FIRST SECTION
DECISION
Application no. 79249/13
Danijel KLASIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 22 October 2019 as a Committee composed of:
Krzysztof Wojtyczek, President,
Armen Harutyunyan,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 9 December 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Danijel Klasić, is a Croatian national, who was born in 1976 and lives in Petrinja. He was represented before the Court by Mrs N. Kovačević, a lawyer practising in Sisak.
2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background of the case
4. On 12 August 2008 L.S., an employee of the Topolovec post office, lodged a criminal complaint with the Sisačko-Moslavačka Police Department at Sisak police station (Policijska uprava sisačko-moslavačka, Policijska postaja Sisak; hereinafter “the Sisak police”), alleging that at about 10.15 a.m. that day, a masked and armed man had robbed the Topolovec post office.
5. At 6.40 a.m. on 30 September 2008 the applicant was arrested and taken to Sisak police station on suspicion of having committed the robbery. The arrest report stated that the applicant had been informed of the reasons for his arrest and his legal rights. He had requested the presence of his lawyer, D.Š., who had been called three times but had not answered the phone. The report was signed by the applicant.
2. The applicant’s questioning by the police on 30 September 2008
(a) The applicant’s version of events
6. According to the applicant, following his arrest he was taken to Sisak police station, where he was held in a locked room from 7 a.m. until almost noon. During that time, he was psychologically harassed and informally interviewed by four police officers in connection with the robbery. The informal interview was conducted without the presence of a defence lawyer, even though the applicant repeatedly asked that his lawyer D.Š. be present and gave the police his telephone number.
7. At around noon, a defence lawyer, A.B., who had not been chosen by the applicant, showed up. The police officer then started dictating the written record of the applicant’s questioning, which the lawyer signed despite the fact that she had not been present when the actual questioning had taken place. The applicant also signed the record, without knowing what he was signing, because he was afraid of the police.
(b) The Government’s version of events
8. According to the Government, after the applicant had been taken to Sisak police station, he was informed of the reasons for his arrest and his legal rights. The applicant requested that lawyer D.Š. be informed of his arrest, whereupon the police attempted to contact him three times, but D.Š. failed to respond to their calls.
9. Meanwhile, while the police officers were trying to reach D.Š., the applicant was kept at Sisak police station in an unlocked room otherwise regularly used by police officers for their daily tasks. There were two police officers present in the room. During that time the applicant gave a statement to the police officers of his own volition on the circumstances in which the criminal offence had been committed. None of the facts provided by the applicant to the police during that time was subsequently used in the criminal proceedings against him.
10. At 11.30 a.m., as his lawyer had been unavailable, the applicant was allowed to select a defence lawyer of his choice from a list of lawyers on duty, so he requested that defence lawyer A.B. from Sisak be invited.
11. A.B. was summoned and appeared at Sisak police station. The applicant’s formal questioning by the police began at 11.55 a.m. the same day and lasted until 1.15 p.m. During that time the applicant made a detailed confession to having robbed the Topolovec post office. The record was signed by both the applicant and his defence lawyer without any objections having been raised.
3. Questioning by an investigating judge and opening of an investigation
12. On 30 September 2008 an investigating judge of the Sisak County Court (Županijski sud u Sisku) ordered that the applicant be remanded in police custody for twelve hours, until 6.40 p.m. on 1 October 2008. On the same day the investigating judge heard two witnesses in the case.
13. At 1.30 p.m. on 1 October 2008 the investigating judge heard the applicant in the presence of a defence lawyer, N.K., hired for him by his parents. The applicant decided to remain silent. On the same day the investigating judge extended the applicant’s police custody for a further thirty-six hours, starting from 1 p.m. on that day.
14. At 1 p.m. on 2 October 2008, in the presence of his lawyer N.K., the applicant was again heard by the investigating judge and remained silent. The Sisak County Court then ordered that an investigation be opened against him.
4. Proceedings on indictment
15. On 24 November 2008 the Sisak County State Attorney’s Office (Županijsko državno odvjetništvo u Sisku) indicted the applicant in the Sisak County Court on charges of armed robbery.
16. On 25 November 2008 N.K. informed the court that her power of attorney had been withdrawn by the applicant. On 15 December 2008 the president of the Sisak County Court appointed lawyer A.B. to represent the applicant ex officio.
17. The applicant’s trial started on 16 February 2009. That court hearing was attended by A.B. as his defence counsel, but the applicant declared at the outset that he no longer wished to be represented by her, and instead gave his power of attorney to lawyer D.Š., also present at the hearing.
