GETOS-MAGDIC v. CROATIA

FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56305/08
by Gordana GETOŠ-MAGDIĆ
against Croatia

The European Court of Human Rights (First Section), sitting on 3 September 2009 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 27 October 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Gordana Getoš-Magdić, is a Croatian national who was born in 1968 and lives in Osijek. She is represented before the Court by Ms J. Rinceanu, a lawyer practising in Freiburg and Ms Anna-Maria Getoš, the applicant’s sister.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 18 October 2006, between 5 and 6 p.m., the applicant received a telephone call from the police and was ordered to come to the Osijek Police Department in connection with the suspicion that she had committed war crimes against the civilian population. At about 8 p.m. on the same day the applicant, accompanied by her father, arrived at the Osijek Police Department. The applicant was immediately separated from her father and taken to an interrogation room. She was kept there and questioned continually by the police for fifty-three hours and forty minutes, until about 1.40 a.m. on 21 October 2006. During the first twenty-four hours the applicant was detained by the police under Article 97 of the Code of Criminal Procedure.

Meanwhile, at 1.30 a.m. on 19 October 2006, during the applicant’s police interrogation and in her absence, an investigation judge of the Osijek County Court ordered the applicant’s further police detention for twenty-four hours, until 1.30 a.m. on 21 October 2006, under Article 98 § 1 of the Code of Criminal Procedure. The relevant part of the decision reads:

“In the submission ... of 19 October 2006 the Osijek-Baranja Police Department, Criminal Police Division, informed this investigation judge that police interrogation of the suspect Gordana Getoš-Magdić had been carried out in connection with the criminal offence set out in Article 120 § 1 of the Criminal Code, committed in the territory of the city of Osijek in 1991 and 1992.

They allege that Gordana Getoš-Magdić was arrested on 19 October 2006 at 1.30 a.m. in connection with a reasonable suspicion that she had committed the said criminal offence and that ... several other members of the [military] squad under her command had also been arrested; [they] were giving their statements on fresh relevant facts and indications, which additionally confirmed the reasonable suspicion that Gordana Getoš-Magdić had committed the said criminal offence; the identification of other members of that squad was also underway, as was identification of the killed individuals whose identity had not yet been established, for all of which the first twenty-four hours after the arrest did not suffice. Therefore, they ask that the police custody be extended.

The request is well-founded.

The documents in the case-file of this court, no. Kio-170/06, which also contains the police case-file ..., show that a reasonable suspicion that Gordana Getoš-Magdić had committed the criminal offence with which she has been charged arises from the defence given by M.S. ...

Since a police investigation has been carried out in order to establish the identity of the other member of the [military] squad under the command of Gordana Getoš-Magdić and since several members of that squad have also been arrested and the interviews with them are ongoing, and since it is necessary to identify the victims ..., it is obvious that the first twenty-four hours following the arrest could not suffice for these tasks and that a further twenty-four hours of police custody is necessary and sufficient for collecting [further] information on the evidence. In respect of the suspect Gordana Getoš-Magdić, the grounds for detention under Article 102 § 1(2) of the Code of Criminal Procedure exist for now because there is a reasonable suspicion that, in order to exculpate herself, she could hinder the criminal proceedings by suborning witnesses. Grounds for detention also exist under Article 102 § 1(4) of the Code of Criminal Procedure since the criminal offence [held against her] comes within the category of offences set out in Article 181 of the Code of Criminal Procedure, that is, the criminal offence under Head XII of the Criminal Code, liable to imprisonment of twenty years. In view of the fact that [the charges involve allegations of] liquidation by firearms, after which the corpses were thrown into the river Drava, actions typical of an execution, this court finds that these [factors] represent grave circumstances of the offence, which entail a requirement of detention ...”

On 21 October 2006 at about 1.40 a.m. the applicant was brought before an investigation judge of the Osijek County Court for the first time.

On 22 October 2006 the investigation judge of the Osijek County Court ordered that the applicant and four other suspects be detained for a further month, until 1.30 a.m. on 19 November 2006. The relevant part of the decision reads:

“Since it is necessary to interview a large number of witnesses during the investigation, many of whom are members of the Croatian Army, that is, colleagues of the defendants, this court finds that there exists a reasonable suspicion that the defendants, if at large, might suborn these witnesses; this meets the conditions for detention under Article 102 § 1(2) of the Code of Criminal Procedure.

