CASE OF NENAD KOVAČEVIĆ v. CROATIA

SECOND SECTION

CASE OF NENAD KOVAČEVIĆ v. CROATIA

(Application no. 38415/13)

JUDGMENT

STRASBOURG

24 November 2015

FINAL

14/03/2016

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

In the case of Nenad Kovačević v. Croatia,

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

Işıl Karakaş, President,
Julia Laffranque,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 3 November 2015,

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

PROCEDURE

1. The case originated in an application (no. 38415/13) 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 and Serbian national, Mr Nenad Kovačević (“the applicant”), on 13 May 2013.

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

3. The applicant complained of a lack of relevant and sufficient reasons for his continued pre-trial detention, contrary to Article 5 §§ 1 (c) and 3 of the Convention.

4. On 12 December 2013 the applicant’s complaints under Article 5 were communicated to the Government and the remainder of the application was declared inadmissible.

5. The Government of Serbia were informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court), but did not avail themselves of the possibility of doing so.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1976 and is currently serving a prison sentence in Croatia.

A. Background to the case

7. In 1997 an investigation was opened in respect of the applicant on suspicion of murder. He was remanded in custody during the investigation from 5 February to 21 May 1997.

8. Following his release from custody, the applicant became unavailable to the Croatian authorities, and on 18 December 1998 the Osijek County Court (Županijski sud u Osijeku), as the competent trial court, ordered his trial in absentia.

9. On 8 February 1999 the Osijek County Court found the applicant guilty as charged and sentenced him in absentia to nine years’ imprisonment. The judgment became final on 22 February 1999.

10. On 27 September 2005 a judge responsible for the execution of sentences at the Osijek County Court ordered that the applicant should start to serve his prison sentence. Given that at the time the applicant was still at large, the judge ordered that a warrant be issued for his arrest.

11. On the basis of the arrest warrant, the applicant was arrested in Bosnia and Herzegovina and on 21 July 2011 he was extradited to Croatia, where he immediately started to serve his prison sentence.

12. The day following his extradition, the applicant requested the Osijek County Court to reopen the proceedings conducted in his absence (see paragraph 30 below). He relied on the Code of Criminal Procedure, which provided for the automatic reopening of proceedings conducted in absentia at the request of the convicted person.

13. A three-judge panel of the Osijek County Court granted the applicant’s request for reopening of the proceedings on 26 August 2011. The decision became final on 6 September 2011.

14. On 4 October 2011 the Osijek County Court discontinued the applicant’s prison sentence on the ground that the reopening of the proceedings had been granted and that therefore the execution of the sentence had to be stayed, as required under Article 507 § 5 of the Code of Criminal Procedure (see paragraph 31 below).

B. Decisions on the applicant’s pre-trial detention

15. In the meantime, on 27 September 2011 the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku) had requested the Osijek County Court to order that the applicant be remanded in custody under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding) pending the retrial.

16. In connection with that request, on 5 October 2011 a three-judge panel of the Osijek County Court heard the applicant and his lawyer. They argued, in particular, that the applicant had not sought to avoid trial and that his detention should be replaced by the application of a less restrictive measure, such as bail, which could be effected by the seizure of his mother’s house and of documents.

17. On the same day the Osijek County Court accepted the request of the State Attorney’s Office and ordered the applicant’s pre-trial detention under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding). The relevant part of the decision reads:

“Having considered the [available] evidence, this panel has found that the accused Nenad Kovačević received an indictment [from the competent prosecutor] on 24 June 1997 ..., that the Osijek-baranja Police Department informed the Osijek County Court that the accused Nenad Kovačević was absent from his place of residence [in Croatia] as he had gone away in March 1998 and was [at the time] allegedly in Bosnia and Herzegovina, as stated by his mother. Furthermore, it was established that the accused Nenad Kovačević had been found guilty by the above-mentioned final judgment of the Osijek County Court of the offence of murder ... for which he had been sentenced to nine years’ imprisonment. It was also established that the accused Nenad Kovačević ... had been arrested [in Bosnia and Herzegovina] because a sentence-execution judge of this court ordered that he should start to serve his prison sentence, and therefore the objection that the general conditions for ordering detention under Article 123 of the Code of Criminal Procedure have not been met is unfounded. The final judgment adopted in the criminal proceedings conducted in the absence of the accused, by which he was found guilty on charges of murder and sentenced to nine years’ imprisonment, represents a reasonable suspicion that the accused Nenad Kovačević committed the offence of murder ... The fact that he fled, given that the order for his pre-trial detention and the arrest warrant remained futile and there was no possibility for the police to bring him [before the court] for a hearing, and that he was arrested only on the basis of [an arrest warrant] for the execution of the prison term to which he had been sentenced, suggests the existence of grounds for ordering pre-trial detention under Article 123 § 1(1) of the Code of Criminal Procedure; that is to say, special grounds justifying a risk that, if at large, the accused might abscond and thus hinder the proper conduct of these criminal proceedings.