18. Further hearings were held on 18 and 20 February 2009.
19. At the fourth hearing in the case, held on 11 March 2009, the applicant’s lawyer for the first time presented the allegation that the applicant’s testimony to the police was unlawful evidence because the police had questioned him the entire morning without the presence of a defence lawyer and had subsequently drawn up a written record of his questioning. The applicant’s lawyer requested that A.B. be heard as to the circumstances of the applicant’s questioning by the police and proposed that his police statement be excluded from the case file. The court dismissed the application to exclude the police record, stating that the applicant had in fact been represented by a defence lawyer, A.B., and that both she and the applicant had signed the record without raising any objections. That decision was amenable to a separate appeal, but the applicant did not appeal.
20. At the next hearing held on 23 March 2009 the applicant, represented by D.Š., gave evidence. He denied the charges against him and asserted that the record of his questioning by the police of 30 September 2009 had been drafted by the police officers themselves, that he had not read it and that he had not known what he was signing. In the relevant part, he stated as follows:
“I did not say what is stated in the written record of [my] questioning [by the police] of 30 September 2008. That record was drafted by police officers. They copied the statements of other witnesses, namely an employee of the post office, and then they put it all on me, that is to say they wrote that I had said it. I was questioned between 7 a.m. and noon without a lawyer in a locked room in the presence of four police officers. At 12.15 p.m. a lawyer came, after which a police officer dictated the written record. I signed that record because I did not know what was going on, I did not know what I was signing and I did not read what had been written.”
21. The record of the court hearing states as follows:
“To a question by the Deputy State Attorney the accused answers that the police fabricated some parts of his ‘statement’, that is to say that the police led him to give answers which suited them.
To a question by the defence lawyer the accused answers that his questioning by the police was carried out in such a manner that he had no opportunity to speak. He consistently denied that he had committed the offence in question. He sat on a chair and four police officers were telling him that they had sufficient indication to indict him. He was mostly silent and at about 10 a.m. the police officers told him that they had sufficient evidence to indict his girlfriend S. as well, after which he started to cry and nod his head at all further questions.
To a further question by the defence lawyer the accused answers that he is scared of the police because in 1994 police officers had brutally beaten him up because of a fight with two youngsters.
To a further question by the defence lawyer the accused answers that he was not at all aware what he was signing, he did not read the written record, the lawyer present did not explain to him what was going on but only said that she was a friend of his family, a friend of his grandparents.
...”
22. The part of the record of the same hearing concerning the closing arguments of the applicant’s defence lawyer reads as follows:
“The defence lawyer in his closing arguments alleges that ... the evidence given by the accused on 30 September 2008 is unlawful and ... should have been excluded from the proceedings. [He states as follows]:
... questioning of the accused was carried out the entire morning in an ‘informal manner’ under the pretence of it being only an informal interview, in a locked room under psychological pressure [on the accused]. After that his ‘proper questioning’ under Article 177 (5) of the Code of Criminal Procedure was carried out by means of a police officer dictating the accused’s statement without letting the accused speak freely, and by then asking the accused to confirm the veracity of what he [the police officer] had dictated. [All this] could not be accepted as lawful evidence.
In such a situation an accused does not truly know when he is being informally interviewed and at what precise moment his proper questioning, which [should comply] with the rules of the Code of Criminal Procedure, has begun. Such a manner [of questioning] manipulates and restricts the accused’s rights. In my view this court should have verified these allegations by hearing the police officer who carried out [the accused’s] questioning, the officer who typed the record and the former defence lawyer. Since none of that has been done, I consider that the accused’s rights guaranteed by the Code of Criminal Procedure and the Constitution were not respected at that stage of the proceedings.
...”
23. On the same day the Sisak County Court found the applicant guilty as charged and sentenced him to three years’ imprisonment. In finding the applicant guilty, the first-instance court relied, inter alia, on the statement he had given to the police on 30 September 2008. The relevant part of the first-instance judgment reads:
“Having analysed the results of the evidence presented, both alone and as a whole, this court concludes without any doubt that the accused committed the offence in the manner stated in the operative part of this judgment.
The court’s conclusion is based on the accused’s statement given to the Sisak police on 30 September 2008 in the presence of a defence lawyer, when he [the accused] confessed to committing the criminal offence at issue, described at length and in detail the manner in which the offence had been committed, and explained why he had done so.
