FIRST SECTION

CASE OF LISICA v. CROATIA

(Application no. 20100/06)

JUDGMENT

STRASBOURG 

25 February 2010

FINAL

25/05/2010

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Lisica v. Croatia,

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

Anatoly Kovler, President,
Nina Vajić,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 4 February 2010,

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

PROCEDURE

1. The case originated in an application (no. 20100/06) 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 two Croatian nationals, Mr Zlatko Lisica and Mrs Meri Lisica (“the applicants”), on 15 April 2006.

2. The applicants were represented by Mr A. Korljan, a lawyer practising in Zadar. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

3. On 3 September 2008 the President of the First Section decided to communicate the complaint under Article 6 § 1 of the Convention concerning the applicants' right to a fair trial to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were both born in 1978 and live in Zadar.

1. Background to the case

5. On 24 May 2000 at about 8.00 a.m., on a road in Zadar, three persons, dressed in black and wearing black masks, used a VW Golf II vehicle to block a vehicle belonging to a bank in Zadar which was carrying money. The perpetrators, who were armed, forced the driver of the bank vehicle to abandon it, took the money and drove away from the scene in the bank's vehicle. After they had reached the nearby coast, they abandoned the vehicle and continued in a motorboat in the direction of the small coastal village of Bibinje. They abandoned the motorboat a couple of metres from the shore of Bibinje.

6. Meanwhile, the police had been alerted and a police vehicle on its way to the Bibinje marina passed a black BMW vehicle driven by the second applicant, driving from the seashore in the direction of the centre of Bibinje. The registration number of the vehicle was noted by the police. Later on it turned out that the vehicle belonged to the first applicant. The police found the abandoned boat floating along the shore.

7. Soon afterwards the police stopped the first and the second applicants, who were riding a motorbike. It was noted by the police that the motorbike seat was wet.

2. Investigation

8. On 24 May 2000 at 8.55 a.m. both applicants were arrested by the police and taken to the Zadar Police Department. At 3 p.m. on the same day the applicants were brought before an investigating judge of the Zadar County Court who immediately ordered their further detention for twenty-four hours.

9. The applicants' defence counsel lodged an appeal complaining that the applicants' detention had been illegal since under the relevant domestic law initial detention could not exceed twenty-four hours. They argued that the applicants had been detained from 8.55 a.m. on 24 May 2000 and their detention had been ordered until 3 p.m. on 25 May 2000, and had therefore exceeded twenty-four hours.

10. During the preliminary investigation by the police a VW Golf II vehicle, stolen from its owner at the time of the robbery in question and subsequently found by the police, was searched by the police without the presence of the applicants or their representatives. The search was carried out on 24 May 2000 from 8.15 a.m. to 11.30 a.m. and the written record of the search established that the plastic mould of one of the locks was missing. Samples of traces were taken and sent for examination.

11. A BMW vehicle belonging to the first applicant was seized as evidence on 24 May 2000 and kept by the police. On the same day the vehicle was searched by police officers K.B., T.J. and T.Z. on the basis of a search warrant issued by the investigating judge in the presence of the applicants' defence counsel. The official record of the search shows that it lasted from 4.10 p.m. to 7 p.m. A number of photographs of the inside of the vehicle were taken but they were not included in the case file. Several items of evidence were found and collected for further examination, including a wet towel, a car carpet, a black sweater, samples from the back seat cover and the cover of the front passenger seat, traces of earth and of all four tyres. The vehicle was taken to the car park of the Zadar Police Department and kept there. The keys of the vehicle were left in the possession of the police.

12. On 26 May 2000 police officers of the Zadar Police Department, where the vehicle was being kept, entered it without a search warrant and without the knowledge of the applicants or their defence counsel and collected material evidence (see below §§ 17, 19, 26 and 27).

13. On 26 May 2000 the Zadar County Court dismissed the applicants' appeal against their detention on the grounds that, although the applicants had been taken by police officers to the premises of the Zadar Police Department on 24 May 2000 at 9 a.m., a decision on their arrest had been served on them at 3 p.m. and that therefore the statutory time-limit of twenty-four hours was to be counted from that time.

