County
Court extended the applicant’s detention on the ground of the gravity of the
charges (Article 102 § 1(4) of the Code of Criminal Procedure), reiterating
its previous arguments.
23. The applicant appealed against the above decision and on 4 January
2012 the Supreme Court dismissed his appeal as ill-founded.
24. In the period between 19 January and 3 February 2012 two hearings
were adjourned as a result of the health problems of one of the accused,
N.Š., and one of the companies’ representatives.
25. At a hearing on 2 March 2012 before the Vukovar County Court the
applicant pleaded not guilty. He argued that from the very beginning of the
proceedings his detention had been constantly extended on the same
grounds, which was contrary to the Court’s case-law. He therefore requested
to be released.
26. The trial panel of the Vukovar County Court dismissed the
applicant’s request for release and adjourned the hearing until 29 March
2012.
27. At a hearing on 29 March 2012 the Vukovar County Court heard
evidence from fourteen witnesses.
28. A further hearing was held on 11 April 2012 when the Vukovar
County Court questioned two witnesses. The applicant again requested to be
released, arguing that the evidence adduced during the trial suggested that
the alleged pecuniary gain remained unclear, which meant that the only
reason adduced for his detention throughout the proceedings no longer
existed.
29. The trial panel of the Vukovar County Court dismissed the
applicant’s request for release and adjourned the hearing.
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ORBAN v. CROATIA JUDGMENT
30. Two hearings scheduled for 27 April and 31 May 2012 were
adjourned because the accused, N.Š., had had a heart attack.
31. In the meantime, on 22 May 2012, a three-judge panel of the
Vukovar County Court extended the applicant’s detention on the ground of
the gravity of the charges (Article 102 § 1(4) of the Code of Criminal
Procedure). The relevant part of the decision reads:
“The manner in which the offences of which the accused are suspected were
committed, as well as the period at issue, suggest a particularly high level of
organisation. In addition, the pecuniary gain (36,606,101.28 kunas and
6,258,895.02 kunas) ... significantly surpasses the elements that constitute the
offences under Article 337 § 4 in conjunction with §§ 1 and 3 of the Criminal Code ...
and also show that the circumstances of the offence were particularly serious, which
justifies detention under Article 102 § 2(4) of the Code of Criminal Procedure. ”
32. The applicant lodged an appeal with the Supreme Court against the
Vukovar County Court’s decision. On 13 June 2012 the Supreme Court
dismissed his appeal, endorsing the reasoning of the first-instance court. It
also held that the Vukovar County Court had conducted the proceedings
with the necessary diligence.
33. A further hearing scheduled for 26 June 2012 was postponed
because the accused, N.Š., was unable to attend.
34. On 16 July 2012 the applicant lodged a constitutional complaint with
the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that his
pre-trial detention was excessive and was not based on relevant and
sufficient reasons.
35. On 18 July 2012 the Constitutional Court dismissed the applicant’s
complaint on the grounds that the lower courts had given sufficient reasons
justifying the applicant’s continued detention and that the Vukovar County
Court had displayed the required diligence in conducting the proceedings.
36. On 28 August 2012 a three-judge panel of the Vukovar County
Court extended the applicant’s detention on the ground of the gravity of the
charges (Article 102 § 1(4) of the Code of Criminal Procedure).
37. The Vukovar County Court held two hearings on 4 September and
17 October 2012 in which it heard evidence from five witnesses and
examined an auditor’s report.
38. At a hearing on 9 November 2012 the applicant requested to be
released.
39. On the same day, the trial panel of the Vukovar County Court
released the applicant from detention. It held that his detention was no
longer proportionate to the sentence which he risked incurring and that any
further detention could effectively mean that he was serving a prison
sentence without a final judgment.
40. The criminal proceedings against the applicant are still pending.
ORBAN v. CROATIA JUDGMENT
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II. RELEVANT DOMESTIC LAW
1. The Constitution
41. 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)
provide:
Article 22
“Personal freedom and integrity are inviolable.
No one shall be deprived of his liberty save in accordance with the law, which must
be examined by a court."
2. The Criminal Code
42. The relevant provisions of the Criminal Code (Kazneni zakon,
Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001,
111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008)
provide:
Abuse of power and authority
Article 337
“(1) An official or responsible person who, in order to acquire for himself or
another physical or legal person any non-pecuniary gain, or who, in order to cause
damage to another, uses his position of power, oversteps his authority or fails in his
duty, shall be punished by a term of imprisonment of three months to three years.