The accused’s allegation that the above-mentioned statement was drawn up by the police officers on the basis of previously taken witness statements is unfounded because the statement of the accused [to the police] contains many details about the manner in which the offence had been committed. The witnesses had no knowledge of such details and made no depositions in that respect ...
The accused’s allegations that the Sisak police’s written record of his questioning is unlawful evidence because the questioning was carried out without the presence of a defence lawyer and that the police officers themselves drew up the written record as it pleased them [and also put in the written record] a statement he had not made, are also unfounded. The written record of the accused’s questioning shows that the accused was questioned in the presence of a defence lawyer and the accused and the defence lawyer both signed the written record without any objections.”
24. On 17 April 2009 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske), which was dismissed as unfounded on 27 April 2010. The relevant part of the Supreme Court’s judgment reads as follows:
“The written record of the accused’s questioning on 30 September 2008 states that defence lawyer A.B. came at 11.55 a.m. and that the [applicant] gave his consent to be defended by her, and that the questioning was concluded at 1.15 p.m. After it had been established that the accused had no objections to the written record and that the defence lawyer had been present throughout his questioning, the record was signed by the police officer, the clerk, the accused and the defence lawyer.
Therefore, the written record shows that the accused’s questioning by the police was carried out in accordance with Articles 177 § 5 and 225 §§ 1, 2, 3 and 4 of the Code of Criminal Procedure. It is also important to stress that the accused ... did not allege that his confession had been extracted by force, threat or other means [of coercion], but only alleged that the written record had been fabricated by the police on the basis of statements given by some other persons and a lengthy informal interview that the police had conducted with him. If such allegations were true, then the accused, who did not allege that he had been unconscious or that any means of coercion had been applied, would not have signed the written record. Therefore, it is lawful evidence and it is also necessary to stress that the judgment does not rely to a significant extent on the accused’s confession to the police, but on extensive personal and material evidence.”
25. On 6 May 2013 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed a subsequent constitutional complaint lodged by the applicant as unfounded.
B. Relevant domestic law
26. The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005 and 71/2006) provides as follows:
Robbery
Article 218
“1. Anyone who, by using force against a person or threatening a direct attack on a person’s life or limb, takes away movable property from another with intent to unlawfully appropriate it shall be punished by a term of imprisonment of one to ten years.
2. If the perpetrator commits the robbery as a member of a group or a criminal organisation, or if, during the robbery, a weapon or dangerous instrument is used, the perpetrator shall be punished by a term of imprisonment of three to fifteen years.”
27. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006) in force at the material time read as follows:
Article 9
“(1) The courts’ decisions in criminal proceedings cannot be based on unlawfully obtained evidence (unlawful evidence).
(2) Unlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of the defence, the right to dignity, reputation, honour and respect for private and family life guaranteed under the Constitution, law and international law, and evidence obtained in breach of the rules of criminal procedure in so far as set out in this Code, as well as any other evidence obtained unlawfully.”
Article 78
“(1) Where this Code provides that a judicial decision cannot be based on certain evidence, the investigating judge shall, at the request of the parties or ex officio, exclude such evidence from the file before the conclusion of the investigation, or before he gives consent for the indictment to be preferred without an investigation (Article 191 paragraph 2). The decision of the investigating judge is amenable to an appellate review.
(2) After the decision [on the exclusion of evidence] becomes final, the excluded evidence shall be sealed in an envelope and the investigating judge shall keep it separate from other files, and it may not be consulted or used in the proceedings.
(3) After the investigation and after consent has been given to prefer the indictment without an investigation (Article 191 paragraph 2), the investigating judge shall also proceed in accordance with the provisions of paragraphs 1 and 2 of this Article in respect of all information which, in accordance with Article 174 paragraph 4 and Article 173 paragraph 3 of this Code, is given to the State Attorney or to police officers by citizens or by suspects who have been questioned contrary to the provisions of Article 177 paragraph 5 of this Code.”
Criminal investigations
Article 177
“(1) If there are grounds for suspecting that a criminal offence subject to public prosecution has been committed, the police shall take the necessary measures aimed at discovering the perpetrator, preventing the perpetrator or accomplice from fleeing or going into hiding, and discovering and securing traces of the offences and objects of evidentiary value, as well as collecting all information which could be useful for conducting criminal proceedings. ...
(2) In order to fulfil the duties referred to in paragraph 1 of this Article, the police may seek information from citizens, carry out polygraph tests, voice analyses, and the necessary inspections of means of transport, passengers and luggage, ... [and] implement measures necessary for the identification of persons and objects ... When facts and circumstances established in the course of carrying out [such duties] might be of interest to the criminal proceedings, an official record shall be made in respect of those facts and circumstances.