Furthermore, the first to fifth defendants are suspected of having committed the criminal offence set out in Article 120 § 1 of the Criminal Code, which is liable to twenty years’ imprisonment, in that they illegally arrested some individuals of Serbian origin, then illegally interrogated and ill-treated them, after which they bound their hands and mouths with self-adhesive tape and took some of them to the banks of the river Drava, where they killed them with shots from firearms and threw their bodies into the river Drava. Therefore, since these are actions typical of an execution, this court finds that these circumstances amounted to specifically grave circumstances of the offence, which entail a requirement of detention ...”

On 22 October 2006 the applicant was transferred to Zagreb Prison. The proceedings continued before the Osijek County Court, about three hundred kilometres away.

On 25 October 2006 the applicant lodged an appeal against the decision of 22 October 2006 ordering her detention. She argued that she had co-operated with the investigation bodies and admitted that she had committed the offences held against her, and that therefore the same purpose might have been achieved through other measures such as house detention, bail or preventive measures. Furthermore, she was ready to hand over her passport. She further stressed her young age and that she was mother of a minor child who, owing to her age and health, had constant need of a mother’s presence, and that she, the applicant, contributed to the subsistence of her family.

On 31 October 2006 the appeal was dismissed by a three-judge panel of the Osijek County Court. The relevant part of the decision reads:

“Contrary to the allegations in the defendants’ appeals, the investigation judge correctly found that the legal grounds for the defendants’ detention under Article 102 § 1 (2 and 4) of the Code of Criminal Procedure did exist.

There is a reasonable suspicion that the defendants committed a criminal offence against humanity and international law, namely war crimes against the civilian population as set out under Article 120 § 1 of the Criminal Code. A decision by the investigation judge ... of 22 October 2006 ordered that an investigation be carried out in respect of the said defendants, in connection with a reasonable suspicion that in the period from the middle of October to the end of December 1991 in Osijek, during the defence of the city from the joint aggression by the Y[ugoslav] P[eoples’] A[rmy] and rebels from the local Serbian population against the constitutional order of the Republic of Croatia, they [acted] contrary to Article 3 of the [Fourth] Geneva Convention Relative to the Protection of Civilian Persons in Time of War and Article 4 §§ 1 and 2(a), Article 5 § 3 and Article 13 § 2 of the Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), in that B.G., as the secretary of the Secretariat for Peoples’ Defense of the Osijek Municipality, acting as the de facto, and from 7 December 1991 also as the formal commander-in-chief of the defense of Osijek City, ordered the first defendant I.K. and the ... defendant Gordana Getoš-Magdić to form a [military] squad of dependable and loyal persons for special reconnaissance-sabotaging tasks, which would be under his supervision. After they had formed such a squad, on a number of occasions he illegally ordered them to arrest civilians of Serbian origin, and ordered their ill-treatment and killing; the first defendant, I.K., as the squad commander, and the ... defendant, Gordana Getoš-Magdić, as commander of one of the subdivisions of the squad, accepted and carried out or transmitted these orders to the members of the squad ...

The investigation judge’s order accepted a request by the Osijek County State Attorney’s Office to hear evidence from thirty-one persons in connection with the committal of the said criminal offences ... Furthermore, the investigation order states that some of these witnesses had been members of the same squad as the defendants ... None of the witnesses has been heard so far. Therefore, the investigation judge’s conclusion that, once at large, the defendants might hinder the criminal proceedings by suborning witnesses is justified. There therefore exists the legal ground for detention under Article 102 § 1 (2) of the Code of Criminal Procedure.

Furthermore, in view of the manner in which the criminal offences held against the defendants were committed, and because of a reasonable suspicion that they had committed the criminal offence of war crimes against the civilian population, carrying a sentence of twenty years’ imprisonment, and in view of the illegal arrests, interrogations and ill-treatment, binding of hands and mouths [of the victims] with self-adhesive tape and subsequent liquidation of a large number of civilians, the investigation judge correctly found that these circumstances, taken together, represented exceptionally grave circumstances of the offence and that detention was necessary because the legal grounds set out in Article 102 § 1(4) of the Code of Criminal Procedure had been fulfilled.”

On 17 November 2006 the investigating judge of the Osijek County Court extended the detention of the applicant and four other defendants until 19 January 2007, again on the grounds set out in Article 102 § 1(2 and 4) of the Code of Criminal Procedure.

On 22 December 2006 the applicant was transferred to Osijek Prison.

