MILANKOVIC AND BOSNJAK v. CROATIA - 37762/12 (Judgment (Merits) : Court (Second Section)) [2016] ECHR 391 (26 April 2016)

In the case of Milanković and Bošnjak v. Croatia,

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

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

Having deliberated in private on 15 March 2016,

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

PROCEDURE

1. The case originated in two applications (nos. 37762/12 and 23530/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Croatian nationals, Mr Vladimir Milanković and Mr Drago Bošnjak (“the applicants”), on 29 May 2012 and 29 March 2013 respectively.

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

3. The applicants complained, in particular, of a lack of relevant and sufficient reasons for their prolonged pre-trial detention, contrary to Article 5 § 3 of the Convention.

4. On 8 November 2013 the first applicant’s complaint was communicated to the Government, and on 17 July 2013 the second applicant’s complaint was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1962 and 1958 respectively and live in Sisak.

A. Criminal proceedings against the applicants

6. On 20 June 2011 the Sisak-Moslavina Police Department (Policijska Uprava Sisačko-moslavačka; hereinafter: the “police”) lodged a criminal complaint against the applicants and one other person, alleging that in 1991 and 1992 they had committed war crimes against the civilian population in the area of Sisak and Banovina.

7. Having collected extensive evidence in the course of the preliminary investigation, on 22 June 2011 the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku) requested an investigating judge of the Osijek County Court (Županijski sud u Osijeku) to open an investigation in respect of the applicants on suspicion of war crimes against the civilian population, as alleged in the criminal complaint lodged by the police.

8. The investigating judge questioned the applicants in connection with the request of the Osijek County State Attorney’s Office. Both applicants denied the allegations against them.

9. On 22 June 2011 the investigating judge opened an investigation in respect of the applicants on suspicion of war crimes against the civilian population. The investigating judge found, on the basis of the available material, that there was a reasonable suspicion that the first applicant, acting in his capacity as commander of police combat units in the area of Sisak, had ordered and carried out arbitrary arrests and ill-treatment of civilians, and that he had failed to prevent, supress and punish arbitrary arrests and searches and seizures, as well as ill-treatment and killings perpetrated by his subordinates. With regard to the second applicant, the investigating judge found that there was a reasonable suspicion that, as a member of a special police unit of the Sisak police, he had organised a group which had carried out arbitrary arrests, ill-treatment and killings.

10. During the investigation the investigating judge heard evidence from the applicants and questioned numerous witnesses. He also obtained a number of relevant forensic reports on the crime-scene examinations, autopsies and ballistic expertise, and voluminous evidence and documentation concerning the actions of the police units in Sisak at the relevant time.

11. On the basis of the evidence obtained during the investigation, on 16 December 2011 the Osijek County State Attorney’s Office indicted the applicants in the Osijek County Court on charges of war crimes against the civilian population. The first applicant was charged with twenty-four counts of arbitrary arrests, ill-treatment and the killing of civilians, and the second applicant with four counts of ill-treatment and the killing of civilians. The relevant part of the indictment concerning the applicants’ participation in those events reads:

“I. Defendant Vladimir Milanković

in the period between July 1991 and June 1992, while defending the wider area of Sisak and Banovina from armed attacks carried out by paramilitary formations of a part of the local Serbian population and the Yugoslav People’s Army in the conflict on the Constitutional and territorial integrity of the Republic of Croatia, ... as a commander of the police units in the wider area of Sisak and Banovina ...

authorised thereby to give orders to all police units and responsible for [securing] compliance with and application of the laws of war and international humanitarian law relative to the protection of civilian persons on that territory and for the humane treatment of prisoners of war,

aware that, due to the conflict and occupation of an important part of Banovina and the terrorising and expulsion of the non-Serbian population from the occupied territories, intolerance towards the Serbian citizens of Sisak was growing, that the security situation in the city was ... extremely complex, that inter-ethnic relations were very tense, that there was a perception amongst the Croatian and other non-Serbian citizens of Sisak that all Serbs were collectively responsible for the war, ...