(2) If the criminal offence referred to in paragraph 1 of this Article causes
significant damage to others or a serious breach of their rights, the perpetrator shall be
punished by a term of imprisonment of six months to five years.
(3) If a pecuniary gain is acquired as a result of the criminal offence referred to in
paragraph 1 of this Article, the perpetrator shall be punished by a term of
imprisonment of one to five years.
(4) If a considerable pecuniary gain is acquired as a result of the criminal offence
referred to in paragraph 1 of this Article and the perpetrator acted with intent to
acquire such gain, or if [the offence] resulted in large-scale damage, he or she shall be
punished by a term of imprisonment of one to ten years."
3. Code of Criminal Procedure
43. 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 115/2006) provide as follows:
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ORBAN v. CROATIA JUDGMENT
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 the application of one or more
preventive measures ...
(2) The preventive measures are:
1) prohibition on leaving one’s place of residence;
2) prohibition on being in a certain place or area;
3) obligation on the defendant to report periodically to a certain person or a State
body;
4) prohibition on contact with a certain person or on establishing or maintaining
contact with a certain person;
5) prohibition on undertaking a certain business activity;
6) temporary seizure of a passport or other document necessary for crossing the
State border;
7) temporary seizure of a driving licence ...”
8. General Provisions on Detention
Article 101
“(1) Detention may be imposed only if the same purpose cannot be achieved by
another [preventive] measure.
(2) The detention measure shall be lifted and the detainee released as soon as the
grounds for detention cease to exist.
(3) When deciding on detention, in particular its duration, a court shall take into
consideration the proportionality between the gravity of the offence, the sentence
which ... may be expected, and the need to order and determine the duration of the
detention.
(4) The judicial authorities conducting the criminal proceedings shall proceed with
particular urgency when the defendant is being held in detention and shall review as a
matter of course whether the grounds and legal conditions for detention have ceased
to exist, in which case the custodial measure shall immediately be lifted.”
9. Grounds for Ordering Detention
Section 102
“(1) Where a reasonable suspicion exists that a person has committed an offence,
that person may be placed in detention if:
1. there are circumstances which show that there is a risk that [the defendant] will
abscond [is in hiding or his or her identity cannot be established, and so on);
ORBAN v. CROATIA JUDGMENT
7
2. there is a risk that he or she might destroy, hide, alter or forge evidence or traces
relevant for the criminal proceedings or might suborn witnesses, or where there is a
risk of collusion;
3. special circumstances justify the suspicion that the person concerned might
reoffend;
4. 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 if detention is justified by the modus operandi or other
particularly serious circumstances of the offence.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
44. The applicant complained that the domestic authorities had failed to
provide relevant and sufficient reasons for his pre-trial detention from
22 March 2011 to 9 November 2012 and had failed to display necessary
diligence in the conduct of the proceedings. He relied on Article 5 § 3 of the
Convention, 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
45. 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.
B. Merits
1. The parties’ arguments
46. The applicant submitted that the length of his pre-trial detention had
been excessive and had not been based on relevant and sufficient reasons.
His pre-trial detention had been based only on the seriousness of the charges
associated with the alleged pecuniary gain acquired as a result of the
offences at issue. However, in the applicant’s view, the whole criminal
prosecution had been dubious and the alleged pecuniary gain had never
been clearly established. At the same time his detention had been extended
using identical reasoning and referring to the pecuniary gain allegedly
obtained. Furthermore, he considered that the domestic courts had failed to
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ORBAN v. CROATIA JUDGMENT
take the procedural measures necessary to assess the reasonableness of his
pre-trial detention given the inability of one of the co-accused to participate
in the proceedings owing to his illness. Such a lack of diligence resulted in
his being detained while no progress was being made in the proceedings.
47. The Government pointed out that the applicant’s pre-trial detention
had initially been ordered on the grounds of the risk that he might tamper
with the evidence and the gravity of the charges. Subsequently, it had been
extended several times on the ground of the gravity of the charges.
However, the Government considered that there had been relevant and
sufficient reasons to remand the applicant in custody on both grounds. As to
the risk that he might tamper with evidence, the investigating judge had
assessed that the witnesses who were well known to the applicant could not
be questioned unless he was prevented from contacting them. Such findings
had been sufficiently reasoned and upheld by a three-judge appeal panel. As
to the seriousness of the charges, the Government stressed that the Court, as
well as the Constitutional Court, had held that an accused could be detained
on grounds of the seriousness of the charges when public order had been
threatened by the offences at issue. In the present case, the applicant was
suspected of offences that had caused significant damage to the country’s
economic interests and had thus created a high level of public interest and
concern. The Government also considered that the domestic courts had
demonstrated necessary diligence in the conduct of the proceedings and that
throughout the period of the applicant’s detention all his arguments had
been duly taken into account and assessed on several levels of national
jurisdiction.