On 18 January and 17 February 2007 the investigation judge of the Osijek County Court again extended the detention of the applicant and four other defendants, on the grounds set out in Article 102 § 1(2 and 4) of the Code of Criminal Procedure.

On 16 April 2007 the Osijek County State Attorney’s Office brought an indictment against the applicant in the Osijek Municipal Court, on charges of having committed war crimes against the civilian population. On the same day a three-judge panel of the Osijek County Court ordered the applicant’s further detention under Article 102 § 1(4) of the Code of Criminal Procedure. The relevant part of the decision reads:

“The defense counsel for the third defendant, Gordana Getoš-Magdić, relied in particular on the health ailments of the defendant and her minor child. She argued that the same aim could have been achieved with preventive measures.

...

In the indictment of the Osijek County State Attorney ... of 16 April 2007 the defendants ... were accused of having ordered killings and ill-treatment of members of the civilian population, ...and thus of committing the criminal offence against humanity and international law – war crimes against the civilian population – set out in Article 120 § 1 of the Criminal Code. The factual description from the indictment alleged that in November and December 1991 in Osijek, in the period when the city was being defended from the joint aggression by the Y[ugoslav] P[eoples’] A[rmy] and the para-military formations of the rebel local Serbian population against the constitutional order of the Republic of Croatia, the defendants had acted contrary to Article 3 of the [Fourth] Geneva Convention Relative to the Protection of Civilian Persons in Time of War as well as Article 4 §§ 1 and 2(a), Article 5 § 3 and Article 13 § 2 of the Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), in that the first defendant B.G., initially as the secretary of the Secretariat for Peoples’ Defense of the Osijek Municipality and from 7 December 1991 as the commander-in-chief of the defense of Osijek City, the second defendant I.K. as a commander of the special [military] squad for reconnaissance and sabotaging tasks, the third defendant Gordana Getoš-Magdić as a commander of one of the subdivisions of that squad and the fourth to seventh defendants as members of that subdivision, had participated in illegal arrests, kidnappings, inhuman treatment and killings of civilians of Serbian origin. In November and December 1991 in Osijek, they had arrested an unknown man, and bound with self-adhesive tape J.G., M.K., S.V., an unknown woman and B.G., and taken them to the banks of the river Drava. Once there they had shot them in the head with firearms and thrown their bodies into the river. They also took B.L. and A.Š. to 30 Dubrovačka Street, where they had struck A.Š. all over his body. and then taken them to the banks of the Drava where they shot them with firearms and threw them into the river. They had beaten M.S., thus causing him multiple injuries and then tied him with rope and killed him by throwing him from a train bridge into the Drava. They had arrested P.L., taken him to the banks of the Drava, shot with firearms and thrown [his body] into the river. They had arrested R.R., taken him to 30 Dubrovačka Street and then to the banks of the Drava, where they had shot him at least twice from firearms and thrown him into the river, but he had nevertheless survived; [the defendants] had thus committed the criminal offence of war crimes against the civilian population under Article 120 § 1 of the Criminal Code.

The existence of a reasonable suspicion that the defendants committed a criminal offence is a general ground for ordering and extending their detention.

The said criminal offence is liable to at least five years’ imprisonment or imprisonment of twenty years. Taken together, the above circumstances, of particularly brutal and ruthless actions by the defendants against the victims, represent especially grave circumstances of the offence, which require that the detention against the defendants ... be extended ... under the legal grounds set out in Article 102 § 1(4) of the Code of Criminal Procedure.

...”

In her appeal of 19 April 2007 the applicant argued, inter alia, that the court had failed to give adequate reasons for the necessity of her detention, particularly in view of her difficult health and family situation. She relied on medical documentation showing that she had suffered from post-traumatic stress disorder since 1999, together with back problems and epilepsy. She also relied on medical documentation showing that her daughter, born in 1999, suffered from nightmares.

On 30 April 2007 a three-judge panel of the Osijek County Court extended the applicant’s detention on the grounds set out in Article 102 § 1(4) of the Code of Criminal Procedure, giving the same reasons as in its decision of 16 April 2007.

In her appeal of 5 May 2007 the applicant reiterated her previous arguments.