at the same time aware that the police units under his command were mostly composed of members of the local population affected by the suffering, that amongst the members of his subordinate police units there were some individuals who had been previously in conflict with the law, while the members of the reserve police units had not been instructed about or trained on all the obligations arising from the norms of international laws of war and humanitarian law,

aware that in the Sisak area members of his subordinate units frequently and without any legal basis carried out searches [and seizures] in the houses and flats of persons of Serbian origin, ... who were, in the course of these unlawful actions, often arrested ...

although aware that the arrested persons were subjected to unlawful actions, that during questioning they were accused of collaboration with the enemy, offended, humiliated and coerced, that some of them were physically and psychologically ill-treated and that grave bodily injuries were inflicted on them, and that already on 4 August 1991, during one such intervention ... V.B. [was arrested and subsequently] brutally beaten by a number of unknown members of the reserve police unit ..., and that the numerous injuries he had sustained led to his death the same evening in the Sisak hospital,

although aware that in the above-noted circumstances, if he failed to take timely and adequate measures, the members of his subordinate units would continue their unlawful actions against the citizens of Sisak of Serbian origin and their inhumane treatment of prisoners of war,

although under the commonly recognised rules of international laws of war and humanitarian customary law relative to the protection of civilian persons, and the command responsibility for the acts of subordinates in times of armed conflict, contrary to Articles 3 § 1 (a) and (c), 13, 27, 31 and 32 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Article 4 §§ 1 and 2 (a) and Article 13 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (Protocol II), Articles 75, 86 and 87 of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I) and Article 3 § 1 (a) and (c) and Article 13 of the Third Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, he was required to take measures to prevent, supress and punish such unlawful actions, he failed to do so. On the contrary, by using his authority as commander of the police units, he prevented the taking of necessary measures to identify the direct perpetrators and thereby condoned the unlawful actions of his subordinates and encouraged them to take such actions, accepting that they would continue with their actions and condoning their consequences. Meanwhile he also personally participated in ill-treatment and attacks on certain civilians and ordered the unlawful detention of a number of civilians of Serbian origin ...

II. Defendant Drago Bošnjak

in the second half of August 1991, ..., as a member of the special police unit V. of the Sisak Police Department, together with, at present, unknown members of that unit, ..., in order to carry out coercion and revenge on citizens of Serbian origin, contrary to Articles 3 § 1 (a) and (c), 13, 27 and 32 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Article 4 §§ 1 and 2 (a) and Article 13 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (Protocol II), organised and led a group of unknown members of the said unit with whom he carried out unlawful arrests, ill-treatment and the killing of persons of Serbian origin ...”

12. The applicants objected to the indictment. On 27 January 2012 a three-judge panel of the Osijek County Court confirmed the existence of a reasonable suspicion that they had committed the offences listed in the indictment, and sent the case to trial.

13. At a hearing held on 21 May 2012 before the Osijek County Court the applicants pleaded not guilty to the charges.

14. In the further course of the proceedings a number of hearings were held before the Osijek County Court, notably on 11-13 June; 2-4 and 9-11 July; 4-5 and 17-19 September; 9-10 and 15-17 October; 5, 7, 19, 20-21 November, 11-12 December 2012; as well as on 4-5 and 18-20 February; 18-20 March; 29 April; 14 and 28 June; 26 August; 29 September; and 14-16 October 2013. Several witnesses were questioned and voluminous evidence was examined.

15. The closing hearing was held on 2 December 2013. By a judgment of 9 December 2013 the Osijek County Court found the first applicant guilty as charged and sentenced him to eight years’ imprisonment. It acquitted the second applicant on the grounds of lack of evidence.

16. The first applicant challenged the first-instance judgment before the Supreme Court (Vrhovni sud Republike Hrvatske), alleging a number of substantive and procedural flaws. The Osijek County State Attorney’s Office also lodged an appeal before the Supreme Court, challenging the acquittal of the second applicant and complaining that the sentence given to the first applicant was lenient.

17. On 10 June 2014 the Supreme Court upheld the acquittal of the second applicant and increased the first applicant’s sentence to ten years’ imprisonment. The judgment of the Osijek County Court thereby became final.

B. Decisions on the applicants’ detention during the investigation

18. On 20 June 2011 the applicants were arrested in connection with the criminal complaint lodged against them by the police (see paragraph 6 above).

