CASE OF PERICA OREB v. CROATIA

FIRST SECTION

CASE OF PERICA OREB v. CROATIA

(Application no. 20824/09)

JUDGMENT

STRASBOURG

31 October 2013

FINAL

31/01/2014

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

In the case of Perica Oreb v. Croatia,

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

Isabelle Berro-Lefèvre, President,

Elisabeth Steiner,

Khanlar Hajiyev,

Mirjana Lazarova Trajkovska,

Julia Laffranque,

Ksenija Turković,

Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 8 October 2013,

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

PROCEDURE

1. The case originated in an application (no. 20824/09) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Perica Oreb (“the applicant”), on 26 March 2009.

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

3. On 12 March 2010 the President of the First Section decided to communicate the complaint under Article 5 § 3 of the Convention concerning the length of and the reasons for the applicant’s pre-trial detention and the complaint under Article 5 § 4 of the Convention about the failure of the Constitutional Court to decide the applicant’s constitutional complaints on the merits, to the Government. On 12 March 2013 further observations were requested under Article 6 § 2 of the Convention concerning the applicant’s right to be presumed innocent. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1982 and lives in Split.

A. Criminal proceedings against the applicant

5. On 1 August 2008 an investigating judge of the Split County Court (Županijski sud u Splitu) opened a criminal investigation in respect of the applicant and seventeen other persons for conspiracy to supply heroin and cocaine in Croatia and Bosnia and Herzegovina in the period between 10 January and 30 July 2008.

6. At a hearing held on 7 August 2008 before the investigating judge, the applicant stated that he had decided to remain silent. The investigating judge heard evidence from another suspect.

7. On 11 August 2008 the investigating judge heard evidence from two other suspects. On the same day he asked for the applicant’s criminal record, which was submitted on 12 August 2008 with a note that he had not been previously convicted of any criminal offence.

8. On 20 August 2008 the investigating judge commissioned a psychiatric report on eleven defendants, including the applicant, in order to assess their mental state at the time the criminal offence was committed and whether they were drug addicts.

9. On 8 September 2008 a psychiatric report commissioned for the purposes of the investigation was submitted by a psychiatrist of the Split Medical Faculty. As regards the applicant, the report stated that he was a long-term drug addict who had received treatment on two occasions but with no lasting results. He had resumed taking drugs a few months before. Since being detained he had been on Heptanon therapy which helped him to overcome his withdrawal symptoms. It was recommended that he continued with that therapy.

10. On 16 September 2008 the investigating judge heard evidence from six witnesses, police officers who conducted the police inquiry prior to the institution of the criminal proceedings.

11. On 24 October 2008 the investigating judge heard evidence from another suspect and on 29 and 31 October 2008 from four further police officers. On 7 November 2008 he heard evidence from another two suspects.

12. On 21 January 2009 the State Attorney’s Office for the Prevention of Corruption and Organised Crime preferred charges of conspiracy to supply heroin and cocaine in Croatia and Bosnia and Herzegovina in the period between 10 January and 30 July 2008 against the applicant and seventeen other defendants in the Split County Court.

13. On 29 January 2009 the applicant lodged an appeal against the bill of indictment (prigovor protiv optužnice). By 4 February 2011 all the other defendants had also lodged their objections.

14. On 4 March 2009 the Supreme Court returned the bill of indictment to the State Attorney’s Office asking it to submit, within three days, a request to take further investigative steps.

15. On 10 March 2009 the State Attorney’s Office asked the investigating judge to take further steps.

16. On 13 March 2009 the investigating judge ordered a transcript of all telephone conversations between the defendants, previously tapped by the police.

17. On 12 June 2009 an expert in telecommunications submitted his report with a transcript of those telephone conversations. The transcript comprises 568 pages.

18. On 16 June 2009 the State Attorney’s Office submitted the same indictment to the Split County Court.

19. On 1 July 2009 the applicant reiterated his objection to the indictment. He also requested that the evidence obtained by the police tapping of his telephone be excluded from the case file. The other defendants also lodged their objections.

20. On 8 September 2009 the Supreme Court dismissed the objections to the indictment and refused the applicant’s request to exclude from the case file all evidence obtained by the police tapping of his telephone.

21. The first hearing scheduled for 26 April 2010 in the Split County Court was adjourned because two defendants did not appear. One of them had been sent to Zagreb Prison Hospital for treatment and the other was in another medical institution. On the same day the presiding judge ordered psychiatric report in respect of two defendants. The report was submitted on 4 May 2010.

22. A hearing before the Split County Court was held on 8 June 2010 and all the defendants stated that they would give their defence at end of the trial.

23. At hearings held on 9, 10 and 11 June 2010 eight witnesses and the expert in psychiatry gave their evidence.

24. At hearings held on 19 and 20 July 2010 four witnesses gave their evidence.

25. At a hearing held on 21 July 2010 the County Court refused the request by the defence to exclude from the case file recordings of the defendants’ conversations.

26. At a hearing held on 14 September 2010 the majority of the defendants, including the applicant, pleaded guilty and two further witnesses gave their evidence.

27. Further hearings were held on 16 and 20 September 2010 and at the latter hearing a judgment was adopted, finding the applicant guilty and sentencing him to three years’ imprisonment. His detention was lifted.

28. Some of the defendants lodged appeals against the first-instance judgment and the proceedings are currently pending before the Supreme Court.

B. Decisions on the applicant’s detention

29. On 1 August 2008 an investigating judge of the Split County Court ordered all the suspects to be detained on the grounds under Article 102 § 1 (1), (3) and (4) of the Code of Criminal Procedure, namely the danger of the suspects absconding, the danger of the suspects reoffending and the gravity of the charges. The relevant part of the decision, referring to the grounds for detention, reads:

“In view of the manner in which the criminal offence was committed, the type and quantity of the illegal substances in which the suspects were trafficking, the large number of illegal transactions and the persistence and determination involved in committing the criminal offences, as well as the fact that the suspects are mostly unemployed with no means of support and that the suspects ... and Perica Oreb have previously been convicted of the same criminal offence or of similar criminal offences, there exists a justified fear that if released they might repeat a criminal offence of the same kind ...”

30. A report drawn up on 4 August 2008 by the Split Police Department expressly notes that the applicant had voluntarily come to that Department that day and that he had then been taken to Split Prison.