...

As already stated above, the accused Nenad Kovačević received the mentioned indictment by which he is charged with murder ... It follows [from the case file] that he was also detained. This suggests that the accused knew that the criminal proceedings at issue had been pending against him and that he had been charged with a serious criminal offence. He [nevertheless] left his residence and the territory of Croatia and was arrested on the territory of a country where he did not have residence, namely Bosnia and Herzegovina, while he himself stated that he had residence in Serbia. All these circumstances as well suggest that there is a risk that the accused might again abscond and thereby hinder the termination of the reopened proceedings at issue.

In addition, as the panel of this court has found that the conditions for ordering detention in respect of the accused Nenad Kovačević under Article 123 § 1(1) of the Code of Criminal Procedure have been met, [it considers that] the measure of detention is necessary in order to avert the risk of absconding, which could not be achieved by bail or the alternative measures suggested by the accused and his defence lawyer. This is particularly true given the circumstances and severity of the offence at issue, and the fact that [the accused] is also a national of Serbia and that he himself stated that he had no residence in Croatia, which means that he could very easily leave the territory of Croatia.”

18. The applicant appealed to the Supreme Court (Vrhovni sud Republike Hrvatske), arguing that the indictment had not been served on him but on his brother, who had been a minor at the time, and that he had left Croatia for personal reasons. He offered his Croatian and Serbian passports and his mother’s house in Croatia as bail to guarantee that he would not abscond. The applicant also contended that the decision of the Osijek County Court lacked the relevant reasoning concerning the possibility of his conditional release.

19. The Supreme Court dismissed the applicant’s appeal as ill-founded on 4 November 2011. The relevant part of the decision reads:

“Contrary to the appeal arguments, the Supreme Court as the second-instance court finds that the first-instance court correctly established that the defendant should be remanded in custody under Article 123 § 1(1) of the Code of Criminal Procedure.

Reasonable suspicion that the defendant committed the offence [of murder] follows from the final judgment by which he was found guilty and sentenced to nine years’ imprisonment, which had been adopted after a trial in absentia and in respect of which a retrial was granted. The general requirement for detention has therefore been met.

Furthermore, it should be noted that the defendant, although aware that criminal proceedings were pending against him (he was questioned by an investigating judge, he was detained from 5 February to 21 May 1997, and he received the indictment), left the territory of Croatia and thereby became unavailable during the proceedings conducted before the Osijek County Court. He was arrested only after a sentence-execution judge issued an order for his arrest for the execution of the prison sentence, and [the arrest] was effected on the basis of an international arrest warrant in Bosnia and Herzegovina, although he stated that his residence was in Serbia.

All these circumstances, in the view of the Supreme Court as the second-instance court, suggest that there is a fear that the defendant, who is also a national of Serbia, if at large, could abscond and thereby hinder the course of the criminal proceedings. This in particular follows from his previous behaviour, the fact that he was unavailable to the judicial authorities for fourteen years and that he is again being tried for a serious criminal offence for which he had been found guilty in absentia and sentenced to nine years’ imprisonment ...

The appeal arguments of the defendant that he did not know that the criminal proceedings at issue were pending as he had not received the indictment are unfounded because the material from the case file suggests the opposite. The case file contains signed delivery notices which demonstrate that he duly received the indictment. He was also questioned before an investigating judge concerning the offence of which he was later found guilty, and for which he had also spent some time in pre-trial detention. There is therefore no doubt that he knew about the criminal proceedings pending against him.

Moreover, the appellant is wrong in contending that a fundamental procedural omission occurred in that the impugned decision is not sufficiently reasoned in respect of the possibility of applying bail or some other alternative measure. The first-instance court provided sufficient and clear reasons for considering it necessary to order pre-trial detention under Article 123 § 1(1) of the Code of Criminal Procedure and why the same purpose could not be achieved by bail or any other alternative measure; and this second-instance court fully endorses those reasons.”