19. On 22 June 2011 the investigating judge ordered the applicants’ pre-trial detention for one month under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). The relevant part of the decision reads:

“As an investigation has been opened in respect of the defendants concerning the offences at issue, the general condition [related to the existence of reasonable suspicion] for ordering detention against ... the second defendant Vladimir Milanković and the third defendant Drago Bošnjak has been met.

...

A request for the questioning of 232 witnesses has been made. Most of these witnesses live in the Sisak area and most of them still work or have worked as police officers ... who were subordinate to the second defendant Vladimir Milanković. Specifically, in the period at issue the second defendant Vladimir Milanković was a deputy to the Chief of the Sisak Police Department ... and the real commander of the entire police force [in the Sisak area]. The records of the police interviews show that several witnesses who should be questioned [during the investigation] are in fear of the second defendant because they gave statements concerning the impugned actions ... and the second defendant was their superior in the period at issue. Furthermore, amongst the witnesses - including victims who have been ill-treated or are family members of the victims, there is a fear of the defendant and the available material in the case file shows that the witnesses have been threatened ... There is therefore a risk of collusion, [that is to say a risk] that the defendant could, if at large, hinder the investigation by influencing the witnesses. Thus detention under Article 102 § 1 (2) of the Code of Criminal Procedure is justified.

Furthermore, since the defendant ... has been charged with individual and command responsibility for the unlawful deprivation of liberty and ill-treatment of thirty-eight civilians of Serbian origin and the killing of thirty-one persons of Serbian origin from the Sisak area, all of which was perpetrated in a particularly brutal manner, including entire families irrespective of the sex or age [of the victims], and in view of the fact that the criminal offence at issue carries a sentence of more than twelve years’ imprisonment, and also the circumstances described in [the decision on opening of the investigation], ... it follows that detention under Article 102 § 1 (4) of the Code of Criminal Procedure is justified.

Detention under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure is also justified in respect of the third defendant Drago Bošnjak. ... A number of witnesses who should be questioned during the investigation, and who were members of unit V., have given different statements about the [relevant] events from those given by the defendant ... which suggests that there is a risk that if at large he could hinder the conduct of the investigation by influencing these witnesses ...

The same circumstances which have been stated above concerning the first and the second defendants accordingly apply to the third defendant with regard to the existence of a risk that if at large they could continue with threats to the mentioned witnesses, who have already been threatened several times concerning their statements against the defendants in the proceedings at issue. Thus the detention under Article 102 § 1 (2) of the Code of Criminal Procedure is justified.

In respect of the third defendant, reasons for detention under Article 102 § 1 (4) of the Code of Criminal Procedure also exist.

In particular, he is suspected of individual responsibility in the commission of war crimes against the civilian population and arbitrary arrests, ill-treatment and the killing of two families Vi. and T. in a highly brutal manner. The description of the offences [referred to in the decision on opening of the investigation] suggests that the circumstances of the offences were particularly serious. The offences were motivated by revenge and ethnic discrimination and were committed in a highly brutal manner against civilians and entire families ... Detention under Article 102 § 1 (4) of the Code of Criminal Procedure is therefore justified.”

20. The applicants appealed against the decision of the investigating judge before a three-judge panel of the Osijek County Court, arguing that it lacked the relevant reasoning.

21. On 5 July 2011 a three-judge panel of the Osijek County Court dismissed the applicants’ appeals as unfounded, endorsing the reasoning of the investigating judge. In particular it noted the following:

“There is therefore a reasonable suspicion that the defendants committed the offences alleged [in the decision on opening of the investigation] and thus the general condition for ordering pre-trial detention under Article 102 § 1 of the Code of Criminal Procedure has been met. The impugned decision contains sufficient reasoning as to the existence of a reasonable suspicion, and the appeal arguments, concerning the manner in which the offences were committed or the extent of the criminal wrongdoing relate to something which will be examined during the proceedings. At this stage of the proceedings the existence of a reasonable suspicion is a sufficient condition for ordering pre-trial detention ... and when examining an appeal against the decision ordering detention, the second-instance court is not authorised to examine the facts with regard to the actual existence of the offences at issue or the criminal responsibility of the perpetrator.

The justification for pre-trial detention under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure in respect of the defendants follows from the material in the case file. In this respect the impugned decision provided relevant and detailed reasons, which this second-instance panel accepts.