31. In his appeal of 7 August 2008 the applicant argued that the written charges against him alleged that he had had contact with only one of the other suspects, which showed that he could not have been a participant in any organised criminal activity since he did not know about the involvement of the other suspects and they were not even known to him. He supported these assertions with the argument that no illegal substances, money or equipment necessary for trafficking in the said substances on a large scale, such as packaging or scales, had been found on him, and that this showed that he personally had not been involved in such trafficking.

32. He also claimed that he had never been convicted by a final judgment of trafficking in illegal substances, but only of the criminal offence of using illegal substances and that he was not a drug addict. Lastly, he argued that the possibility of ordering an alternative measure to detention had not been considered.

33. On 8 August 2008 the investigating judge asked for a copy of the applicant’s criminal record. The report of 12 August 2008 submitted by the Ministry of Justice indicated that the applicant had not been convicted of any criminal offence.

34. On 22 August 2008 a three-judge panel of the Split County Court examined the appeals lodged by the defendants. It accepted that the ground under Article 102 § 1(1) of the Code of Criminal Procedure no longer persisted. In other respects it dismissed the applicant’s appeal on the grounds that: the documents in the case file showed that the applicant had previously been convicted of similar criminal offences (without any further explanations in that respect), and that the persistent criminal activity over a long period with which the suspects were charged taken together with their economic situation justified the fear that they might repeat the same offences. The relevant part of the decision reads:

“In view of the level of criminal activity with which the defendants are charged, namely, that they have been engaged in trafficking in illegal drugs over a long period of time, and in view of the resolve and persistence shown in committing the offence, the fact that the defendants ... Perica Oreb ... have already been convicted of criminal offences, and almost all defendants have no means of subsistence, all these things indicate that there is a danger of the defendants reoffending ...

The manner in which the criminal offences were committed, with the defendants organising themselves into a group, and the quantity of the illegal substances whose sale might put at risk the health of a large number of persons, amount to grave circumstances ...”

35. On 3 September 2008 the investigating judge extended the applicant’s detention for a further month on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (the danger of reoffending and the gravity of the charges). The relevant part of the decision reads:

“In view of the level of criminal activity with which the defendants have been charged, namely, that they have been engaged in trafficking in illegal drugs over a long period of time, and in view of the resolve to commit criminal offences and the fact that the defendants have previously been convicted of similar criminal offences, there is a danger of the defendants reoffending ...

The offence was committed under grave circumstances as shown by the manner in which it was committed, the fact that the defendants organised a group and the quantity of the illegal substances in circulation, which, through the sale on the illegal market, could put at risk the health of a number of persons.”

36. In his appeal of 8 September 2008 the applicant argued that he had not previously been convicted of the same offence and that the ordering of his detention under Article 102 § 1 (3) of the Code of Criminal Procedure (danger of reoffending) violated the principle of the presumption of innocence. He also reiterated that the written charges against him alleged that he had had contact with only one of the other suspects, which showed that he could not have been a participant in any organised criminal activity since he did not know about the involvement of the other suspects and did not even know who they were. He argued, in support of those assertions, that no illegal substances, money or materials necessary for trafficking in the said substances on a large scale, such as packaging or scales, had been found on him and that this showed that he had not personally been involved in such trafficking.

37. On 11 September 2008 a three-judge panel of the Split County Court dismissed the applicant’s appeal. The relevant part of the decision reads:

“... the defendants have been charged with the criminal offence of trafficking in illegal drugs between 10 January and 30 July 2008 ... The documents in the case file show that the defendant ... Perica Oreb has already been convicted of similar criminal offences; the defendant Perica Oreb ... is unemployed, and all three defendants have no assets.

In view of the high level of criminal activity with which they have been charged, namely that they engaged in trafficking in illegal drugs during the above-mentioned period and showed resolve and persistence in committing the offence, as well as their economic situation – all these circumstances taken together indicate a danger of the defendants reoffending ...

Furthermore, the offence was committed under grave circumstances as shown by the manner in which it was committed, the fact that the defendants organised a group and the quantity of the illegal substances, which through their sale on the illegal market could put at risk the health of a number of persons ...”

38. On 3 October 2008 the investigating judge lifted the applicant’s detention on the ground that the psychiatric report indicated that he had been a drug user and that he had been buying drugs for his own use and not in order to sell it to others. His immediate release was ordered as well. The State Attorney lodged an appeal on 7 October 2008.

39. On 10 October 2008 a three-judge panel of the Split County Court allowed the appeal and extended the applicant’s detention again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The reasoning was the same as that in the decision of 11 September 2008. It was stated, inter alia, that the documents in the case file showed that the applicant had previously been convicted of similar criminal offences (without any further explanations in that respect). The applicant was re-detained on 28 October 2008.

40. On 21 November 2008 the investigating judge extended the detention in respect of all the defendants for a further month again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. This decision was quashed by a three-judge panel of the Split County Court on 11 December 2008 on the ground that the period of further detention had to be specified for each defendant.

41. On 10 December 2008, in another set of criminal proceedings, the Dubrovnik County Court convicted the applicant of trafficking in heroin and sentenced him to two years’ imprisonment.

42. On 15 December 2008 the investigating judge extended the applicant’s detention until 28 December 2008, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The reasoning relied on the allegations that the accused had been charged with trafficking in substantial quantities of heroin as their primary activity. On 16 December 2008 the applicant lodged an appeal. He argued that no drugs, money or tools typical for the sale of drugs had been found on him and that he had never been convicted of any drug-related crimes. He again argued that the possibility of ordering an alternative measure to detention had not been considered.

43. On 23 December 2008 the investigating judge issued a fresh decision extending the applicant’s detention until 28 December, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. He relied on the allegations that the accused had been charged with trafficking in substantial quantities of heroin as their primary activity, on the gravity of the charges and the fact that the defendants had no means of support, without giving further details in this respect.

44. On 24 December 2008 a three-judge panel of the Split County Court declared the applicant’s appeal of 16 December 2008 inadmissible because a fresh decision on detention had been adopted in the meantime.

45. On 30 December 2008 the applicant lodged an appeal against the investigating judge’s decision of 23 December 2008. He reiterated the arguments from his previous appeal of 16 December 2008 and added that before his arrest he had been employed at a hotel in Cavtat.

46. On 14 January 2009 a three-judge panel of the Split County Court dismissed the appeal and reiterated the reasoning from its decision of 11 September 2008. It also stressed that the applicant had been convicted before and that he had no assets.