On 11 May 2007 the Supreme Court dismissed the appeal. The relevant part of the decision reads:

“At this stage of proceedings, when the indictment has been lodged ... this court considers that there is a high degree of suspicion that the defendants committed the criminal offences with which they have been charged. The decision on their further detention must assess exclusively the elements which, judging from the facts alleged in the indictment, might lead to the conclusion that in this case ... the manner in which the offence was committed or particularly grave circumstances of the offence justify detention under Article 102 § 1(4) of the Code of Criminal Procedure.

The defendants are correct in their assertion that the gravity of the offence in itself could not suffice to conclude that there are especially grave circumstances which make detention necessary. However, the first-instance court found that there existed such circumstances on the basis of the concrete facts and acts held against the defendants. The criminal offence of war crimes against the civilian population may be committed by various acts. The defendants have been charged with the gravest acts, involving illegal arrests, ill-treatment and killings of civilians who had not given any cause for such acts. All the victims were citizens of Osijek, whose security the first defendant was under an obligation to defend, a fact correctly pointed out by the first-instance court when assessing the gravity of the acts held against him.

The Supreme Court considers the finding of the first-instance court that there existed particularly grave circumstances of the offence to have been correct. The charges against the defendants include that, on the order of the first defendant B.G., the defendants I.K. and Gordana Getoš-Magdić formed a [military] squad for special reconnaissance-sabotaging tasks and ordered the members of the squad to illegally arrest civilians of Serbian and other national origins, torture and kill them, which orders the defendants M.S., D.K., T.V. and Z.D. carried out. Thus they, tempore criminis, organized the liquidation of the civilian population in that territory in that they systematically arrested, detained, tortured and killed individuals. The treatment of victims was exceptionally brutal and utterly inhuman. Some of them had been severely beaten, bound with self-adhesive tape and then taken to the banks of the river Drava, where the executions had been carried out by shots from firearms to their heads and bodies and then throwing the bodies into the river. In the case of the victim R.R., who had survived the shooting in his head and being throwing into the river, an additional order that he be killed in hospital had been issued.

This court also considers that the above acts by the defendants represent particularly grave circumstances, which exceeded the ordinary forms of such crimes. Further detention of the defendants on the grounds under Article 102 § 1(4) of the Code of Criminal Procedure is therefore justified.

The defendants’ assertion that the criminal proceedings could be conducted without their detention because the same purpose could have been achieved with other preventive measures cannot be accepted. The aim of detention under Article 102 § 1(4) of the Code of Criminal Procedure is not to remove possible obstacles for efficient and unhindered conduct of the criminal proceedings as is the case with the grounds for detention set out in Article 102 § 1(1, 2 and3) of the Code of Criminal Procedure. The aim of detention under [Article 102 § 1(4) of the Code of Criminal Procedure] is that the persons whose acts cause special moral reproach should not be kept at large, which could influence the public so as to diminish trust in the criminal justice system.”

On 29 May 2007 the Supreme Court ordered that the further proceedings be conducted before the Zagreb County Court.

On 11 July 2007 a three-judge panel of the Zagreb County Court extended the applicant’s detention on the grounds set out in Article 102 § 1(4) of the Code of Criminal Procedure. This decision was quashed by the Supreme Court on 27 July 2007 because the defense counsels of the defendants had not been duly summoned to the hearing on the defendants’ detention.

On 2 August 2007 a three-judge panel of the Zagreb County Court extended the applicant’s detention. This decision was upheld by the Supreme Court on 21 September 2007. On 23 November 2007 the Zagreb County Court extended the applicant’s detention. This decision was upheld by the Supreme Court on 12 December 2007. They all relied on the particularly grave circumstances of the offence held against the applicant under Article 102 § 1(4) of the Code of Criminal Procedure.

On 13 December 2007 the applicant lodged a request that her detention be lifted. She relied, inter alia, on Article 5 of the Convention, arguing that the courts ordering and extending her detention had not made any relevant assessment as to her personal contribution to the offences with which she had been charged and her personal situation, in particular her health.

On 11 January 2008 the detention of the first defendant B.G. was lifted because he had been elected to Parliament and therefore had immunity.

On 12 February 2008 the Zagreb County Court extended the applicant’s detention and at the same time dismissed her request that the detention be lifted. The relevant part of the decision reads:

“A reasonable suspicion that the third [the applicant], fifth and sixth defendants committed the criminal offences defined in the indictment still exist, which is a general statutory requirement under Article 102 § 1 of the C[ode of] C[criminal] P[rocedure] for extending the detention.