...

Furthermore, the appeal arguments that in the case at issue the same purpose of the detention could be achieved by one of the alternative measures under Article 90 of the Code of Criminal Procedure cannot be accepted ...

In view of all the circumstances of the case, this panel finds that detention under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure is necessary and the only appropriate measure for the prevention of collusion, especially given the particular gravity of the offences at issue.”

22. On 19 July 2011 the investigating judge extended the applicants’ detention for a further two months under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He found that some more witnesses needed to be questioned and that some of them had been threatened with regard to their statements in the criminal proceedings at issue. The investigating judge also reiterated the previous findings concerning the gravity of the charges against the applicants.

23. The applicants appealed against that decision and on 1 August 2011 a three-judge panel of the Osijek County Court dismissed their appeals as ill-founded, reiterating its previous arguments.

24. On 19 September 2011 the investigating judge extended the applicants’ detention for a further three months under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He held that thus far, out of 232 witnesses, sixty-one had been questioned and that the remainder should be questioned within a period of three months. The investigating judge also reiterated the specific circumstances of the case justifying detention on the grounds of gravity of the charges.

25. The applicants challenged that decision, arguing that their continued detention was not justified. On 30 September 2011 a three-judge panel of the Osijek County Court dismissed their appeals as ill-founded, endorsing the findings of the investigating judge.

26. On 28 October 2011 the first applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), contending that his pre-trial detention was not based on relevant and sufficient reasons.

27. On 11 November 2011 the Constitutional Court dismissed the first applicant’s constitutional complaint, endorsing the reasoning of the Osijek County Court. The Constitutional Court in particular stressed:

“The Constitutional Court reiterates its opinion, on which the appellant relies in his constitutional complaint, that the mere existence of a ‘reasonable suspicion’ is not sufficient after a certain lapse of time to justify pre-trial detention. It is necessary in such instances, (even under) the case-law of the European Court [of Human Rights], to ascertain the conditions for a possibility [of detention]: a) the existence of ‘relevant and sufficient’ reasons justifying [the detention], and b) whether the competent criminal justice authorities displayed the necessary diligence in the conduct of the proceedings. ...

Since Article 102 § 1 (4) of the Code of Criminal Procedure does not explicitly provide for a legitimate aim of detention, as provided for in the other relevant provisions on detention, it is particularly important that the competent criminal justice authorities correctly establish the necessity of applying Article 102 § 1 (4) of the Code of Criminal Procedure ...

In view of the findings of the Osijek County Court, and taking into account the sentence of imprisonment which can be imposed in this specific case, as well as the gravity of the charges, the Constitutional Court finds that the decisions of the investigating judge and the three-judge panel of the Osijek County Court comply with the relevant opinions and requirements when extending the pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure ...”

C. The first applicant’s detention pending trial

28. Following the filing of the indictment against the applicants in the Osijek County Court (see paragraph 11 above), on 19 December 2011 a three-judge panel of that court extended the first applicant’s detention pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads:

“There is a reasonable suspicion (and therefore the existence of the general condition for pre-trial detention) that the accused Vladimir Milanković and Drago Bošnjak committed the [war crimes against the civilian population]. ...

The second condition [for detention] under Article 102 § 1 (4) of the Code of Criminal Procedure has also been met. This follows from the indictment against the accused Vladimir Milanković and Drago Bošnjak, which describes the physical and mental ill-treatment of the detained civilians, who were beaten until they lost consciousness, subjected to such brutality as to cause bodily harm, arbitrary arrests and beatings. [The accused are suspected of] shooting and bombing family houses, locking civilians in basements without windows or light, taking civilians to unknown locations and shooting them or killing them with hard or sharp objects, and the killing of the entire V. family and part of the T. family out of revenge and ethnic discrimination ... Therefore both defendants are suspected of particular cruelty and mercilessness ..., which, in view of the number of [victims] and the consequences of such conduct, the impugned offences in their entirety significantly surpass the usual circumstances pertinent to such grave offences. This justifies detention under Article 102 § 1 (4) of the Code of Criminal Procedure in respect of the accused Vladimir Milanković and Drago Bošnjak ...

The preventive measures [under the Code of Criminal Procedure], in view of the specific circumstances of the offences at issue, could not achieve the purpose of detention ...”