47. On 21 January 2009 the applicant lodged a constitutional complaint against the above decision, arguing that the following rights had been violated: his right to personal liberty; right to a fair trial; his right to equality before the law because the grounds for detention had been interpreted in an unusual fashion; and his right to an effective remedy because the examination of his appeal had been inadequate.

48. On 23 January 2009 the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. In addition to the reasoning in the previous decisions, it added that the applicant was a drug addict and stated, inter alia, that he had already been convicted of similar criminal offences, without any further explanations in that respect.

49. On 27 January 2009 the applicant lodged an appeal. In addition to the arguments put forward in his appeal of 16 and 30 December 2008 he added that his parents had a regular income and that therefore it could not be said that he had no means of subsistence.

50. On 16 February 2009 the Supreme Court dismissed the appeal of 27 January 2009, holding that the alleged manner in which the criminal offence had been committed amounted to particularly grave circumstances which justified detention on the ground under Article 102 § 1 (4) of the Code of Criminal Procedure. As regards the ground under Article 102 § 1 (3) – danger of reoffending – it was deemed justified since the applicant was a drug addict and two other sets of criminal proceedings concerning drug-related offences were pending against him, one before the Čakovec County Court and the other before the Dubrovnik County Court.

51. On 19 February 2009 the Constitutional Court declared the applicant’s constitutional complaint of 22 January 2009 against the decision of 14 January 2009 inadmissible on the ground that a fresh decision on detention had been adopted in the meantime.

52. On 16 April 2009 the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure and with the same reasoning as before, stating, inter alia, that the applicant had already been convicted of similar offences, without any further explanations in that respect.

53. On 8 May 2009 the Supreme Court quashed the decision of 16 April 2009 on the ground that the three-judge panel which adopted it had no such power and that it was the investigating judge who should have decided whether to extend the detention.

54. On 15 May 2009 the investigating judge extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The reasoning relied on the allegations that the accused had been charged with trafficking in substantial quantities of heroin as their primary activity and had no other income. In his appeal lodged the same day the applicant reiterated the arguments from his appeal of 30 December 2008. As regards his previous conviction, he argued that the Dubrovnik County Court’s judgment of 10 December 2008 had not yet become final.

55. On 28 May 2009 the Supreme Court dismissed the appeal, endorsing the reasons put forward by the investigating judge.

56. On 10 June 2009 the investigating judge again extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure and with the same reasoning as in the decision of 15 May 2009.

57. On 16 June 2009 the applicant lodged an appeal. He reiterated his previous arguments.

58. On 18 June 2009 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in the previous decisions concerning the applicant’s detention. It stated, inter alia, that the documents in the case file showed that the applicant had already been convicted of similar offences, without any further explanations in that respect.

59. On 24 June 2009 the applicant lodged an appeal reiterating his previous arguments.

60. On 30 June 2009 a three-judge panel of the Split County Court declared the applicant’s appeal of 16 June 2009 inadmissible because a fresh decision on his detention had been adopted in the meantime.

61. On 13 July 2009 the Supreme Court dismissed the applicant’s appeal of 24 June 2009. As to the applicant’s previous convictions, it stated:

“All appellants, save for ... Perica Oreb ... had already been convicted of similar criminal offences ...

... criminal proceedings are currently pending against the accused Perica Oreb before the Dubrovnik County Court in which he has been convicted, by a judgment that has not yet become final, of a criminal offence under Article 173 § 2 of the Criminal Code and sentenced to two years’ imprisonment. Therefore, the fact that the accused had not been finally convicted could not alter conclusion that there is a danger of him reoffending since other criminal proceedings are pending against the accused, which is also relevant in assessing the conformity of their lifestyles with the laws.

...”

62. On 14 September 2009 a three-judge panel of the Split County Court again extended the applicant’s detention on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in the previous decisions concerning the applicant’s detention and stating, inter alia, that the documents in the case file showed that the applicant had already been convicted of similar offences, without any further explanations in that respect.

63. On 17 September 2009 the applicant lodged an appeal reiterating his previous arguments.

64. On 28 September 2009 the Supreme Court dismissed the appeal. As to the applicant’s previous convictions, it stated:

“All appellants, save for ... Perica Oreb ... had already been convicted of similar criminal offences ...

... criminal proceedings are currently pending against the accused Perica Oreb before the Dubrovnik County Court in which he has been convicted, by a judgment that has not yet become final, of a criminal offence under Article 173 § 2 of the Criminal Code and sentenced to two years’ imprisonment.

The above circumstances taken together justify the fear that they would continue committing the same or similar offences and that therefore [the decision to extend] their detention on the ground under Article 102 § 1 (3) of the Code of Criminal Procedure is correct.

...”

65. The applicant lodged a constitutional complaint, challenging the grounds for and the duration of his detention.

66. On 26 November 2009 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in the previous decisions concerning the applicant’s detention and stating that the applicant’s criminal record showed that he had already been convicted of similar offences.

67. On 1 December 2009 the applicant lodged an appeal reiterating his previous arguments.

68. On 15 December 2009 the Constitutional Court declared the applicant’s constitutional complaint against the decision of 28 September 2009 inadmissible on the ground that it was no longer in effect since a fresh decision on the applicant’s detention had meanwhile been adopted.

69. On 16 December 2009 the Supreme Court dismissed the appeal. As to the applicant’s previous convictions, it stated:

“All appellants, save for ... Perica Oreb ... had already been convicted of similar criminal offences ...

Even though there is no previous conviction in the criminal record of Perica Oreb, the documents in the case file show that ... criminal proceedings are currently pending against him before the Dubrovnik County Court in which he has been convicted, by a judgment that has not yet become final, of a criminal offence under Article 173 § 2 of the Criminal Code and sentenced to two years’ imprisonment. These circumstances, contrary to the submissions of all the appellants, are relevant in assessing the conformity of their lifestyles with the laws.

The above circumstances together with the fact that all of the appellants, save for D.R., are heroin addicts and the accused ... Perica Oreb is unemployed ... justify the fear that, if at large, they would continue to commit the same or similar criminal offences and therefore [the decision to extend] their detention on the ground under Article 102 § 1 (3) of the Code of Criminal Procedure is correct.

...”

70. The applicant lodged a constitutional complaint, again challenging the grounds for and the duration of his detention.