20. On 9 December 2011 the applicant again requested that his pre-trial detention be replaced by bail or an alternative less restrictive measure. At the hearing held on 16 January 2012 he reiterated his request.

21. The Osijek County Court dismissed the applicant’s request on 16 January 2012 and extended his detention under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding), reiterating its previous reasoning.

22. On 2 February 2012, following a retrial, the Osijek County Court upheld the applicant’s conviction in absentia, finding him guilty of the offence of murder and sentencing him to nine years’ imprisonment. It was also decided on the same day that the applicant should remain in detention pending a final judgment.

23. The applicant appealed against that judgment to the Supreme Court. On 23 October 2012 the Supreme Court quashed the judgment and remitted the case to the Osijek County Court for re-examination on the grounds of the existence of procedural flaws.

24. At the same time, the Supreme Court extended the applicant’s detention under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding), reiterating its previous reasons.

25. On 7 December 2012 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decision on his pre-trial detention. He argued in particular that in view of the circumstances of the case, his detention was disproportionate and should be replaced by bail or an alternative less restrictive preventive measure.

26. On 13 December 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. That decision was served on the applicant’s representative on 17 December 2012.

27. On 18 December 2012, having reheard the case, the Osijek County Court upheld the applicant’s conviction in absentia, finding him guilty of the offence of murder and sentencing him to nine years’ imprisonment. The applicant was remanded in custody pending a final judgment.

28. That judgment was upheld by the Supreme Court on 18 June 2013 and it thereby became final. On 18 October 2013 the applicant challenged it before the Constitutional Court and the proceedings before that court are still pending.

II. RELEVANT DOMESTIC AND COMPARATIVE LAW

A. Relevant domestic law

1. Constitution

29. The relevant provisions of the Constitution of the Republic of Croatia (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 and 5/2014) read as follows:

Article 22

“Personal freedom and integrity are inviolable.

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

2. Code of Criminal Procedure

30. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 121/2011 and 91/2012) provide:

Preventive Measures

Article 98

“(1) Where the conditions for ordering detention under Article 123 of this Code have been fulfilled, and where the same purpose may be achieved by other preventive measures, the court or the State Attorney shall order the application of one or more preventive measures ...

(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 of the defendant to report periodically to a certain person or a State body;

4) prohibition on contact with a certain person;

5) prohibition on establishing or maintaining contact with a certain person;

6) prohibition on undertaking a certain business activity;

7) temporary seizure of a passport or other document necessary for crossing the State border;

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

Bail

Article 102

“(1) The detention under Article 123 paragraphs 1 to 3 of this Act may be terminated provided that the defendant personally, or another person on his behalf, posts bail and the defendant personally promises that he will not hide or leave his place of residence without permission, that he will not interfere with the criminal proceedings and that he will not commit a new criminal offence.

(2) In the decision on detention, the court may set the amount of bail which could replace the detention. Bail shall always be set in a pecuniary amount determined with regard to the gravity of the criminal offence and the personal circumstances and financial situation of the defendant.

(3) If the court considers that bail cannot substitute detention, it shall set out the reasons why it considers that [to be so].

(4) Complementary to the bail, the court may order the application of one or more preventive measures.”

Grounds for Ordering Detention

Article 123

“(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention:

1. if he or she has absconded or there are special 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); ...”

Reopening of Criminal Proceedings

Article 497

“(1) Criminal proceedings terminated by a final decision or judgment may be reopened at the request of an authorised person only in the cases and under the conditions provided for by this Code.

(2) Criminal proceedings in which a person was sentenced in his or her absence (Article 402 paragraph 3 and 4), if there is a possibility of a retrial in his or her presence, shall be reopened ... if the convicted person or his or her counsel submits a request for the reopening of the proceedings within a period of one year from the day the convicted person became available to the judicial authorities of the Republic of Croatia.

...”

31. Under Article 507 § 5 of the Code of Criminal Procedure when a decision allowing for the reopening of proceedings becomes final, the serving of the sentence must be stayed and the competent court may, if the relevant conditions under that Code are met, order pre-trial detention (see further Sanader v. Croatia, no. 66408/12, §§ 64 and 85, 12 February 2015).