The third, fifth and sixth defendants have been indicted for criminal offences against humanity and international law – war crimes against the civilian population - under Article 120 § 1 of the Criminal Code, liable to a minimum of five years’ imprisonment or imprisonment of twenty years; this is one of the criteria for detention under Article 102 § 1(4) of the C[ode of] C[criminal] P[rocedure].

Furthermore, the third, fifth and sixth defendants have been indicted of the gravest acts which could possibly be committed against the civilian population, namely illegal arrests, torture and killings of civilians. The civilians were tortured and killed with no reason and the motive was national hatred.

The charge against the third defendant, Gordana Getoš-Magdić, states that she, together with the second defendant, I.K., on the order of the first defendant B.G., formed a [military] squad for special reconnaissance-sabotaging tasks and illegally arrested civilians of Serbian and other national origin, tortured and killed them, and transmitted such orders to their subordinates in the said squad... The victims were severely beaten and then taken to the banks of the river Drava, bound with self-adhesive tape and killed by shooting at their heads from firearms; their bodies were then thrown into the river.

A further charge against the third defendant, Gordana Getoš-Magdić, states that, together with the sixth defendant T.V. and the seventh defendant, Z.D., she took B.L from his family house ... , arrested him and detained him in a house at 30 Dubrovačka Street.

...

In respect of the victim R.R., who had been shot in the head at the order of the first defendant B.G. but nevertheless survived, it is alleged that the third defendant Gordana Getoš-Magdić ordered that he be killed in hospital.

The above descriptions of the acts of the third, fifth and sixth defendants contain a number of circumstances which in their character and intensity fall within the category of particularly grave circumstance of the offence; for this reason, detention under Article 102 § 1(4) of the C[ode of] C[criminal] P[rocedure] is still necessary.

...

Judging from the gravity of the offences with which they are charged and the sentences that could be expected on the basis of the information in the case file, the length of time that the third, fifth and sixth defendants have so far been detained does not appear disproportionate to a degree that is decisive in ordering their further detention.

The request of the third defendant Gordana Getoš-Magdić that her detention be replaced by home arrest is not well-founded, because the measure of home arrest has not been prescribed as an alternative for detention under Article 102 § 1(4) of the C[ode of] C[criminal] P[rocedure].

Section 3 of the Rules on Home Arrest (Official Gazette no. 3 of 7 January 2008) provides that the freedoms and rights of a detainee in home arrest may be restricted to the extent needed for the fulfillment of the purpose for which home arrest has been ordered; to prevent the detainee from absconding; to prevent repetition, completion or commitment of a criminal offence he or she has been threatening to do; to prevent communication between the detainee and other persons, save for those he or she lives with or who provide him or her with the provisions necessary for living.

Since the allegations in the request that the detention be lifted are not of such a nature as to justify the lifting of detention, in the opinion of this panel the conditions for ordering an alternative preventive measure have not yet been fulfilled, the request has to be dismissed ...”

In her appeal of 14 February 2008, the applicant reiterated her arguments from her previous request that the order of her detention be lifted. On 22 February 2008 the Supreme Court dismissed the applicant’s appeal. It reiterated its previous conclusions as to the gravity of the offence and the particularly grave circumstances of the offence, and further established as follows:

“The acts of the defendants as described above show a high degree of ruthlessness, brutality and cruelty towards civilians, which resulted in the grave consequences of the killing of these persons. Therefore, this appellate court finds that such acts by the defendants significantly exceeded the usual acts and consequences of such offences and in their intensity and character represent particularly grave circumstances of the offence, which make detention under Article 102 § 1(4) of the C[ode of] C[criminal] P[rocedure] still necessary.

The arguments of the defendant Gordana Getoš-Magdić ... that the facts in the indictment had not been proven are not of decisive importance for extending her detention, because it suffices that there exists a relevant degree of reasonable suspicion; this follows from the indictment and the evidence so far presented, although the final assessment of all evidence and the defendants’ defence and the subsequent assessment of whether the relevant facts have or have not been proven in respect of the criminal offences at issue is in the hands of the trial panel...

Contrary to the arguments advanced by defendant Gordana Getoš-Magdić, the provisions of the Code of Criminal Procedure concerning detention are not contrary to the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) since Article 5 of the Convention provides that the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing of an offence of fleeing after having done so, which is not contrary to Article 102 1 of the C[ode of] C[criminal] P[rocedure].