71. On 12 February 2010 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The reasoning relied on the indictment, which charged the accused with conspiracy to supply a large quantity of heroin for a longer period of time, the danger of such criminal activity, the fact that they were heroin addicts and had no other income.

72. On 18 February 2010 the applicant lodged an appeal reiterating his previous arguments.

73. On 25 February 2010 the Constitutional Court declared the applicant’s constitutional complaint against the decision of 16 December 2009 inadmissible on the ground that it was no longer in effect since a fresh decision on the applicant’s detention had meanwhile been adopted.

74. On 12 March 2010 the Supreme Court dismissed the appeal, endorsing the reasoning of the impugned decision. As regards the applicant, it specifically stated that:

“The accused Perica Oreb is, according to his own statement, unemployed, with no assets and the psychiatric report shows that he is a heroin addict. Furthermore, he has been convicted of the offence under Article 173 § 2 of the Criminal Code by a judgment of the Dubrovnik County Court which has not yet become final”

75. On 12 May 2010 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in its decision of 12 February 2010.

76. On 14 May 2010 the applicant lodged an appeal reiterating his previous arguments.

77. On 23 June 2010 the Supreme Court dismissed the appeal, endorsing the reasoning of the impugned decision. As regards the applicant, it specifically gave the same reasons as in its decision of 12 March 2010.

78. On 24 August 2010 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in the decision of 12 May 2010.

79. On 30 August 2010 the applicant lodged an appeal reiterating his previous arguments. As indicated above (paragraph 27) the applicant was convicted by the County Court and released on 20 September 2010.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant law

80. The relevant provisions of the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide:

Preventive Measures

Article 90

“(1) Where the conditions for ordering detention under Article 102 of this Code have been fulfilled, and where the same purpose may be achieved by other preventive measures under this Article, the court shall order that one or more preventive measures are to be applied ...

(2) Preventive measures are:

1) prohibition on leaving one’s place of residence;

2) prohibition on being in a certain place or area;

3) obligation on the defendant to report periodically to a certain person or a State body;

4) prohibition on access to a certain person or on establishing or maintaining contact with a certain person;

5) prohibition on undertaking a certain business activity;

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

7) temporary seizure of a driving licence.

...”

8. General Provisions on Detention

Article 101

(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure.

(2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist.

(3) When deciding on detention, in particular its duration, the court shall take into consideration the proportionality between the gravity of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of detention.

(4) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case the detention measure shall immediately be lifted.

9. Grounds for Ordering Detention

Article 102

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

...

3. special circumstances justify the suspicion that the person concerned might reoffend ...

4. if the charges involved relate to murder, robbery, rape, terrorism, kidnapping, drug abuse, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, when detention is justified by the modus operandi or other especially grave circumstances of the offence.

81. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows:

Basic Provisions

Section 1

“(1) This Act regulates the execution of prison sentences.

...”

The Use of Terms

Section 8

“The terms used in this Act have the following meaning:

1. A detainee is any person held in detention pursuant to a pre-trial detention order.

...

3. An inmate is any person sentenced to a prison sentence for a criminal offence, serving the prison sentence in a prison or in a jail.

...”

JUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE PRISON ADMINISTRATION

Section 17

“(1) An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.

(2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”

Criteria for sending a convict to serve a prison sentence

Article 49

“ ...

(4) If a convict’s pre-trial detention has been ordered or extended in another set of criminal proceedings, the judge responsible for the execution of the prison sentence shall send him to serve the prison sentence which will start after the pre-trial detention has been lifted.

...”

B. Relevant practice

82. In its decision of 17 March 2009, nos. U-III/4182/2008 and U-III/678/2009, in the case of Robert Peša, concerning, inter alia, the conditions of his pre-trial detention in Zagreb Prison, the Constitutional Court found a violation of Mr Peša’s right to human treatment and to respect for his dignity and also ordered the Government to adjust the facilities at Zagreb Prison to the needs of detainees within a reasonable time, not exceeding five years. It further held that a complaint about prison conditions to a judge responsible for the execution of sentences under the Enforcement of Prison Sentences Act was also to be used by persons in pre-trial detention. The relevant part of this decision reads:

“20. ... the Constitutional Court established the following obligatory legal opinion:

- the courts are obliged to apply the same procedures concerning requests for protection of the rights of convicted prisoners to the judges responsible for the execution of sentences with respect to such requests lodged by persons placed in pre-trial detention ...

...

22. For the reasons set out in points ... 17 [of this decision] the Constitutional Court finds that the general conditions of the applicant’s detention amount to degrading treatment and thus infringe his constitutional rights guaranteed under Articles 23 and 25 § 1 of the Constitution as well as his rights under Article 3 of the Convention.

The Constitutional Court has not addressed the possibility of granting the applicant just satisfaction for the above infringements of his constitutional and Convention rights because in the Croatian legal system there exists another, effective legal remedy in that respect (see the Constitutional Court’s decision no. U-III-1437/07 of 23 April 2008.”

83. In decision no. U-III-1437/2007 of 23 April 2008 the Constitutional Court found that the conditions of detention of a prisoner, P.M., in Lepoglava State Prison amounted to inhuman treatment. It also addressed the question of P.M.’s claim for just satisfaction. The relevant parts of the decision read:

“In particular, the Constitutional Court finds unacceptable the [lower] courts’ opinion that in this case a claim for non-pecuniary damage cannot be awarded under section 200 of the Civil Obligations Act on the ground that such a compensation claim is unfounded in law.

...

Section 1046 of the Civil Obligations Act defines non-pecuniary damage as infringement of the right to respect for one’s personal integrity. In other words, every infringement of one’s right to personal integrity amounts to non-pecuniary damage.

Section 19(2) of the Civil Obligations Act defines the right to personal integrity for the purposes of that Act as: the right to life, physical and mental health, reputation, honour, respect for one’s dignity and name, privacy of personal and family life, freedom and other aspects.

... it is to be concluded that in this case there has been a violation of human, constitutional and personal values because the applicant was in prison conditions which were incompatible with the standards prescribed by the Enforcement of Prison Sentences Act and also with the legal standards under Article 25 § 1 of the Constitution. For that reason the courts are obliged to award compensation for the infringement of the applicant’s dignity.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

84. In his submissions of 31 March 2010 the applicant complained under Article 3 of the Convention that the conditions of his detention had been inhuman.