14. A criminal investigation was opened against the applicants on 26 May 2000 on suspicion that they had committed a bank robbery. Further pre-trial detention of both applicants was ordered and they remained in detention until 14 February 2001.

15. On 26 May 2000 an investigating judge of the Zadar County Court heard the applicants, who denied having committed the bank robbery in question and otherwise remained silent.

16. On 27 May 2000 another search of both vehicles was carried out. The search of the VW Golf II vehicle was carried out from 5.20 p.m. to 7.15 p.m., again without the presence of the applicants or their counsel. The door of the vehicle from which the plastic mould was missing was collected for further examination. The search of the BMW vehicle was carried out on the basis of a search warrant issued by the investigating judge and in the presence of the applicants' defence counsel. The record of the search indicates, inter alia, that an item, a plastic mould of a car lock was found on that occasion lying in the inside of the vehicle.

17. On 28 May 2000 the applicants' counsel reported to the investigating judge that during the search carried out on 27 May 2000 they had learned in an informal conversation with a police technician that the vehicle had been entered the day before, namely on 26 May 2000. They also alleged that after the search of 27 May 2000 had been carried out, the defence counsel had gone for a drink at the same bar as the policemen and the counsel overheard one of the policemen, officer Z.B., confirming that he had entered the vehicle the day before.

18. On 1 June 2000 police officer T.J. was also arrested on suspicion of having taken part in the planning of the robbery.

19. On 5 June 2000 the applicants' counsel lodged an objection with the investigating judge questioning the authenticity of the results of the search of the first applicant's vehicle of 27 May 2000. On 6 June 2000 the investigating judge submitted a report to the president of the Zadar County Court stating that he would take the allegations of the applicants' counsel into account. On the same day officer Z.B. made a report to the Zadar Police Department stating that on 26 May 2000 he had entered the BMW vehicle, owned by the first applicant, in order to collect a sample of the seat cover. After entering the vehicle he had used scissors to cut a sample of the back-seat cover measuring 5 by 5 centimetres. He had then exited the vehicle and locked it. On 27 May at about 1 p.m. he had been ordered to deposit the key of the vehicle, placed in a yellow envelope, at the police station, which he had done. In a separate report of the same day, submitted to the Zadar Police Department, a forensic expert, I.R., stated that on 26 May 2000 at about 2.30 p.m. he had attempted to open the door of the BMW vehicle in order to collect a sample of the seat cover for further examination. Since he could not open the door, he had informed the police workshop about it. Around 3 p.m. a mechanic, A.Š., had arrived and succeeded in opening the door next to the driver's seat. I.R. had then asked officer Z.B. to join him, telling him that A.Š. had succeeded in opening the vehicle and asking him to bring scissors. They had then approached the vehicle together and officer Z.B. had entered it and cut a piece of the back-seat cover measuring 5 by 5 centimetres. He had then exited and locked the vehicle.

20. Between 6 and 19 July 2000 the investigating judge heard evidence from twenty-five witnesses, including three witnesses called on behalf of the defence.

21. On 7 June 2000 the investigation against the applicants and two other suspects was extended to the criminal offence of theft of the VW Golf II vehicle, used for the bank robbery.

22. A report on the tests carried out by a Ministry of the Interior Centre for Forensic Expertise, drawn up on 10 June 2000, concluded that the plastic mould of the car lock found in the first applicant's vehicle on 27 May 2000 belonged to a vehicle type VW Golf II.

23. In an appeal of 19 July 2000 against a decision extending his detention, one of the defendants objected, inter alia, to the illegal search of the first applicant's vehicle.

24. A report drawn up on 20 July 2000 by E.R., the Chief of the Zadar Police Department, Division of Forensic Police, and submitted to the Zadar County State Attorney's Office, stated that the keys of the first applicant's vehicle had been kept in a metal safe at that Division from 24 to 27 May 2000.

3. Criminal trial against the applicants

25. On 12 September 2000 the Zadar State Attorney's Office lodged a bill of indictment against the applicants and four other persons, including T.J., one of the officers who carried out the search of the first applicant's vehicle on 24 May 2000, in the Zadar County Court, charging them, inter alia, with bank robbery and theft of the VW Golf II vehicle. The indictment did not rely in any manner on the item of evidence found in the first applicant's vehicle during the search of 27 May 2000, namely, the plastic mould of the car lock.