...
(4) When collecting information, the police cannot interview citizens in their capacity as accused persons, witnesses or expert witnesses. ...
(5) When collecting information, the police shall inform a suspect [of his or her rights] under Article 225 paragraph 2 of this Code. At the suspect’s request, the police shall allow him or her to hire a lawyer, and for that purpose they shall stop interviewing the suspect until the lawyer attends – at the latest three hours after the suspect asks for a lawyer. ... If the circumstances indicate that the chosen lawyer will not be able to attend within this period of time, the police shall allow the suspect to instruct a lawyer from the list of duty lawyers provided to the competent police authority by the county branches of the Croatian Bar Association ... If the suspect does not hire a lawyer, or if the requested lawyer fails to attend within the time allowed, the police authorities may resume interviewing the suspect ... The State Attorney has the right to be present during the questioning. The record of [any] statement given by the suspect to the police in the presence of a lawyer may be used as evidence in the criminal proceedings.”
Article 225
“...
(2) The accused shall be informed of the charges against him or her, and of his or her right not to present his or her defence or answer questions.
(3) The accused shall then be informed of his or her right to hire a defence lawyer of his or her own choosing ...”
COMPLAINT
28. The applicant complained that his police statement of 30 September 2008 had in fact been obtained without the presence of a defence lawyer and had later served as evidence in criminal proceedings against him.
THE LAW
29. The applicant relied on Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
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.
...”
A. The parties’ arguments
1. The Government
30. The Government claimed that while the applicant had been at the police station and before his defence counsel had arrived, there had been no violation of his rights guaranteed under Article 6. The applicant had given of his own free will a statement describing how the criminal offence had been committed. That testimony had not been used in any way in the criminal proceedings against him.
31. Following the arrival of A.B. as his defence counsel, the applicant had at no point complained to her about the manner in which he had been treated by the police before her arrival. Before giving his statement, the applicant had once again been instructed on his rights, following which he had freely given his testimony. The applicant was an adult, the owner of a small business and a father of three children. He had not been intoxicated and had been fully conscious at the time of his questioning. It was therefore hard to believe his allegations that he had not known what was happening at the police station, what he had been signing or when the formal questioning had begun.
32. The Government also explained that testimony was recorded essentially by having an official dictate the suspect’s statement to a clerk, but that such a manner of drafting records in no way indicated that the police officers had drafted the record themselves using information the applicant might have given to them prior to A.B.’s arrival. It was clear from the record that the testimony had been given by the applicant himself, as a number of details that were insignificant for the criminal offence could otherwise not have been known to the police. In any event, both the applicant and his lawyer had signed the record.
33. The Government also pointed out that the very next day and the day after, the applicant had been brought before the investigating judge, at which point he had been represented by another lawyer, N.K., hired by his parents. However, he had made no objections to his treatment by the police the previous day or to allegedly unlawfully obtained evidence. Although the decision on carrying out the investigation expressly stated that a reasonable suspicion had arisen, among other things, from the applicant’s defence, he had never appealed against that decision or complained that the police record of his questioning constituted unlawful evidence. Nor had the applicant ever complained about the fact that the indictment against him contained a reference to the same police record. All of the above would have given the applicant a timely opportunity to present his allegations that he had been unlawfully questioned by the police.
34. For the Government, raising the alleged unlawfulness of evidence at the very end of the court trial (namely at the fourth hearing) and proposing further witnesses indicated that the applicant’s goal had been to postpone the conclusion of the main hearing. His allegations on the manner in which the written record had allegedly been drafted had been incoherent. Nonetheless, the first and second-instance courts had examined his allegations and given valid grounds for rejecting them. The applicant had been legally represented throughout the proceedings, the trial court had heard seven witnesses proposed by him and he had been able to use available legal remedies.
35. In sum, the applicant’s trial as a whole had been fair and had involved all procedural guarantees, and the applicant’s police statement had not been used as the central grounds for his conviction.
2. The applicant
36. The applicant maintained that he had been unlawfully questioned by the police on the morning of 30 September 2008. Following his arrest, he had given the police the name and phone number of his lawyer D.Š., whom the police had allegedly been unable to reach, whereas D.Š. had claimed that he had had no missed calls on his phone that day.
37. After the police had failed to reach D.Š., they had not offered the applicant the opportunity to choose another lawyer; A.B. had simply shown up at the police station at 11.55 a.m. and signed the police record of the applicant’s questioning, which had already been finalised without the presence of a lawyer. A.B. had not consulted the applicant or advised him of his rights.