85. The Court notes that in its decision in the case of Peša of 17 March 2009, no. U-III/4182/2008, the Constitutional Court established that the remedies under the Enforcement of Prison Sentences Act, namely a complaint to a judge responsible for the execution of sentences applied equally to convicted prisoners and persons in pre-trial detention (see paragraph 82 above).

86. Furthermore, in the same decision the Constitutional Court itself found a violation of the right of a detained person not to be exposed to inhuman and degrading treatment as regards prison conditions. Owing to the conditions the Constitutional Court found to be in violation of Article 3 of the Convention, it ordered the immediate release of the person concerned, who then had the right to seek compensation from the State.

87. In its judgment in the case of Peša v. Croatia (no. 40523/08, 8 April 2010) the Court accepted that the findings of the Constitutional Court together with a possibility of seeking compensation from the State stripped the applicant in that case of his victim status in connection with his complaint about the conditions in pre-trial detention under Article 3 of the Convention.

88. The Court thus finds that, as regards complaints about the conditions of pre-trial detention, individual measures are available under the national law and that therefore the available remedies have to be exhausted.

89. The Court notes that the applicant failed to submit his complaint about the prison conditions to a judge responsible for the execution of sentences or to the prison administration and in the case of the unfavourable outcome of these complaints to use further available remedies, including a constitutional complaint in this respect (see Peša, cited above, §§ 78-80). He has thus, contrary to the principle of subsidiarity, failed to afford the national authorities a possibility to remedy the situation he is now complaining of to the Court.

90. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

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

91. The applicant complained that his right to trial within a reasonable time or release pending trial had not been respected and that the reasons relied on by the national authorities for ordering and extending his detention could not be regarded as relevant and sufficient. He relied on Article 5 § 3 of the Convention, the relevant part of which provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A. Admissibility

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

B. Merits

1. The parties’ arguments

93. The applicant, reiterating the arguments from his appeals lodged before the national courts, argued that the grounds for his detention were not relevant and sufficient, that his pre-trial detention exceeded a reasonable time and that the national courts had not conducted the criminal proceedings against him with the required efficiency, in view of the fact that he had been placed in pre-trial detention.

94. The Government, reiterating the reasons put forward by the national courts, argued that the grounds for the applicants’ detention had been relevant and sufficient throughout his detention. In their view, the fact that the applicant was found to be a long-term drug addict and charged with being a member of an organised group engaged in trafficking in drugs justified the national court’s belief that he posed a danger of re-offending. His detention was also justified by the alleged manner in which the criminal offence at issue had been committed, that is to say, over a long period of time by an organised group of persons trafficking in heroin and cocaine.

95. The national courts had regularly examined whether the grounds for the applicant’s detention had still persisted and had shown due diligence in the conduct of the proceedings.

2. The Court’s assessment

(a) Period to be taken into consideration

96. The Court notes that there is no dispute between the parties that the period to be taken into consideration began on 4 August 2008, when the applicant was taken to Split Prison. There is also no dispute that the applicant was released on 3 October 2008 and that he was again detained between 28 October 2008 and 20 September 2010, when he was released.

97. Given that the applicant’s pre-trial detention consisted of two separate periods, the Court firstly refers to its judgment in the Idalov v. Russia case, where it found, as regards the six-month rule, that an applicant is obliged to bring any complaint which he or she may have concerning pre-trial detention within six months of the date of the actual release. It follows that periods of pre-trial detention which end more than six months before an applicant lodges a complaint before the Court cannot be examined, having regard to the provisions of Article 35 § 1 of the Convention (see Idalov v. Russia [GC], no. 5826/03, § 130, 22 May 2012). In the present case the applicant did comply with the six-month rule in respect of both periods of detention as he brought his application before the Court on 26 March 2009.

98. According to the Court’s well-established case-law, in determining the length of detention under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused was taken into custody and ends on the day when he was released (see, for example, Fešar v. the Czech Republic, no. 76576/01, § 44, 13 November 2008) or when the charge was determined, even if only by a court of first instance (see, Belevitskiy v. Russia, no. 72967/01, § 99, 1 March 2007; and Sizov v. Russia, no. 33123/08, § 44, 15 March 2011). As regards the latter point, in view of the essential link between Article 5 § 3 of the Convention and paragraph 1 (c) of that Article, a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see Labita v. Italy [GC], no. 26772/95, §§ 145-147, ECHR 2000‑IV; and Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000‑XI).

99. Having in mind the above considerations, the Court must first address the possible effect of the applicant’s conviction in another parallel set of criminal proceedings (see paragraph 41 above) on the period to be taken into consideration in respect of his complaint under Article 5 § 3 of the Convention.

100. In this connection the Court firstly notes that throughout his detention the applicant was remanded in custody in connection with the criminal proceedings which commenced on 1 August 2008 (see paragraph 5 above) and on grounds specific to those proceedings. Secondly, the Court also notes that in Croatia there exist two types of detention, differing in terms of premises and regime. The first type is pre-trial detention. Detainees are placed in detention centres rather than in ordinary prisons and are subject to a specific regime as regards the organisation of their time, the right to visits, the right to work in the prison, and so on. The second type is in ordinary prisons, where convicted prisoners are accommodated. Once sentenced to a prison term a convict is not transferred to a prison automatically, but only on the basis of a specific order, and on his or her admission to a prison an individual prison regime and programme is set up (see Dervishi v. Croatia, no. 67341/10, § 123, 25 September 2012).

101. However, if pre-trial detention against the convicted person has been ordered or extended in another set of criminal proceedings, that person cannot start to serve his prison term while in pre-trial detention. The Court has already addressed this issue in the above mentioned Dervishi case where the applicant, who was sentenced to a prison term on charges of extortion while being in pre-trial detention in connection with the criminal proceedings on charges of trafficking in heroin, asked to start serving his prison sentence concerning the conviction of extortion. Even though that request was allowed, the applicant was nevertheless not allowed to start serving his prison term as long as he was detained in connection with the criminal proceedings against him on charges of trafficking in heroin (see Dervishi, cited above, § 124).

102. Against the above background, the Court considers that, in the present case, there was no causal connection between the applicant’s conviction in another set of criminal proceedings and the deprivation of liberty at issue (see M. v. Germany, no. 19359/04, § 88, ECHR 2009 and Dervishi, cited above, § 125) and that his pre-trial detention in the proceedings at issue never coincided with serving any prison sentence following his conviction in separate criminal proceedings (see, by contrast, Piotr Baranowski v. Poland, no. 39742/05, §§ 14, 45, 2 October 2007). Therefore, in these circumstances the Court considers that the applicant’s conviction in another set of criminal proceedings has no influence on the overall period of his pre-trial detention which is to be examined in the present case (see Dervishi, cited above, § 125).