26. At a hearing held on 2 November 2000 one of the defence counsel objected that the entry and further search of the first applicant's vehicle on 26 May 2000 had been illegal and that therefore the results of the further search carried out on 27 May 2000 had also been illegal. The court then decided to hear evidence from the police officers and other police employees involved.

27. A.Š., a mechanic, stated that he was employed in the Zadar Police Department and that one day his superior had told him to help officers open a BMW vehicle which had been parked in the police station car park, since there were some problems with the lock. He had managed to open the vehicle. He had seen officer I.N. standing next to the vehicle as well as some other persons. He had not seen what the officers had done in the vehicle because after opening the vehicle, he had left the scene. In answer to a specific question, he stated that the key had not been taken out of a yellow envelope.

28. Officer Z.B. stated that he had entered the BMW vehicle because he had been ordered by his superior, I.N., to collect a sample of seat cover from the vehicle. He had obtained the key from I.R. who had also told him how to open the vehicle. He had understood that I.R. had known that someone else had previously also opened the vehicle. There had been a problem with locking the vehicle because the batteries of the central lock had expired and the only door which could be opened was the one next to the driver's seat. He had opened that door and then, from the inside of the vehicle, opened the rear left door and cut off a sample from the back-seat cover measuring 5 by 5 centimetres. He had then exited the vehicle and handed the key to I.R. All this had been carried out without the presence of any of the defendants or their defence counsel. When specifically asked, he answered that he had not put anything in the vehicle.

29. I.R. stated that he was employed as a forensic technician at the Zadar Police Department. On 26 May 2000 his superior, I.N., had told him that the Centre for Forensic Expertise had told him in a telephone conversation that the police had omitted to enclose a sample of the seat cover from the vehicle of the defendant Zlatko Lisica, and asked for such a sample. He himself had not entered the vehicle; officer Z.B. had done so. After officer Z.B. had collected the required sample, he had locked the vehicle and they had placed the key in an envelope and then in a safe.

30. On 23 November 2000 a three-judge panel of the Zadar County Court dismissed the applicants' request that the transcript of the search of the first applicant's vehicle carried out on 27 May 2000 be excluded from the case-file. The relevant part of the decision reads:

“The search of the BMW vehicle, owned by the first defendant Zlatko Lisica, was carried out in Bibinje, on 24 May 2000 from 4.10 p.m. to 5.30 p.m. The vehicle was driven into the yard of the Zadar Police Department and the tyres were taken off for the purposes of further tests. The search was carried out by authorised persons K.B., T.J. (the fifth defendant) and T.Z. and the minutes were taken by K.B. During the search forensic technicians T.O. and I.R. collected from [...] inside the vehicle traces of earth from the space for passengers, a rug in front of the driver's seat, traces from the gear stick and micro traces from the front passenger seat and from the rear right and left seats, all for the purposes of further examination.

On that occasion no neutral comparative samples were collected from the seat covers ...

...

The evidence given by witnesses, employees of the Zadar Police Department, Z.B., I.R. and A.Š., show that the BMW vehicle had been opened on 26 May 2000 at around 3 p.m. when Z.B., a forensic technician, at the order of his superior ... I.N., in the presence of his colleague I.R. had cut a sample of the seat cover, which had then been, according to the evidence given by E.R., urgently forwarded to the Zagreb Centre for Forensic Expertise.

According to the written report a new search of the BMW vehicle had been carried out afterwards, on 27 May 2000, when certificates on the seizure of certain items had been issued, which items had been forwarded for tests on 28 May 2000 ...

The defence argues that the search of the BMW vehicle of 27 May 2000 was unlawful because the police had entered the vehicle beforehand, and that therefore what was found during that search is unlawfully obtained evidence, as are the results of [examination of] such evidence ...

It is not disputed that forensic technicians B. and R., with the aid of vehicle-electrician, Š., opened the BMW vehicle which had been temporarily seized and took from it a sample of fabric for testing. It is disputed whether that search was carried out without informing the defence counsel and the investigating judge or not.