The health condition of the defendant Gordana Getoš-Magdić does not exclude the existence of the statutory ground for extending her detention, because any necessary medical care could be provided in prison or, exceptionally, outside the prison. Likewise, any necessary medical, psychological or other assistance can be given to her child in adequate institutions, staffed by appropriate experts.

Contrary to the objections of the defendant Gordana Getoš-Magdić ... the preventive measures under Article 90 of the C[ode of] C[criminal] P[rocedure] could not fulfil the aim of the extended detention [under Article 102 § 1(4) of the Code of Criminal procedure], nor can this measure be replaced by house arrest, because Article 102 of the C[ode of] C[criminal] P[rocedure] does not provide for such an option.”

On 25 March 2008 the applicant lodged a constitutional complaint arguing, inter alia, that the duration of the investigation and of her detention had exceeded a reasonable time and that her detention could no longer been extended solely on the ground of the gravity of the charges against her.

On an unspecified date the applicant again lodged a request that her detention be lifted.

On 22 April 2008 a three-judge panel of the Zagreb County Court extended the applicant’s detention and dismissed her request. It reiterated its previous reasoning from its decision of 12 February 2008.

In her appeal of 26 April 2008 the applicant again relied on her family and health situation as a ground for lifting her detention. On 7 May 2008 the Supreme Court dismissed the appeal.

On 29 May 2008 the Constitutional Court declared the applicant’s constitutional complaint of 25 March 2008 inadmissible, on the ground that the impugned decisions had ceased to exist since, in the meantime, a fresh decision extending the applicant’s detention had been issued.

In her constitutional complaint of 9 June 2008 the applicant reiterated her arguments from her previous constitutional complaint of 25 March 2008.

On 4 July 2008 a three-judge panel of the Zagreb County Court extended the applicant’s detention on the same grounds as before. On 28 July 2008 the Supreme Court upheld this decision.

The applicant lodged a constitutional complaint in which she reiterated her previous arguments.

On 17 September 2008 the Constitutional Court accepted the constitutional complaint and quashed the decisions of the Zagreb County Court of 4 July 2008 and of the Supreme Court of 28 July 2008, on the ground that the lower courts had failed to apply the principle of proportionality when assessing the necessity and adequacy of the applicant’s further detention. It further held that:

“Owing to their particular gravity and the possible public reaction, certain criminal offences may cause public unrest which could justify detention. In the view of this court, when assessing whether further detention of an applicant is justified under the grounds set out in Article 102 § 1(4) of the C[ode of] C[riminal] P[rocedure], the gravity of the offence in itself does not suffice but, in addition, the [above] ground for detention must exist in reality. The extension of detention is not to amount to the anticipation of a prison term.

In the opinion of this Court, the significance of the initial grounds for the applicants’ detention, in view of the passage of time and the fact that the applicants have so far been detained for almost two years, does not suffice to justify further extension of their detention.

The Constitutional Court considers that in the present case (apart from the fact that the detention has already lasted for too long) the public interest in extending the applicants’ detention during the criminal trial against them – in which their guilt for the incriminated criminal offences has yet to be decided – does not have more weight than the right of personal liberty guaranteed by the Constitution and the European Convention on Human Rights.

...”

The applicant was released on the same day.

B. Relevant domestic law

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

Article 97

“(1) The police shall immediately, or within twenty-four hours at the latest, bring the arrested person to an investigation judge or release him or her. Reasons shall be given for any delay.

...”

Article 98

“(1) The investigation judge may, at the request of police or the State Attorney, in a written and reasoned decision, order detention of the arrested person for twenty-four hours where the investigation judge has established that there is a well-founded suspicion that the arrestee has committed the criminal offence with which he or she has been charged, and where the grounds under Article 102 § 1(1 and 2) of this Act exist and detention is necessary in order to establish identity, verify alibi, collect evidence or remove a serious risk for the lives or health of persons or for assets of significant value ... Exceptionally, the investigation judge may, at the request of police or the State Attorney, order that the arrestee be kept in police custody where [he or she has been charged] with criminal offences under Article 181 of this Act which are liable to a prison term exceeding five years.

(2) The investigation judge may, ex officio or at the request of the State Attorney, order that the arrestee be kept in custody for up to forty-eight hours where he or she considers that there is a founded suspicion that the arrestee has committed the criminal offence with which he or she has been charged and that there exist grounds under Article 102 § 1 of this Code, where the State Attorney has not brought a request for an investigation or an indictment. Where the State Attorney fails to bring a request for investigation or an indictment within forty-eight hours, the arrestee shall be released.