103. As to the two periods of the applicant’s pre-trial detention, namely between 4 August and 3 October 2008 and then between 28 October 2008 and 20 September 2010, the Court considers that, according to its case-law, where such periods can be examined before the Court having regard to the provisions of Article 35 § 1 of the Convention, a global assessment of the aggregate period is required (see, for example, Smirnova v. Russia, nos. 46133/99 and 48183/99, § 66, ECHR 2003‑IX (extracts), and, mutatis mutandis, Idalov, cited above, § 130; and Dervishi, cited above, § 126).

104. It follows that the period of the applicant’s pre-trial detention to be taken into consideration began on 4 August 2008, the date of the applicant’s placement in Split Prison, and ended on 20 September 2010, when he was released, less the period between 3 and 28 October 2008, during which the applicant was released from detention, which in total amounts to two years and twenty-two days.

(b) General principles

105. Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, 26 January 1993, Series A no. 254‑A, and Kudła, cited above).

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

107. The Court further observes that it falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable length of time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Labita, cited above, § 152).

108. The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the specific facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001).

109. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases the Court must establish whether the other grounds given by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita, cited above, § 153).

(c) Application of the general principles to the present case

110. The Court notes that the applicant was held in custody for more than two years. A pre-trial detention of this length is a matter of concern for the Court. It observes that the domestic courts extended the applicant’s detention a number of times. In their decisions they consistently relied on the gravity of the charges as the main factor and on the applicant’s potential to reoffend.

111. As regards the courts’ reliance on the gravity of the charges as the decisive element, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention (see Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; and Ilijkov, cited above, § 81).

112. The other grounds for the applicant’s continued detention were the domestic courts’ findings that the applicant could reoffend. The Court reiterates that it is incumbent on the domestic authorities to establish the existence of concrete facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005). It remains to be ascertained whether the domestic authorities established and convincingly demonstrated the existence of specific facts in support of their conclusions.

(i) The danger of reoffending

113. In a number of the detention orders the domestic courts cited the likelihood that the applicant would reoffend as an additional ground justifying his continued detention. In this connection, the Court observes that the judicial authorities in assessing whether there was a risk that the applicant would reoffend indicated that he had been previously convicted of similar offences. However, they did not refer to any specific final judgment finding the applicant guilty, but in some of the decisions extending his detention relied on the fact that parallel criminal proceedings were pending before some other courts. However, as there was no formal finding of a previous crime in a final conviction, the principle of the presumption of innocence demands that merely pending proceedings could not be referred to as a proof of one’s propensity to commit criminal offences. In this connection the Court also notes that the applicant had no previous criminal record.

(ii) Seriousness of the alleged offences

114. The Court has repeatedly held that although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Belevitskiy v. Russia, no. 72967/01, § 101, 1 March 2007; Panchenko, cited above, § 102; Khudoyorov v. Russia, no. 6847/02, § 180, ECHR 2005‑X; Ilijkov, § 81; and Peša, § 104, cited above).

115. In the present case, throughout the applicant’s pre-trial detention, the domestic courts extended the applicant’s detention also on the ground of the particularly grave circumstances under which he had allegedly committed the offences at issue. In doing so, the national courts used the same stereotyped phrases and in some cases even identical wording. In this respect the Court reiterates that it has found a violation of Article 5 § 3 of the Convention in many other cases in which the domestic authorities were using stereotyped formulae without addressing specific facts of the case (see Tsarenko v. Russia, no. 5235/09, § 70, 3 March 2011).

116. At this juncture the Court reiterates that a court decision extending detention on such grounds requires a more solid basis to show not only that there was genuinely “a reasonable suspicion”, but also that there were other serious public-interest considerations which, notwithstanding the presumption of innocence, outweighed the right to liberty (see, among other authorities, I.A. v. France, 23 September 1998, § 102, Reports 1998-VII; and Šuput v. Croatia, no. 49905/07, § 102, 31 May 2011).

117. The Court has already held on a number of occasions that, by reason of their particular gravity and public reaction to them, certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time. In exceptional circumstances this factor may therefore be taken into account for the purposes of the Convention, in any event in so far as domestic law recognises the notion of disturbance to public order caused by an offence. However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused’s release would actually disturb public order. In addition detention will continue to be legitimate only if public order remains actually threatened; its continuation cannot be used to anticipate a custodial sentence (see Kemmache v. France, 27 November 1991, § 52, Series A no. 218, and Tomasi v. France, 27 August 1992, § 91, Series A no. 241‑A; and Aleksandr Makarov v. Russia, no. 15217/07, § 136, 12 March 2009).

118. In the present case these conditions were not satisfied. The Court notes that Croatian law does not recognise the notion of prejudice to public order caused by an offence as a ground for detention (see Peša v. Croatia, cited above, § 103). Furthermore, the national courts did not explain why continued detention of the applicant was necessary in order to prevent public disquiet and did not examine whether the applicant presented a danger for public safety.

(iii) Alternative measures of restraint

119. The Court further emphasises that when deciding whether a person should be released or detained the authorities have an obligation under Article 5 § 3 to consider alternative measures of ensuring his or her appearance at the trial (see Sulaoja v. Estonia, no. 55939/00, § 64, 15 February 2005, and Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000). During the entire period under consideration the authorities did not consider the possibility of ensuring the applicant’s attendance by the use of other “preventive measures” expressly provided for by Croatian law to secure the proper conduct of criminal proceedings.

(iv) Conclusion

120. In sum, the Court finds that the domestic authorities’ decisions were not based on an analysis of all the pertinent facts. They took no notice of the arguments in favour of the applicant’s release pending trial.

121. Having regard to the above, the Court considers that by failing to refer to concrete relevant facts or consider alternative “preventive measures”, the authorities extended the applicant’s detention on grounds which cannot be regarded as “sufficient”. They thus failed to justify the applicant’s continued deprivation of liberty for a period of over two years. It is hence not necessary to examine whether the proceedings against the applicant were conducted with due diligence during that period as such a lengthy period cannot in the circumstances be regarded as “reasonable” within the meaning of Article 5 § 3 (see Pekov v. Bulgaria, no. 50358/99, § 85, 30 March 2006).