This court concludes that the police officers, [and] forensic technicians, were in fact performing an act of inquiry under Article 177(1) of the Code of Criminal Procedure because they were preserving traces necessary for examination; since beforehand they had found and secured a trace in the BMW vehicle, it was then necessary to take a neutral comparative sample in order for urgent tests to be carried out [...]. Therefore, it was an act of inquiry which had to be carried out by the police before investigation (as in the instant case); [the police] had been obliged to [take a comparative sample] during the search of 24 May 2000, but had omitted to do so, and therefore did so later, on 26 May 2000.

As regards the taking of a sample of fabric from the BMW vehicle on 26 May 2000, the police had made an omission in that they failed to make an official written record of the act taken, which would have noted that the act [was provided for by] Article 177(2) of the Code of Criminal procedure. However, such an omission did not infringe the defence rights and all has now been remedied by the questioning of the forensic technician as a witness. Therefore, although the procedures followed by the police were deficient, the nature of these deficiencies did not render the evidence [thus obtained] unlawful, as argued by the defence on the ground that the search had been carried out without the presence of the defence counsel and that therefore the further search of 27 May 2000, irrespective of counsel's presence, had been unlawful because someone had entered the vehicle beforehand and [the authenticity of] the evidence found on 27 May 2000 was open to question

[This court] finds that on 26 May 2000 the police carried out an act of inquiry about which it was not obliged to inform the defence counsel, and therefore the procedures followed [by the police] were not unlawful but acceptable. This court will assess the importance of the evidence – [obtained in] the search carried out on 27 May 2000 – when assessing all the evidence together in view of the fact that a search of the same vehicle had been carried out three days before by a policeman who was later on a defendant [in the same criminal proceedings].

For the above reasons the request of the defence for the exclusion of evidence, [namely] a written record on the search of the BMW vehicle of 27 May 2000, has been dismissed, as well as the request for the exclusion of the evidence relating to the transcript of the search, namely certificates on seized items, photo documentation of the search and [the results of] mechanical examinations, on the ground that they had been obtained unlawfully.”

No separate appeal was allowed, but only an appeal against the judgment, which was yet to be adopted.

31. On 14 February 2001 the Zadar County Court found the applicants guilty of bank robbery and sentenced the first applicant to four years and five months' imprisonment and the second applicant to three years' imprisonment. The relevant operative part of the judgment reads:

“The first defendant, Zlatko Lisica, the second defendant, Meri Lisica, the third defendant, D.P., the fourth defendant, T.J., the sixth defendant, R.N. and the seventh defendant, R.P.

are guilty

because

1. ... on 24 May 2000 at about 8 a.m. in Zadar, with the aim of taking money transported by a VW Golf vehicle ... of the “Dalmatian Bank” in Zadar, the third defendant D.P. together with two unidentified persons, all masked with caps drawn over their heads and wearing gloves, with a stolen vehicle type VW Golf II with licence plates ZD 597 AG ... blocked the [passage of] the transport vehicle and forced the bank employees U.S., D.Š. and I.M. to exit the vehicle, using automatic guns resembling guns type UZI, ordered them to lie down in the road at gun point, and then entered the transport vehicle of the “Dalmatian Bank” in which seven bags of money were lying and went towards the part of Zadar known as Arbanasi – Karma to the Fontana pier ... , where the first defendant Zlatko Lisica was waiting in a motorboat “Nina”, type Bayliner 4504 A, after which they all boarded the motorboat and drove to the “Golden Heaven” sea port in the Punta area of Bibinje where the second defendant Meri Lisica was waiting in a vehicle type BMW 525 with licence plates ZD 974 CA, owned by the first defendant Zlatko Lisica, into which they transferred the money and drove all together to a nearby forest, save for the first defendant Zlatko Lisica, who went to Bibinje on a motorbike ...

...

The fourth defendant, T.J.