3. Agreement with Bosnia and Herzegovina on the abolition of visa requirements

32. On 5 December 2003 the Governments of Croatia and Bosnia and Herzegovina concluded an international agreement on the abolition of visa requirements (Sporazum između Vlade Republike Hrvatske i Vijeća ministara Bosne i Hercegovine o uzajamnom ukidanju viza, Official Gazette – International Contracts no. 2/2004). Accordingly, crossing their mutual borders became possible with only a personal identity document.

B. Relevant comparative law

33. The Serbian Mutual Assistance in Criminal Matters Act 2009 (published in Official Gazette of the Republic of Serbia no. 20/2009) entered into force on 27 March 2009. Under section 16 of the Act, Serbian citizens cannot be extradited. The Act repealed the corresponding provision of the Code of Criminal Procedure of 2001 (published in Official Gazette of the Federal Republic of Yugoslavia no. 70/2001, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/2002 and Official Gazette of the Republic of Serbia nos. 58/2004, 85/2005, 115/2005, 49/2007, 20/2009 and 72/2009), which was in force between 28 March 2002 and 27 March 2009.

THE LAW

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

34. The applicant complained that his continued pre-trial detention had not been based on relevant and sufficient reasons. He relied on Article 5 §§ 1 (c) and 3 of the Convention. The Court, being the master of characterisation to be given in law to the facts of the case (see, for example, Margaretić v. Croatia, no. 16115/13, § 75, 5 June 2014), considers that this complaint falls to be examined under 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

1. Compliance with the six-month time-limit

(a) The parties’ arguments

35. The Government contended that in the periods between 21 July and 4 October 2011, 2 February and 23 October 2012, and 18 December 2012 and 18 June 2013 the applicant had not been detained pending trial but on the basis of a conviction by a competent court. The first of those periods had ended on 4 October 2011, when the execution of the applicant’s prison sentence had been stayed, and the second on 23 October 2012 when the Supreme Court had quashed the first-instance judgment convicting the applicant. As the applicant had lodged his application with the Court on 13 May 2013, it followed that it had been introduced one year and six months after the expiry of the first period and seven months after the expiry of the second period. The Government further considered that the applicant had been detained pending trial only in the periods between 5 October 2011 and 2 February 2012, and 23 October and 18 December 2012. In view of the fact that the former period had ended on 2 February 2012 following the adoption of the first-instance judgment of the Osijek County Court, and that the applicant had lodged his application with the Court on 13 May 2013, the Government considered that his application in respect of that period had been lodged out of time. Accordingly, in the Government’s view, only the period between 23 October and 18 December 2012 could be examined by the Court.

36. The applicant pointed out in particular that after the extension of his pre-trial detention by the Supreme Court on 23 October 2012, he had used the only available remedy at his disposal, bringing his complaints before the Constitutional Court. The decision of that court had been served on him on 17 December 2012 and he had lodged his application with the Court on 13 May 2013 – thus within the six-month time-limit.

(b) The Court’s assessment

37. 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).

38. The Court has already held on a number of occasions that, as in the instant case, multiple, consecutive periods of detention should be regarded as a whole. In order to assess the length of the applicant’s pre-trial detention, it should therefore make an overall evaluation of the accumulated periods of detention under Article 5 § 3 (see, among many other authorities, Solmaz v. Turkey, no. 27561/02, §§ 34-37, 16 January 2007, and Dirdizov v. Russia, no. 41461/10, § 105, 27 November 2012).

39. In this connection the Court observes that the applicant was extradited from Bosnia and Herzegovina to Croatia on 21 July 2011 on the basis of an international arrest warrant issued for the purpose of enforcing the prison sentence imposed following his conviction in absentia (see paragraph 11 above). The next day the applicant requested the reopening of the proceedings, which was granted by a decision of the Osijek County Court on 26 August 2011 and that decision became final on 6 September 2011 (see paragraph 13 above). From that time, in terms of the relevant domestic law, the serving of the prison sentence must be stayed (see paragraph 31 above) and the decision discontinuing the execution of the sentence was adopted on 4 October 2011 (see paragraph 14 above).