122. There has therefore been a violation of Article 5 § 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

123. The applicant also complained that the proceedings concerning his appeals against the detention orders issued against him had not met the requirements of Article 5 § 4 of the Convention, which reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A. Admissibility

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

B. Merits

1. The parties’ arguments

125. The applicant maintained that the Constitutional Court had declared three of his constitutional complaints inadmissible solely on the ground that a fresh decision extending his detention had been adopted in the meantime. In the applicant’s view, such practice ran counter to the requirements of Article 5 § 4 of the Convention.

126. The Government maintained that in Croatia detention could be ordered and extended only by a decision of a competent court. An appeal against such a decision was always provided for which ensured examination of the decisions on detention. A detained person was also able to lodge a request for his or her release at any time.

127. As regards the case in issue, the Government submitted that each time the applicant had lodged an appeal against any of the decisions concerning his detention the appeal had been examined on the merits by an appeal court. Thus, the requirements of Article 5 § 4 of the Convention had been satisfied.

128. Furthermore, the present case was to be distinguished from the case of Peša v. Croatia because the applicant’s constitutional complaint of 21 January 2009 had been registered at the Constitutional Court on 22 January 2009, only a day before the Split County Court had again extended the applicant’s detention. Therefore, the Constitutional Court could not have examined a complaint against a decision which was no longer in effect.

2. The Court’s assessment

(a) General principles

129. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12, and Ismoilov and Others v. Russia, no. 2947/06, § 145, 24 April 2008). A remedy must be made available during a person’s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, mutatis mutandis, Stoichkov v. Bulgaria, no. 9808/02, § 66 in fine, 24 March 2005, and Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004‑VIII). The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, §§ 46 and 55, ECHR 2002‑I).

(b) Application of these principles in the present case

130. The Court firstly notes that under the relevant domestic law, detention during an investigation must be reviewed by the investigating judge after one month and then again after two and three months (Article 107 of the Code of Criminal Procedure). After the indictment has been filed, detention must be judicially reviewed every two months. The Court notes that in the circumstances of the present case the lawfulness of the applicant’s detention was considered by the domestic courts on many occasions.

131. The applicant was able to lodge requests for his release. He was also able to lodge an appeal against each decision of the investigating judge ordering and extending his detention, as well as an appeal with the Supreme Court against each decision of the Split County Court extending his detention. The Court finds that the national courts periodically and automatically reviewed the applicant’s detention and gave reasons for its extension. Each time the applicant was also able to lodge a constitutional complaint. However, the Court notes that the practice of the Constitutional Court is to declare inadmissible each constitutional complaint where, before it has given its decision, a fresh decision extending detention has been adopted in the meantime. Thus, the applicant’s constitutional complaint of 22 January 2009 against the Supreme Court’s decision of 14 January 2009 was declared inadmissible by the Constitutional Court on such grounds on 19 February 2009 (see paragraph 51 above). The same is true for the applicant’s constitutional complaint against the Supreme Court’s decision of 28 September 2009, declared inadmissible on 15 December 2009 (see paragraph 68 above); and the constitutional complaint against the Supreme Court’s decision of 16 December 2009, declared inadmissible on 25 February 2010 (see paragraph 73 above). The Court therefore has to address the question of the compliance of the Constitutional Court’s decisions with the requirements of Article 5 § 4 of the Convention.

132. In this connection the Court reiterates that, according to its case-law, Article 5 § 4 enshrines, as does Article 6 § 1, the right of access to court, which can only be subject to reasonable limitations that do not impair its very essence (see Shishkov v. Bulgaria, no. 38822/97, §§ 82-90, ECHR 2003-I, and Bochev v. Bulgaria, no. 73481/01, § 70, 13 November 2008).

133. Furthermore, whereas Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of applications for release from detention, a State which institutes such a system must in principle nevertheless accord detainees the same guarantees on appeal as at first instance (see Toth v. Austria, 12 December 1991, § 84, Series A no. 224; Rutten v. the Netherlands, no. 32605/96, § 53, 24 July 2001; Lanz v. Austria, no. 24430/94, § 42, 31 January 2002; and Svipsta v. Latvia, no. 66820/01, § 129, ECHR 2006‑III). The Court considers that the same applies in a system which provides for a constitutional complaint against decisions ordering and extending detention (see Peša, cited above, § 124, 8 April 2010).

134. However, the Croatian system, although allowing for a constitutional complaint, leaves it to the Constitutional Court to await a fresh decision on extending detention and then to declare the complaint against the previous decision on detention inadmissible. Thus, although the applicant lodged a constitutional complaint against the three above-mentioned decisions of the Supreme Court, the Constitutional Court did not decide on the merits of any of these complaints but declared them all inadmissible because each time a fresh decision on the applicant’s detention had meanwhile been adopted.

135. In the Court’s opinion, the Constitutional Court’s failure to examine the applicant’s constitutional complaints on the merits made it impossible to ensure the proper and meaningful functioning of the system for the review of his detention, as provided for by the national law. By declaring the applicant’s constitutional complaints inadmissible simply because a fresh decision extending his detention had meanwhile been adopted, the Constitutional Court did not satisfy the requirement “that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy” (see Peša, cited above, § 126, and Hađi v. Croatia, no. 42998/08, § 47, 1 July 2010). Thus, it fell short of its obligation under Article 5 § 4 of the Convention to review the lawfulness of the applicant’s detention. There has accordingly been a violation of that provision.

IV. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

136. The applicant further complained that the domestic courts had violated the presumption of innocence. He relied on Article 6 § 2 of the Convention which reads:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

A. Admissibility

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

B. Merits

1. The parties’ arguments

138. The applicant argued that the domestic courts had violated the presumption of innocence because in their decisions ordering and extending his detention they had repeatedly stated that the defendants had engaged in trafficking in illegal drugs, showing persistence and resolve in committing the criminal offence in question. Furthermore, the national courts had repeatedly stated that there was a risk of reoffending because he had already been convicted of the same offences. However, there was no final conviction against him. They had also considered the fact that two other sets of criminal proceedings were pending against him as a relevant factor in assessing the risk of his reoffending, thus implying that he was guilty of the offences that were the subject of those two sets of proceedings.

139. The Government argued that the national courts had treated the allegations held against the applicant as a reasonable suspicion and not as established facts. They further contended that the accused’s previous convictions could only be taken into account as an element for assessing a sentence and not when assessing the reasons for his or her detention.