2. acting as accessory to the criminal offence of robbery [described] under 1., collaborated with the other defendants immediately after the offence had been committed, informing them, via frequent telephone calls to the third defendant D.P., about police activity in the investigation of the criminal offence under 1., which was known to him because he was an officer of the First Police Station of the Zadar Police Department. He thus aided the perpetrators of the criminal offence [at issue], and in particular D.P., to successfully avoid police investigation.

...”

32. The relevant reasoning of the judgment reads:

“In connection with the criminal offence encompassed by indictment no. DO-K-36/00, this court heard evidence from [the following] witnesses:

- U.S, D.Š. I.M. and E.S. – employees of the Dalmatian Bank;

- M.B., T.Š., S.J., E.B. and T.I. – pupils who were present in Foša at the crime scene on the morning in question;

- D.K – an eyewitness of some of the events at the pier;

- T.K., M.K., A.Z., D.Š. and M.K. – eyewitnesses of the events at Kolovare, Fontana;

- Đ.Ž. and T.R. – eyewitnesses of the route of the motorboat on the morning in question;

- S.F. – an eyewitness of the arrival of the motorboat at Punta, Bibinje;

- N.Š., V.B. and J.L – eyewitnesses of the route followed by the BMW owned by the first defendant;

- A.B. – the chief of the criminal police and police officers E.R. and R.L. – eyewitnesses to some of the events in Foša and Bibinje on the morning in question;

- Ž.L., K.L., B.S., A.Š., V.B., A.T. and B.Ć – alibi witnesses; and

- N.P., R.B., V.C. and F. Š.

In connection with the finding of objects after the event, [this court] heard evidence from witnesses E.P. and B.Š.

In connection with the checking of telephone numbers and lists of telephone calls, [this court] heard evidence from witnesses I.M., M.Š. and T.Š.

In connection with the vehicles used ..., [this court] heard evidence from witnesses J.B., A.F. and F.F.

[The court] also heard evidence from police officers K.B., T.O., A.Š., Ž.M., Z.B., B.K., and A.Š., and from other witnesses R.B., N.P., V.C., F.Š., J.Š. and D.B.

Written records of the on-site visits and searches were read out as well as certificates of temporary seizures of objects and lists of telephone calls. With the parties' consent the expert reports were read out ...

The defence sought exclusion of the following allegedly illegally obtained evidence:

...

- written record of the search of the BMW vehicle of 27 May 2000

...

The court concludes that the above-mentioned evidence was not obtained in breach of the provisions of the criminal procedure or in violation of the right to respect for private and family life. In this connection the court draws attention to its reasoning in a decision by the trial bench of 23 November 2000 ...

As regards the search of the BMW vehicle of 27 May 2000, which the defence claims to be illegal on account of the police having entered the BMW vehicle and thus having allegedly 'staged the search' and 'possibly planted an item of evidence', namely the plastic mould of a door handle of a Golf II vehicle, this court finds that it is not unusual that another search of the BMW vehicle was carried out on 27 May 2000 and that it was not a staged search. The evidence given by witnesses B. and O., who carried out the first search of 24 May 2000, together with the fourth defendant T.J., shows that that search had not been detailed. The witnesses stated that they had not opened the glove compartment in the BMW vehicle at all and that the aim of that search had been to find money, arms and evidence of a crime. Since the search was conducted under the supervision of the fourth defendant, it is to be presumed that he 'neglected details'. Furthermore, even the defence, in submissions of 28 May 2000, stressed that the search of 24 May 2000 had only 'concerned a superficial examination of the inside of the vehicle, which meant that the search was to be continued'.

In connection with the above request by the defence, the court has heard evidence from the following police officers: Z.B., I.R., A.Š. Ž.M., B.K., K.B., T.O. and E.R.

...

It has been established that all the defendants know each other and communicate regularly. The first and the second defendants are boyfriend and girlfriend and live in the same village. The first defendant is a good and loyal friend of the third defendant, which follows from the evidence given by witnesses B.S. ..., B.M. ... and J.Š.

...

The second defendant Meri Lisica drove the vehicle owned by the first defendant Zlatko Lisica in the vicinity of the crime scene (evidence given by witnesses B.S., N.Š., J.L. and supported by the expert report on tyre tracks). In the final phase of the event [at issue] she was also spotted by witnesses E.R. and L.