40. It thus follows that the applicant should be considered as having been detained pending trial, within the meaning of Article 5 §§ 1 (c) and 3 of the Convention, at least from 4 October 2011, and for the purposes of Article 5 § 3 he was detained until his conviction by the Osijek County Court on 2 February 2012 (see paragraph 22 above). From that date until 23 October 2012, when the Supreme Court quashed the first-instance judgment of the Osijek County Court (see paragraph 23 above), he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (see Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000‑XI). From 23 October 2012 until he was convicted by the Osijek County Court on 18 December 2012 (see paragraph 27 above), the applicant was again in pre-trial detention for the purposes of Article 5 § 3 of the Convention.

41. In these circumstances, in view of the fact that the applicant was constantly detained following his extradition to Croatia (see paragraphs 11, 22 and 24 above), the Court finds that his multiple, consecutive periods of detention should be regarded as a whole for the purposes of the six-month time-limit (see paragraph 38 above). Accordingly, in view of the fact that the applicant lodged his application with the Court on 13 May 2013, whereas the final period of his pre-trial detention ended on 18 December 2012, the Court finds that the applicant brought his application to the Court within the six-month time-limit. Moreover the Court observes that the decision concerning the applicant’s use of an effective domestic remedy before the Constitutional Court (see, amongst many others, Dragin v. Croatia, no. 75068/12, § 103, 24 July 2014) was served on him on 17 December 2012 (see paragraph 26 above), thus also within the six-month time-limit.

42. The Government’s objection should therefore be rejected.

2. Exhaustion of domestic remedies

(a) The parties’ arguments

43. The Government submitted that the applicant had not lodged a constitutional complaint before the Constitutional Court against the decision on his detention adopted by the Osijek County Court on 5 October 2011, upheld by the Supreme Court on 4 November 2011. Moreover, the Government stressed that the applicant had failed to lodge an appeal against the decision of the Osijek County Court of 16 January 2012 by which his detention had been extended.

44. The applicant maintained that he had properly exhausted the domestic remedies by lodging a constitutional complaint before the Constitutional Court to complain about his pre-trial detention.

(b) The Court’s assessment

45. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. The purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-IV). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of directly resolving the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).

46. As to the alleged violations of Article 5 § 3 of the Convention, the Court has already held that if a person alleges a violation of this provision on account of the length of his detention in circumstances such as those in the present case, he complains of a continuing situation, which should be considered as a whole and not divided into separate periods (see Popov and Vorobyev v. Russia, no. 1606/02, § 71, 23 April 2009). In this regard the Court considers that if the applicant made the domestic courts sufficiently aware of his situation and gave them an opportunity to assess whether his detention was compatible with his Convention right to a trial within a reasonable time or release pending trial, it cannot be held that the applicant has failed to comply with his obligation to exhaust domestic remedies (see Popov and Vorobyev, cited above, § 71, and Šuput v. Croatia, no. 49905/07, § 86, 31 May 2011).

47. The Court notes at the outset that during the criminal proceedings against him the applicant pursued a number of remedies which were capable of bringing the impugned situation, seen as a whole, to the attention of the domestic authorities and thereby giving them an adequate opportunity to assess whether his detention was compatible with the Convention (see paragraphs 16, 18, 20 and 25 above).

48. In a number of cases against Croatia the Court has already rejected the same arguments raised by the respondent Government challenging the fact that an applicant who had used a number of remedies during the proceedings, including a constitutional complaint before the Constitutional Court concerning several decisions ordering and extending his detention, as in the present case, had not challenged all those decisions one by one by pursuing all possible remedies at his disposal. In all those cases the Court considered it important to examine whether the applicant had sufficiently brought the impugned situation, seen as a whole, to the attention of the domestic authorities and had thus given them an adequate opportunity to assess whether his detention was compatible with the Convention (see Šuput, cited above, §§ 80-88; Dervishi v. Croatia, no. 67341/10, §§ 115-17, 25 September 2012; Trifković v. Croatia, no. 36653/09, §§ 108-11, 6 November 2012; and Dragin, cited above, §§ 103-05).

49. In view of the failure of the Government to provide any relevant arguments to the contrary, the Court sees no reason to depart from this case-law in the present case. It therefore rejects the Government’s objection.

3. Conclusion

50. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

(a) The applicant

51. The applicant submitted that the perception that he had absconded or sought to avoid trial was misconceived, as any such assertion had not been based on relevant and sufficient facts. In particular, he contended that the indictment had never been properly served on him and that he had had no reason to believe that criminal proceedings were pending against him. Accordingly, he had left for Bosnia and Herzegovina not to avoid trial but for personal reasons. There had therefore been no reason for ordering his detention on the ground that he might abscond.

