FIRST SECTION
Application no. 16115/13
Bruno MARGARETIĆ
against Croatia
lodged on 22 February 2013
STATEMENT OF FACTS
The applicant, Mr Bruno Margaretić, is a Croatian national, who was born in 1969 and lives in Osijek. He is represented before the Court by Mr D. Margaretić, a lawyer practising in Zagreb.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s pre-trial detention
On 23 March 2012 the applicant, a police officer, was arrested and detained in connection with a suspicion of conspiracy and the abuse of power and authority. An investigation judge (sudac istrage) of the Zagreb County Court (Županijski sud u Zagrebu) ordered the applicant’s detention under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the ground that there was a danger that the applicant might suborn three witnesses.
On 23 April 2012 the applicant’s pre-trial detention was extended on the same ground.
On 20 June 2012 the applicant’s pre-trial detention was again extended on the same ground and using the same reasoning. Against that decision the applicant lodged an appeal and on 12 July 2012 a three-judge panel of the Zagreb County Court quashed the decision on the applicant’s detention and remitted the case, on the ground that it was not sufficiently reasoned.
On 25 July 2012 a judge of investigation of the Zagreb County Court, endorsing the reasoning of the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: the “State Attorney’s Office”), ordered the applicant’s pre-trial detention under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the ground that there was a danger that the applicant might suborn nine witnesses (the same three mentioned above, and six additional).
The judge dismissed, however, the request made by the State Attorney to order the applicant’s detention on the ground that he might suborn the second-defendant who was at large. The judge held that the applicant had given his defence and that therefore there was no reason to believe that he would co-ordinate his defence with the second-defendant.
On an unspecified date in 2012 the applicant lodged an appeal against the above decision arguing that it was not sufficiently reasoned.
On 23 August 2012 an investigation judge extended the applicant’s pre-trial detention under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the ground that there was a danger that the applicant might suborn the witnesses. The applicant lodged an appeal before a three-judge panel of the Zagreb County Court reiterating his previous arguments and asking that his detention be replaced with the preventive measures.
On 12 and 20 September 2012 the applicant’s appeals against the decisions on his detention of 23 August 2012 and 25 July 2012 respectively, were dismissed as ill-founded.
On 21 September 2012 a judge of investigation again extended the applicant’s pre-trial detention under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the ground that there was a danger that the applicant might suborn the same witnesses.
On an unspecified date in September 2012 the applicant lodged an appeal against the above decision arguing that there had been more than sufficient time to question the witnesses and that his detention was no longer reasonable and justified.
On 24 September 2012 the applicant asked the investigation judge to order the State Attorney to interrogate the witnesses in question, pointing out that he had already been detained for more than six months and that the witnesses had not been questioned. He also argued that his detention had been ordered and extended pending the questioning of witnesses and there had been no activity in that respect.
On 9 October 2012 the investigation judge accepted the applicant’s request and ordered the State Attorney to question the witnesses within fourteen days.
On 10 October 2012 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal against the decision on his detention of 21 September 2012
On 15 October 2012 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against the decision of a three-judge panel of 20 September 2012, dismissing his appeal against the decision on his detention of 25 July 2012; and against the decision of a three-judge panel of 12 September 2012, dismissing his appeal against the decision on his detention of 23 August 2012.
In his constitutional complaint the applicant argued that his detention was arbitrary since the investigation judge had found that the witnesses could be heard within fourteen days and at the same time he had been detained on that ground for almost seven months.
On an unspecified date in 2012 the applicant lodged a further constitutional complaint against the decision of a three-judge panel of the Zagreb County Court of 10 October 2012, dismissing his appeal against the decision on his detention of 21 September 2012.
On 25 October 2012 the Constitutional Court declared the applicant’s constitutional complaint of 15 October 2012 inadmissible on the ground that in the meantime a new decision on the applicant’s detention had been adopted and that he had not been detained in connection with the decisions complained of.
On 6 November 2012 the Constitutional Court dismissed the applicant’s constitutional complaint against the decision of a three-judge panel of the Zagreb County Court of 10 October 2012, dismissing his appeal against the decision on his detention of 21 September 2012, as ill-founded, endorsing the reasoning of the lower courts.
In the meantime, the State Attorney complied with the order of the investigation judge of 9 October 2012 and questioned all witnesses in one day.
On 23 November 2012 an investigation judge extended the applicant’s pre-trial detention under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the ground that there was a danger that the applicant might suborn the second-defendant who was at large.
The judge considered that the applicant, as a police officer, knew a lot of people and that through them he could contact the second-defendant irrespective of the fact that the latter was, according to the available information, hiding somewhere in Serbia. The judge also held that the preventive measures would not be sufficient to prevent the risk of collusion.
On an unspecified date in 2012 the applicant lodged an appeal reiterating his previous arguments that his detention was unreasonable and unjustified.
On 12 December 2012 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal as ill founded.
The applicant lodged a constitutional complaint and on 15 January 2013 the Constitutional Court dismissed it as ill-founded, endorsing the arguments of the lower courts.
The decision of the Constitutional Court was served on the applicant’s representative on 21 January 2013.
2. Administrative disciplinary proceedings
Parallel to the criminal proceedings against the applicant, the Ministry of the Interior (Ministartsvo unutarnjih poslova Republike Hrvatske) opened the disciplinary proceedings against him, and the applicant was suspended pending the outcome of the disciplinary and the criminal proceedings.
On an unspecified date in 2012 the applicant lodged an administrative action before the Osijek Administrative Court (Upravni sud u Osijeku) challenging the decision on his provisional suspension.
On 17 September 2012 the applicant submitted his further written observations and requested that the hearing, scheduled for 18 September 2012, be adjourned until his release from detention.
On 18 September 2012 the Osijek Administrative Court held the hearing in the applicant’s absence and dismissed his administrative action as ill-founded. It found that the request for the adjournment of the hearing had only been an attempt to delay the proceedings and that the applicant’s representative, although duly informed, had failed to appear without any relevant reason.
The applicant lodged an appeal with the High Administrative Court (Visoki upravni sud Republike Hrvatske) and on 11 October 2012 that court declared his appeal inadmissible on the ground that the Osijek Administrative Court had not itself decided on the merits of the applicant’s rights and obligations but only dismissed his administrative action.
The applicant lodged a constitutional complaint and on 31 January 2013 the Constitutional Court declared it inadmissible as manifestly ill-founded.
COMPLAINTS
The applicant complains, under Article 5 §§ 1 (c) and 3 of the Convention, that his detention was unlawful and ordered arbitrarily. He also complains about the grounds and length of his pre-trial detention.
The applicant complains, invoking Article 13 of the Convention, that he did not have an effective domestic remedy before the Constitutional Court concerning his pre-trial detention.
The applicant further complains, under Article 6 § 2 of the Convention, that the decisions on his detention violated his presumption of innocence.
Lastly, the applicant complains, invoking Article 6 §§ 1 and 3 (c) of the Convention, that he was not given an opportunity to participate effectively in the administrative disciplinary proceedings.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 (c) of the Convention?
2. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
3. Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention before the Constitutional Court in conformity with Article 5 § 4 of the Convention?
4. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was he able to participate effectively in the proceedings before the Administrative Court?
The Government are required to submit two copies of the entire criminal case file in the applicant’s case.
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