...

Circumstantial evidence after the crime had been committed comprises the fact that the motorboat was left in Punta, Bibinje, the village where the first and the second defendants live and which is not unknown to the third defendant, who had frequently stayed in the summer house owned by his uncle R.P. situated in Punta ...

Immediately after the event tyre tracks of the same tyre type as those on the BMW vehicle owned by the first defendant Zlatko Lisica were found sixteen metres away from the sea front in Punta, where the motorboat had been abandoned. The first defendant's vehicle [was also found] in front of the second defendant, Meri Lisica's, house with wet seats and covers and with the left fog light switched on. Finally, the third defendant and other perpetrators who have not yet been identified, sought shelter in a nearby forest in Bibinje (evidence given by witness Š. and the report on the on-site inspection of 28 May 2000, and in that connection also the report on chemical tests of 29 January 2001).

During the search of a BMW vehicle owned by the first defendant Lisica [carried out] on 27 May 2000 a plastic mould of the lock of the left-hand door of a vehicle type Golf II was found. The same type of Golf vehicle was used in order to block the bank's vehicle.

The evidence given by witnesses E.R. and R.L. is lawful. They referred to what they had seen on the morning of the events at 8.32 a.m. when they had followed the route of the motorboat. Since the criminal offence at issue was discovered ... immediately after its first phase had been completed and the search for the perpetrators began right after the phone call of witness T.I., the evidence given by witnesses E.R. and R.L. is to be taken as credible in that they said that at 8.32 a.m. they had been on the county road and had seen what they later described ... That they actually saw the vehicle owned by the first defendant, which had been familiar to them, and the second defendant (Meri Lisica) [driving] it correlates with the subsequent events. At the same time a [police] order was issued to find the vehicle owned by the first defendant, which was successfully completed, [the vehicle being] found in about twenty minutes. [Witnesses] R. and L. saw the second defendant M.L. when she arrived at the police station and recognised her as the woman they had seen shortly before at the wheel of the vehicle owned by the first defendant ...

During the proceedings the defence made an objection to the effect that witness E.R. had an interest in the outcome of these proceedings on account of the nature of his job as chief of the Criminal Police of the Zadar Police department ... and that therefore his evidence should not have been taken as credible (the closing arguments of the defence). It is to be noted that the court warned witness E.R. of his duty to tell the truth as well as of the consequences of perjury under the provisions of the Code of Criminal Procedure and that his evidence was assessed [by this court] as any other evidence and the court has concluded that the witness told the truth and did not lie out of the motives imputed to him.

...

On the morning in question witness D.K. ... was at the sea front in Foša ... He saw a motorboat ...

In the motorboat he saw a driver who was seated, and had a female hairstyle, curly upright hair like the singer Jimmy Hendrix, and was wearing dark glasses as if he wished to hide his face ...

He also stated that he had known the first defendant Zlatko Lisica from before and that they used to go for a drink together, and that the police had shown him his photograph. He commented that the driver of the motorboat had reminded him of the first defendant Zlatko Lisica and that he had considered telling the police that. At the hearing he explained that he had been hesitant as to whether to tell the police or not because testifying in court would be painful for him.

The Court concludes that witness K. knows the first defendant Zlatko Lisica and that even if he had recognised him as the driver of the motorboat, he would not have admitted it, as he had actually said himself. Only at the hearing did he explain his reluctance to tell the police and, later on, the court, that the driver of the motorboat had reminded him of the first defendant Zlatko Lisica, because being a witness was difficult for him. It is true that it is not a pleasant duty to testify before a trial bench at a public hearing. However, there was no such atmosphere at the hearing during the investigation and the witness did not know then whether he would be called to the hearing and whether the first defendant would be indicted at all, and even then he pondered over whether or not he should reveal who the driver of the motorboat had reminded him of, using the words 'I might have told'. For that reason this court concludes that the driver of the motorboat was the first defendant Zlatko Lisica, whom witness K. described by his hairstyle, because it is true that the first defendant Zlatko Lisica has long curly hair like the singer Jimmy Hendrix.

Other witnesses from Karma – Fontana also stated that the driver of the