52. The applicant also stressed that even if the domestic authorities had considered that his pre-trial detention was needed, they should have examined the possibility of his conditional release on bail or the application of other less restrictive measures. This was particularly so given that he had offered his documents and his mother’s house as a guarantee that he would not abscond, but the domestic authorities had ignored his offers and appeals and had unjustifiably extended his pre-trial detention.

(b) The Government

53. The Government argued that throughout the period of the applicant’s detention he had been detained in full compliance with all the pertinent substantive and procedural requirements of the relevant domestic law. In particular, the domestic courts had sufficiently examined the existence of a reasonable suspicion that the applicant had committed the criminal offence at issue and the circumstances suggesting that there was a fear that, if at large, he might abscond. In their reasoning, the Osijek County Court and the Supreme Court had convincingly demonstrated that the applicant had been well aware of the criminal proceedings against him and that he had nonetheless remained unavailable to the Croatian authorities for almost fourteen years. Specifically, the domestic courts had taken into account the fact that the applicant had been questioned by an investigating judge concerning the offence at issue, that he had been detained for a certain period of time and that the indictment had been properly served on him, which all suggested that he had been well aware of the criminal proceedings against him. Moreover, the domestic courts had found that the applicant was also a Serbian national and that he was not resident in Croatia, whereas he had been arrested in a third country, Bosnia and Herzegovina, where he did not reside either.

54. Furthermore, the Government considered that the domestic courts had sufficiently examined the possibility of releasing the applicant on bail or other less restrictive preventive measures but had found them insufficient to secure his presence, given that he had already absconded once. He was also a national of Serbia, which did not extradite its nationals. Moreover, in the Government’s view, the applicant had no real ties with Croatia given that for a period of fourteen years he had never gone there to visit his family. Lastly, the Government stressed that there was nothing in the conduct of the domestic authorities which disclosed a lack of diligence in the conduct of the proceedings or otherwise any arbitrariness or unfairness in ordering and extending the applicant’s pre-trial detention.

2. The Court’s assessment

(a) General principles

55. 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, cited above, § 110).

56. The presumption is in favour of release. Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require him to be released provisionally once his continuing detention ceases to be reasonable (see Vlasov v. Russia, no. 78146/01, § 104, 12 June 2008, with further references).

57. It falls in the first place to the national judicial authorities to ensure that in a given case the pre-trial detention of an accused person does not exceed a reasonable time. To this end, they must examine all the evidence for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and the facts cited by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000‑IV). The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX).

58. 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, amongst many others, Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012; and Krikunov v. Russia, no. 13991/05, § 36, 4 December 2014).

59. With regard in particular to the danger of an accused’s absconding, the Court has held that it cannot be gauged solely on the basis of the severity of the sentence risked. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial. The risk of absconding has to be assessed in the light of factors relating to the person’s character, morals, home, occupation, assets, family ties and all kinds of links with the country in which he is prosecuted. The expectation of a heavy sentence and the weight of evidence may be relevant but are not as such decisive, and the possibility of obtaining guarantees may have to be used to offset any risk (see Neumeister v. Austria, 27 June 1968, § 10, Series A no. 8, and Becciev v. Moldova, no. 9190/03, § 58, 4 October 2005).

60. Lastly, the Court reiterates that according to its well-established case-law under Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures of ensuring his or her appearance at trial (see, for instance, Idalov, cited above, § 140 in fine).

(b) Application of these principles to the present case

61. In view of all the circumstances of the case at hand (see paragraph 40 above), the Court finds that the period of the applicant’s detention to be taken into consideration amounts in total to some six months.

62. The Court observes that following the reopening of the criminal proceedings against him on charges of murder, initially conducted in his absence because he was unavailable to the Croatian judicial authorities, the applicant’s detention pending trial was ordered on the ground of risk of absconding.