38. The applicant also argued that the domestic courts had refused to hear A.B. or the police officer who had taken the impugned statement, wrongly interpreting his request in this respect as a tactic to delay the proceedings.
B. The Court’s assessment
39. The relevant general principles have been set out in the cases of Beuze v. Belgium [GC], no. 71409/10, §§ 119-50, 9 November 2018, and Dvorski v. Croatia [GC], no. 25703/11, §§ 76-82, ECHR 2015.
40. The Court notes at the outset that the applicant contested the facts of the case as presented by the Government, claiming that his actual questioning on 30 September 2008 had taken place before the arrival of the duty lawyer and that the police officer in charge had later simply dictated the text to be inserted into the police report. While it is true that in practice, as explained by the Government, official police reports are indeed dictated by the police officer in charge based on the suspect’s answers to the questions posed by the police, the Court observes that the applicant had the right to object to the contents of that report or to complain that he had been exposed to pressure by the police prior to the arrival of the lawyer. However, he failed to do so and instead signed the police report without raising any objections.
41. The very next day, represented by another lawyer, N.K., hired by his parents, the applicant was brought before the investigating judge, at which point he decided to remain silent (see paragraph 13 above). Neither he nor his lawyer at that time raised any objections relating to his police statement of the previous day. The very same situation was repeated the following day (see paragraph 14 above).
42. Following his indictment, on 25 November 2008 the applicant withdrew the power of attorney he had given to N.K. and thereafter the competent court again appointed lawyer A.B. to represent him ex officio (see paragraph 16 above). It does not appear from the case file that the applicant raised any objections to being again represented by the same lawyer, A.B., who had been present during his initial, allegedly irregular, police questioning.
43. The Court further observes that the trial against the applicant began on 16 February 2009 (see paragraph 17 above). However, it was not until the fourth hearing held on 11 March 2009 that the applicant raised the issue of the alleged lack of legal representation during his initial questioning by the police (see paragraph 19 above). The Court cannot see any reasonable justification for the delay in making that complaint (see, mutatis mutandis, Kuralić v. Croatia, no. 50700/07, § 33, 15 October 2009). In particular, the fact that the applicant waited until the end of the trial to give an oral statement does not mean that he could not have brought his complaint earlier in the proceedings (see Goran Kovačević v. Croatia, no. 34804/14, § 74, 12 April 2018). This is particularly so given that prior to the hearing held on 11 March 2009, the applicant and his lawyer D.Š. attended three hearings during which the trial court heard witnesses and examined other evidence, without the applicant or his lawyer ever mentioning the issue of the alleged unlawfulness of the police report on the applicant’s questioning on 30 September 2008 (see paragraph 18 above).
44. Furthermore, the Court observes that the court hearing of 16 February 2009 was attended by both A.B. as the applicant’s ex officio defence lawyer, and D.Š., whom the applicant then designated as his new representative. It finds no explanation as to why the applicant or his new lawyer failed to raise immediately the issue concerning the applicant’s police questioning and proposed that the trial court hear A.B., who was then present in court, as a witness straight away. Moreover, the Court attaches weight to the fact that after the trial court had rejected the application to hear A.B., which the applicant lodged a month later, the applicant did not appeal against that procedural decision, even though the trial court had expressly stated that the decision was amenable to a separate appeal. In those circumstances, the Court is satisfied that the applicant had ample opportunity to challenge the authenticity of the police report used as evidence against him and that he did so. However, he failed to use all legal avenues available to him in that respect.
45. In sum, although in principle any conversation between a detained criminal suspect and the police must be treated as formal contact and should not be characterised as “informal questioning” (see Titarenko v. Ukraine, no. 31720/02, § 87, 20 September 2012), the Court considers that the applicant failed to submit credible evidence that his initial police questioning had been conducted other than as attested by the official police report of 30 September 2008. In particular, the applicant has not explained why he failed to promptly retract the statement he made to the police and waited over five months – until the very end of the criminal proceedings against him – to contest the manner in which his initial police statement had allegedly been obtained. For their part, the competent domestic courts examined the applicant’s objection in this respect at two instances and gave logical and duly reasoned decisions (see paragraphs 23 and 24 above).
46. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s trial was not irretrievably prejudiced by the use of the police report of 30 September 2008 as evidence against him.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on14 November 2019.
Renata DegenerKrzysztof Wojtyczek
Deputy RegistrarPresident
Full & Egal Universal Law Academy