(3) Where the arrestee has been kept in custody under paragraph 1 of this Article, the investigation judge may order custody under paragraph 2 of this Article for a further twenty-four hours.

...”

8. General Provisions on Detention

Section 104

(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 ex officio whether the grounds and legal conditions for detention have ceased to exist, in which case detention shall immediately be lifted.

9. Grounds for Ordering Detention

Section 105

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

...

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

The relevant provisions regulating the duration of detention provide as follows:

Section 110 provides, inter alia, that detention ordered by an investigation judge may last one month and may be extended, for justified reasons, by a three-member judicial panel for two more months and subsequently for another three months. However, the maximum duration of detention during the investigation shall not exceed six months.

Section 111 provides, inter alia, that following an indictment the detention may last until the judgment becomes final and subsequently until the decision on serving the prison sentence becomes final. During that period a three-member judicial panel shall assess every two months whether the criteria for detention still exist.

Section 114

(1) Until the adoption of the first-instance judgment, detention on remand may last for a maximum of:

1. six months for offences carrying a sentence of a statutory maximum of three years’ imprisonment;

2. one year for offences carrying a sentence of a statutory maximum of five years’ imprisonment;

3. eighteen months for offences carrying a sentence of a statutory maximum of eight years’ imprisonment;

4. two years for offences carrying a sentence of more than eight years’ imprisonment.

(2) In cases where a judgment has been adopted but has not yet entered into force, the maximum term of detention on remand may be extended for one sixth of the term referred to in subparagraphs 1 to 3 of paragraph 1 of this provision until the judgment becomes final, and for one fourth of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision.

(3) Where the first-instance judgment has been quashed on appeal, following an application by the State Attorney and where important reasons exist, the Supreme Court may extend the term of detention referred to in subparagraphs 1 to 3 of paragraph 1 of this provision for another six months and the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision for another year.

(4) Following the adoption of the second-instance judgment against which an appeal is allowed, detention may last until the judgment becomes final, for a maximum period of three months.

(5) A defendant placed in detention and sentenced to a prison term by a final judgment shall remain in detention until he is committed to prison, but for no longer than the duration of his prison term.

2. Section 122 of the Basic Criminal Code (Osnovni krivični zakon, Official Gazette no. 31/1993) reads as follows:

War Crimes against Prisoners of War

Whoever, in violation of the rules of international law, orders the killing, torture or inhuman treatment of prisoners of war, including biological, medical or other scientific experiments, the removal of tissue or organs for transplantation, or the causing of great suffering or injury to their physical integrity or health; or compels a prisoner of war to serve in the forces of hostile power, or deprives a prisoner of war of the right to a fair trail; or commits any of the foregoing acts shall be sentenced to not less than five years’ imprisonment or to twenty years’ imprisonment.

COMPLAINTS

The applicant complained under Article 5 §§ 1 and 3 of the Convention that her initial detention between 18 October 2006 at 8 p.m. and 21 October at 1.40 a.m. had not been entirely covered by the decisions ordering and extending her detention; that after her arrest she had not been brought promptly before a judge; and that her detention had lasted for an unreasonably long period.

She also complained that the proceedings concerning the lawfulness of her detention were not in conformity with the guarantees of under Article 5 § 4 of the Convention.

She further complained under Article 6 §§ 1 and 3 of the Convention about the length of the criminal proceedings against her and about the fact that for a period of two months she had not been brought from Zagreb Prison to attend the hearings held before an investigation judge of the Osijek County Court.

She also complained that the wording of the national courts’ decisions extending her detention had violated the presumption of innocence.

Lastly, the applicant complained that she had been discriminated against, in that B.G.’s detention had been lifted, even though he had been charged as the principal perpetrator in the criminal proceedings against seven defendants.

THE LAW

1. The applicant firstly complained that her initial detention from 18 October 2006 at 8 p.m. to 21 October 2006 at 1.40 a.m. had not been entirely covered by the decisions ordering and extending her detention. She further complained that, following her arrest, she was not brought promptly before a judge or other officer authorised by law to exercise judicial power, that her right to trial within a reasonable time or release pending trial had not been respected and that the gravity of the offences she had been charged with could not be regarded as relevant and sufficient reasons for the domestic courts to repeatedly extend her detention. She relied on Article 5 of the Convention, the relevant part of which provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of these complaints to the respondent Government.