63. In particular, when ordering his pre-trial detention the Osijek County Court relied on the fact that the applicant had been sufficiently aware of the criminal proceedings pending against him since he had been served with the indictment and he had also been remanded in custody, yet he had fled Croatia following his release from custody. Moreover, his presence could only be secured by means of an international arrest warrant, through which he had eventually been arrested in Bosnia and Herzegovina and extradited to Croatia. Furthermore, the Osijek County Court took into account the fact that the applicant resided in Serbia and also held nationality of that country, whereas he had been arrested on the territory of a third country, namely Bosnia and Herzegovina. In view of all those circumstances, the court considered that there was a risk that, if at large, the applicant might again abscond and thus hinder the proper course of the proceedings (see paragraphs 17 above).

64. Following an appeal lodged by the applicant, all those findings were upheld by the Supreme Court acting as the second-instance court in the matter (see paragraph 19 above). Accordingly, the applicant’s detention was further extended on the grounds of risk of absconding (see paragraphs 21 and 24 above).

65. In this connection, the Court would emphasise that there is a general principle that the domestic courts, in particular the trial court, are better placed to examine all the circumstances of the case and take all the necessary decisions, including those in respect of pre-trial detention. The Court may intervene only in situations where the rights and liberties guaranteed under the Convention have been infringed (see, for instance, Amirov v. Russia, no. 51857/13, § 106, 27 November 2014). The Court does not find any arbitrariness in the assessment of the relevant circumstances of the case by the competent domestic courts, nor does it find any of the reasons on which they relied manifestly unreasonable or unfounded. This is particularly true in view of the fact that the applicant’s argument that he was not aware of the pending criminal proceedings against him in Croatia was duly examined and dismissed by the domestic courts.

66. On the other hand, the Court has difficulties accepting the applicant’s arguments that he was not aware of the pending criminal proceedings against him in Croatia, since there are sufficient facts indicating the contrary. In particular, as emphasised by the domestic courts, during the criminal proceedings at issue the applicant was questioned by an investigating judge, and he was detained from 5 February to 21 May 1997 (see paragraphs 17 and 19 above). Moreover, on the basis of the material from the case file, the domestic courts also found that the indictment had been duly served on the applicant. The Court cannot therefore accept his assertion that he was not aware of the pending criminal proceedings against him. Moreover, he has not provided either the domestic courts or the Court with any concrete reasons for his sudden flight from the territory of Croatia after being released from detention, without ever informing the competent authorities of his whereabouts for a period of some fourteen years.

67. It therefore follows that the domestic courts appropriately evaluated and demonstrated the existence of a substantial risk of the applicant’s absconding. Accordingly, that fact created a strong presumption against the application of alternative measures of restraint (see Zimin v. Russia, no. 48613/06, § 38, 6 February 2014).

68. In this connection, the Court notes that the domestic courts specifically examined the possibility of the applicant’s release under a less restrictive preventive measure but found it to be inapplicable in the circumstances of the case, particularly as the applicant held Serbian nationality and had no residence in Croatia, which allowed him easily to leave its territory (see paragraphs 17 and 19 above). Indeed, the Court notes that the applicant’s Serbian nationality is not in dispute and that Serbia does not extradite its nationals (see paragraph 33 above). Moreover, even without the passport offered to the authorities, the applicant could very easily have left Croatia (see paragraph 32 above; and compare Bolech v. Switzerland, no. 30138/12, § 54, 29 October 2013).

69. It therefore follows that the domestic courts appropriately examined the possibility of releasing the applicant and provided convincing and detailed reasons for refusing to release him and to apply an alternative preventive measure (compare Shabani v. Switzerland, no. 29044/06, § 63, 5 November 2009; Sopin v. Russia, no. 57319/10, § 45, 18 December 2012; and, by contrast, Idalov, cited above, § 148; and Orban v. Croatia, no. 56111/12, § 60, 19 December 2013).

70. Taking into account the above, the Court considers that, in the particular circumstances of the case, a substantial risk of the applicant’s absconding persisted throughout his six-month detention and accepts the domestic courts’ finding that no other measures to secure his presence would have been appropriate (compare Zimin, cited above, § 39).

71. The Court therefore concludes that there were relevant and sufficient grounds for the applicant’s continued detention. Moreover, in view of all the circumstances of the case, it finds no indications of a lack of “special diligence” in the conduct of the proceedings by the domestic authorities, nor did the applicant provide any arguments to the contrary.

72. The Court therefore finds that there has been no violation of Article 5 § 3 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 5 § 3 of the Convention.

Done in English, and notified in writing on 24 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithIşıl Karakaş
RegistrarPresident

 

Full & Egal Universal Law Academy