2. The Court’s assessment
(a) General principles
48. The Court reiterates that under its constant case-law, the issue of
whether a period of detention is reasonable cannot be assessed in abstracto.
Whether it is reasonable for an accused to remain in detention must be
assessed in each case. Continued detention can be justified only if there are
specific indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of respect
for individual liberty (see, among other authorities, W. v. Switzerland,
26 January 1993, Series A no. 254-A, and Kudła v. Poland [GC],
no. 30210/96, § 110, ECHR 2000-XI).
49. The presumption is in favour of release. As the Court has
consistently held, the second limb of Article 5 § 3 does not give judicial
authorities a choice between either bringing an accused to trial within a
reasonable time or granting him provisional release pending trial. Until his
conviction, the accused must be presumed innocent, and the purpose of the
provision under consideration is essentially to require him to be released
ORBAN v. CROATIA JUDGMENT
9
provisionally once his continuing detention ceases to be reasonable (see
Vlasov v. Russia, no. 78146/01, § 104, 12 June 2008, with further
references).
50. It falls in the first place to the national judicial authorities to ensure
that in a given case the pre-trial detention of an accused person does not
exceed a reasonable time. To this end, they must examine all the evidence
for or against the existence of a genuine requirement of public interest
justifying, with due regard to the principle of the presumption of innocence,
a departure from the rule of respect for individual liberty, and must set them
out in their decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and the facts cited by the
applicant in his appeals that the Court is called upon to decide whether or
not there has been a violation of Article 5 § 3 of the Convention (see Labita
v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV).
51. 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).
52. The persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the lawfulness of the
continued detention, but after a certain lapse of time it no longer suffices. In
such cases, the Court must establish whether the other grounds given by the
judicial authorities continued to justify the deprivation of liberty. Where
such grounds were “relevant” and “sufficient”, the Court must also ascertain
whether the competent national authorities displayed “special diligence” in
the conduct of the proceedings (see Contrada v. Italy, 24 August 1998, § 54,
Reports of Judgments and Decisions 1998-V; I.A. v. France, 23 September
1998, § 102, Reports 1998-VII; Toth v. Austria, 12 December 1991, § 67,
Series A no. 224; and B. v. Austria, 28 March 1990, § 42, Series A no. 175).
(b) Application of these principles to the present case
53. As to the period to be taken into account in the present case, the
Court reiterates that according to its well-established case-law, in
determining the length of detention under Article 5 § 3 of the Convention,
the period to be taken into consideration begins on the day the accused is
taken into custody and ends on the day when he is released (see, for
example, Fešar v. the Czech Republic, no. 76576/01, § 44, 13 November
2008) 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).
54. It follows that the period of the applicant’s detention to be taken into
consideration began on 22 March 2011, the date when the applicant was
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ORBAN v. CROATIA JUDGMENT
taken into custody, and ended on 9 November 2012 when the applicant was
released, which in total amounts to one year seven months and eighteen
days.
55. The Court accepts that the applicant’s pre-trial detention initially
ordered on 21 March 2011 on the grounds of the risk that he might tamper
with evidence by influencing the witnesses and because of the gravity of the
charges might have been warranted by the reasons adduced by the domestic
authorities.
56. However, the Court notes that after a month, on 21 April 2011, once
the investigating judge questioned the witnesses, the applicant’s detention
was extended solely on the ground of the gravity of the charges (see
paragraph 11 above). Subsequently, over a period of more than one and a
half years until the applicant’s release on 9 November 2012, his detention
was extended several times only on that ground (compare Peša v. Croatia,
no. 40523/08, § 105, 8 April 2010).
57. The Court reiterates that it has repeatedly held that the gravity of the
charges cannot by itself serve to justify long periods of detention (see,
among many other authorities, Ilijkov, cited above, §§ 80-81; Michta v.
Poland, no. 13425/02, § 49, 4 May 2006; Gultyayeva v. Russia,
no. 67413/01, § 186, 1 April 2010; and Trifković v. Croatia, no. 36653/09,
§ 129, 6 November 2012).