2. The applicant also complained that the procedures concerning her appeals against the detention orders issued against her had fallen foul of the requirements of Article 5 § 4 of the Convention, which reads as follows:

“4. 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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

3. The applicant also complained about the length of the criminal proceedings against her and that in the period between 22 October to 22 December 2006 she was not taken from Zagreb prison to attend the hearings held before the investigation judge of the Osijek County Court. She relied on Article 6 §§ 1 and 3 of the Convention, the relevant part of which reads:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

As regards the complaint about the length of proceedings at the investigation stage, the Court notes that the period to be taken into account commenced on 18 October 2006, when the applicant was arrested, and ended on 16 April 2007, when the applicant was indicted, thus lasting about six months. The documents submitted show that the case is indeed a very complex one, involving a number of very serious charges against seven defendants and that a number of witnesses had to be heard.

In the Court’s view the period of six months for conducting an investigation in the present case appears to be in conformity with the reasonable time requirement under Article 6 § 1 of the Convention.

As regards the complaint about the length of proceedings before the trial court, the Court notes that in Croatia there exist a remedy in respect of the length of such proceedings. The applicant could, firstly, have lodged a complaint with the Supreme Court about the length of the proceedings conducted before the Osijek County Court and subsequently the Zagreb County Court, and could ultimately also have brought a constitutional complaint in that respect (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002‑VII).

However, she failed to use these remedies.

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

As regards the complaint concerning the fact that in the period between 22 October to 22 December 2006 the applicant was not taken from Zagreb Prison to the Osijek County Court in order to attend hearings before the investigation judge of that court, the Court reiterates that it is called to examine whether the criminal proceedings against the applicant, in their entirety, were fair (see, among other authorities, Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no. 275 and Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247‑B).

In the present case the criminal proceedings against the applicant are at present pending before the trial court and it is yet to be seen how they will end. Only after the criminal proceedings against the applicant have been completed will the Court be able to examine the applicant’s complaint.

Since the criminal proceedings against the applicant are still pending, this part of the application is premature. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention.

4. The applicant further complained that the domestic courts had violated the presumption of innocence because in their decisions ordering and extending her detention they had repeatedly stated that she had participated in ill-treatment and killings of civilians and that the motive for such acts had been national hatred. She relied on Article 6 § 2 of the Convention, which provides:

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

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).

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).

As to the present case, the Court notes that the domestic courts justified the applicant’s pre-trial detention by 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. They stressed that the charges brought against the applicant alleged that she had committed the offences in question in a particularly merciless and ruthless manner.

In their wording the domestic courts relied on the bill of indictment stating that there was a justified suspicion that the applicant actually had committed the offences in question. Thus they solely relied on the charges brought against her. It follows that the reasoning of the courts’ decisions concerning the applicant’s detention on remand did not amount to finding the applicant guilty of the charges brought against her in violation of the presumption of innocence under Article 6 § 2 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

5. Lastly, the applicant complained that she was discriminated against because the detention of the first defendant had been lifted while she had remained in detention for a further eight months. She relied on Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court reiterates that, regarding the scope of the guarantee provided under Article 14, according to its established case-law, a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, for example, Gaygusuz v. Austria, 16 September 1996, Reports 1996-IV, § 42).

The Court notes that the detention order against B.G. was lifted on a very specific ground, namely that he had been elected to Parliament and that a decision lifting his immunity would therefore have been required in order to detain him. It follows that his position was not comparable to the position of the applicant and that the distinction between him and the applicant is therefore not discriminatory, as there was an objective and reasonable justification for lifting the detention order against B.G., although he was the principal accused in the criminal proceedings at issue. Consequently, the difference in treatment between B.G. and the applicant does not amount to discrimination within the meaning of Article 14 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning legality of her initial detention from 18 October 2006 at 8 p.m. to 21 October 2006 to 1.40 a.m.; her right to be brought promptly before a judge or other officer authorised by law to exercise judicial power following her arrest; her right to trial within a reasonable time or to release pending trial; the complaint that the reasons relied on by domestic courts for extending the applicant’s detention were not relevant and sufficient throughout the detention; as well as the complaint that the proceedings concerning the lawfulness of her detention were deficient;

Declares the remainder of the application inadmissible.

Søren NielsenChristos Rozakis
RegistrarPresident

 

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