2. The Court’s assessment

140. The Court reiterates that the presumption of innocence under Article 6 §2 will be violated if a judicial decision or, indeed, a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before his guilt has been proved according to law. It suffices, in the absence of a formal finding, that there is some reasoning suggesting that the court or the official in question regards the accused as guilty, while a premature expression by the tribunal itself of such an opinion will inevitably run foul of the said presumption (see, among other authorities, Deweer v. Belgium, 27 February 1980, § 56, Series A no. 35; Minelli v. Switzerland, 25 March 1983, §§ 27, 30 and 37, Series A no. 62; Allenet de Ribemont v. France, 10 February 1995, §§ 35-36, Series A no. 308; and Karakaş and Yeşilırmak v. Turkey, no. 43925/985, § 49, 28 June 2005; and Allen v. the United Kingdom [GC], no. 25424/09 [GC], § 93, 12 July 2013).

141. Article 6 § 2 governs criminal proceedings in their entirety, “irrespective of the outcome of the prosecution” (see Minelli v. Switzerland, cited above, § 30). However, once an accused is found guilty, in principle, it ceases to apply in respect of any allegations made within the subsequent sentencing procedure (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22, and Matijašević v. Serbia, no. 23037/04, 19 September 2006).

142. As to the present case, the Court notes that the domestic courts justified the applicant’s pre-trial detention by, inter alia, the gravity of the offences and the manner in which they were committed. They did not, however, treat those circumstances as established facts but only as allegations.

143. In the wording of their decisions the domestic courts relied on the bill of indictment, stating that there was a justified suspicion that the applicant had committed the offences in question. Thus they solely relied on the charges brought against him. In that respect the wording of their decisions did not amount to finding the applicant guilty of the charges brought against him in violation of the presumption of innocence under Article 6 § 2 of the Convention.

144. However, as regards the repeated statements of the national courts that there was a risk that the applicant might reoffend since he had already been convicted of similar offences, the Court notes that throughout the criminal proceedings against the applicant, his pre-trial detention was extended, inter alia, on the ground that he had already been convicted of similar offences. In some of their decisions the national courts did not refer to any specific final judgment finding the applicant guilty or to any specific criminal proceedings against him. In other decisions, in assessing whether there was a risk that the applicant would reoffend, they relied on the fact that parallel criminal proceedings were pending before the Čakovec County Court and the Dubrovnik County Court and subsequently on his conviction by the latter which had not become final. From the context of the decisions at issue, it could be inferred that the national courts, even when not mentioning any other criminal proceedings, actually had in mind the two parallel sets of criminal proceedings, namely, those before the Čakovec County Court and the Dubrovnik County Court.

145. The Court considers that Article 6 § 2 of the Convention by no means prevented the competent authorities from referring to the applicant’s existing conviction when the matter of his guilt had not been finally determined. Nonetheless, any reference to a conviction that has not yet become final should be made with all the discretion and restraint which respect for the presumption of innocence demands (see, mutatis mutandis, Konstas v. Greece, no. 53466/07, § 34, 24 May 2011).

146. The Court also reiterates that the Convention must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory (see, for example, Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Capeau v. Belgium, no. 42914/98, § 21, ECHR 2005‑I). Accordingly, and in the light of the foregoing, it considers that the presumption of innocence cannot cease to apply while the appeal proceedings are still pending simply because the accused was convicted at first instance. To conclude otherwise would contradict the role of appeal proceedings, where the appellate court is required to re-examine the earlier decision submitted to it as to the facts and the law (see Konstas v. Greece, cited above, § 36).

147. The Court considers, in this connection, that only a formal finding of a previous crime, that is, a final conviction, may be taken as a reason for ordering pre-trial detention on the ground that someone has previously been convicted. To consider the mere fact that there are other, separate and still pending, criminal proceedings against the person concerned as a conviction would unavoidably imply that he or she was guilty of the offences that were the subject of those proceedings. This is exactly what happened in the present case where the national courts repeatedly stated that the applicant had already been convicted of similar offences even though his criminal record clearly indicated that he had not been convicted of any offences. Furthermore, they also considered the fact that parallel criminal proceedings were pending against him as a relevant factor in assessing the risk of his reoffending and considered that that fact showed a lack of conformity of his lifestyle with the laws, thus implying that he was guilty of the offences that were the subject of those proceedings. They thus repeatedly breached the applicant’s right to be presumed innocent in the said separate proceedings pending concurrently (see, by way of comparison, Hajnal v. Serbia, no. 36937/06, § 131, 19 June 2012).

148. There has accordingly been a violation of Article 6 § 2 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

149. The applicant further complained that he had been discriminated against contrary to Article 14 of the Convention.

150. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

151. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

152. The applicant claimed 4,000 euros (EUR) in respect of non-pecuniary damage.

153. The Government deemed the claim unfounded and excessive.

154. The Court accepts that the applicant must have suffered some non-pecuniary damage in connection with a violation of his right to be presumed innocent and with the excessive length of his pre-trial detention and the failure of the Constitutional Court to examine his complaints on the merits. In view of the circumstances of the present case and ruling on an equitable basis the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage.

B. Costs and expenses

155. The applicant also claimed EUR 1,215 in connection with lodging his appeals before the national courts and his constitutional complaints.

156. The Government contested the claim.

157. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that the applicant’s appeals and constitutional complaint lodged in connection with the decisions ordering and extending his pre-trial detention were aimed at remedying the violation the Court has found under Article 5 § 3 of the Convention. Regard being had to the information in its possession and the above criteria, the Court considers that the sum claimed for costs and expenses in the domestic proceedings should be awarded in full, plus any tax that may be chargeable to the applicant on that amount.

C. Default interest

158. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint under Article 5 § 3 of the Convention concerning the length of and the reasons for the applicant’s pre-trial detention; the complaint under Article 5 § 4 of the Convention about the failure of the Constitutional Court to decide the applicant’s constitutional complaints on the merits; and the complaint under Article 6 § 2 of the Convention admissible and the remainder of the application inadmissible;

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

3. Holds that there has been a violation of Article 5 § 4 of the Convention;

4. Holds that there has been a violation of Article 6 § 2 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, which are to be converted into Croatian kuna at the rate applicable on the date of settlement:

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,215 (one thousand two hundred and fifteen euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

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

Done in English, and notified in writing on 31 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

 

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