58. While the Court accepts that the charges of abuse of power and
authority were serious and that they had allegedly resulted in considerable
pecuniary gain and criminal intent, it notes that the explanations given by
the national courts in this connection, over a period of more than one and a
half years, went no further. None of the elements adduced by the national
courts were capable of showing that the applicant continued to pose a
danger or that his release would in any manner harm the conduct of the
criminal proceedings against him (see Peša, cited above, § 106).
59. The Court also observes that when extending the applicant’s
detention during this period the domestic authorities relied not only on the
same reasons but at some instances they used almost identical wording in
their decisions (see paragraphs 20 and 31 above). In this connection, 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 used
stereotyped formulae without addressing the specific facts warranting
continued detention (see, for example, Sulaoja v. Estonia, no. 55939/00,
§ 64, 15 February 2005; Tsarenko v. Russia, no. 5235/09, § 70, 3 March
2011, and the cases cited therein, and Trifković, cited above, § 125).
60. Furthermore, the Court notes that the Government failed to provide
evidence that consideration had been given at any stage of the proceedings
to the possibility of imposing alternative, less severe preventive measures
on the applicant (see Idalov v. Russia [GC], no. 5826/03, § 148, 22 May
2012, and Peša, cited above, § 107) which could have allowed his
ORBAN v. CROATIA JUDGMENT
11
provisional release once his continuing detention ceased to be reasonable, as
required under Article 5 § 3 (see Vlasov, cited above, § 104, 12 June 2008,
and Aleksandr Makarov v. Russia, no. 15217/07, § 117, 12 March 2009).
61. Lastly, regarding the Government’s reference to the protection of
public order as a ground for the applicant’s detention, the Court notes that
the national courts gave no consideration to such a ground in their decisions.
They did not explain why it was necessary to remand the applicant in
custody in order to prevent public disquiet, and did not examine whether the
applicant posed a danger to public safety (compare Peša, cited above,
§ 103). The Court reiterates that it is not its task to take the place of the
national authorities which ruled on the applicant’s detention. It falls on them
to examine all the facts arguing for or against detention and set them out in
their decisions. Accordingly, the Government’s reasons raised for the first
time in the proceedings before the Court, cannot be taken into account (see,
amongst many others, Valeriy Kovalenko v. Russia, no. 41716/08, § 49,
29 May 2012).
62. Against the above background, the Court finds that by relying solely
on the gravity of the charges when extending the applicant’s detention in the
period between 21 April 2011 and 9 November 2012, the domestic
authorities prolonged the applicant’s detention on reasons which cannot be
regarded as sufficient (compare Csáky v. Hungary, no. 32768/03, § 36,
28 March 2006; and Peša, cited above, § 108). In those circumstances, it is
not necessary to examine whether the proceedings were conducted with
“special diligence” (see Peša, cited above, § 108; and compare Szepesi
v. Hungary, no. 7983/06, § 27, 21 December 2010, and Dervishi v. Croatia,
no. 67341/10, § 138, 25 September 2012).
63. There has accordingly been a violation of Article 5 § 3 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
64. The applicant complained, under Article 6 § 2 of the Convention,
that in their reasoning of the decisions on his detention, the domestic courts
had violated his presumption of innocence.
65. 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.
66. The applicant also complained, under Article 6 §§ 1 and 3 (b) of the
Convention, that the criminal proceedings against him had been unfair.
67. The Court notes that the criminal proceedings against the applicant
are still pending.
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ORBAN v. CROATIA JUDGMENT
68. It follows that any complaint in this respect is premature and must be
rejected under Article 35 §§ 1 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
69. 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
70. The applicant claimed 8,000 euros (EUR) in respect of pecuniary
damage on account of lost income during his pre-trial detention.
71. The Government considered the applicant’s claim excessive,
unfounded and unsubstantiated.
72. The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this claim. The
Court also notes that the applicant did not request non-pecuniary damages.
B. Costs and expenses
73. The applicant also claimed EUR 3,000 for the costs and expenses
incurred before the domestic courts and the Court.
74. The Government considered the applicant’s claim unfounded and
unsubstantiated.
75. 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. In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable to award
the sum of EUR 3,000, covering costs under all heads.
C. Default interest
76. 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.
ORBAN v. CROATIA JUDGMENT
13
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning the excessive length of the
applicant’s pre-trial detention, under Article 5 § 3 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
(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 3,000 (three thousand euros),
plus any tax that may be chargeable to the applicant, in respect of costs
and expenses, to be converted into Croatian kunas (HRK), 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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 December 2013, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach
Deputy Registrar
Isabelle Berro-Lefèvre
President