29. The first applicant appealed against that decision to the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the necessity of and the lack of relevant and sufficient reasons for his continued detention.

30. On 13 January 2012 the Supreme Court dismissed the first applicant’s appeal, upholding the decision of the Osijek County Court. The relevant part of the decision reads:

“The impugned conduct of both accused, which includes ill-treatment and other extreme forms of inhumane treatment of civilians, and in the case of the accused Vladimir Milanković also of prisoners of war, some of whom were killed, as well as the failure to prevent such conduct by [Vladimir Milanković’s subordinates] ... suggests a particularly high level of brutality, mercilessness and unimaginable cruelty. Taking also into account that the seriousness of the impugned conduct of both accused on account of its intensity, recurrence and modality, as well as the period in which it took place, significantly surpasses the usual circumstances and consequences of such offences, which are in themselves particularly grave, [the Supreme Court finds] that the circumstances of the offence are particularly grave [justifying detention] under Article 102 § 1 (4) of the Code of Criminal Procedure.

The appellate arguments of both accused that the purpose of detention could be achieved by alternative preventive measures cannot be accepted ... as there is public interest justifying the restriction of the accused’s right to personal liberty, guaranteed under the Constitution and the European Convention on Human Rights. The fact that the impugned offences took place twenty years ago does not diminish their gravity and their moral public condemnation ... In particular, the conclusion as to the existence of particularly grave circumstances [of the offences] follows from the specific facts and the conduct with which the accused are charged, and they significantly surpass the usual circumstances related to the commission of such offences.

The appellate arguments challenging the existence of a reasonable suspicion, and the assessment of evidence, are not relevant for the decision on detention, as at this stage of the proceedings the existence of a reasonable suspicion follows from the indictment. The second-instance panel, when examining an appeal against a decision on detention, cannot examine the factual findings or the criminal responsibility of the accused.”

31. The first applicant challenged the decision of the Supreme Court by lodging a constitutional complaint with the Constitutional Court. He argued that his continued detention had been arbitrary and contrary to the Constitution and the Convention.

32. On 2 March 2012 the Constitutional Court dismissed the first applicant’s constitutional complaint as unfounded. It reiterated the necessity of examining in detail all the relevant circumstances of the case when ordering and extending pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure (see paragraph 27 above), noting in particular:

“The Constitutional Court accepts the findings of the Supreme Court ... that detention is justified by the public interest in the case. The Supreme Court correctly stated that the fact that the impugned offences took place twenty years ago does not diminish their gravity or their moral public condemnation ...”

33. On 9 March 2012 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments.

34. The first applicant appealed against that decision to the Supreme Court. On 4 April 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that, in the particular circumstances of the case, his detention had not been disproportionate or unjustified.

35. On 4 June 2012 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on the seriousness of the specific charges against him and finding that the overall duration of his detention had not been excessive.

36. The first applicant challenged that decision before the Supreme Court, reiterating his previous arguments. On 29 June 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that the public interest related to his remand in custody prevailed over his right to liberty.

37. The first applicant lodged a constitutional complaint before the Constitutional Court against the decision of the Supreme Court, arguing in particular that his continued detention was not based on relevant and sufficient reasons.

38. On 26 July 2012 the Constitutional Court dismissed the first applicant’s constitutional complaint, endorsing the reasoning of the Supreme Court.

39. On 27 August 2012 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on its previous findings as to the gravity of the charges against him.

40. The first applicant appealed against that decision to the Supreme Court, invoking his state of health related to an injury to his right hip and challenging his continued pre-trial detention.

41. On the basis of medical documentation submitted by the first applicant, on 26 September 2012 the Supreme Court found that the relevant information concerning his health had not been known to the first-instance court when extending his detention; it thus remitted the case and ordered the first-instance court to examine the matter.

42. On 17 October 2012 a three-judge panel of the Osijek County Court, relying on an expert report which indicated that there was no imminent risk to the first applicant’s health or necessity for urgent surgery, extended the first applicant’s detention.

43. The first applicant appealed against that decision before the Supreme Court. On 15 November 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that the Osijek County Court had correctly established all the relevant circumstances of the case warranting the extension of his detention.

44. The first applicant challenged the decision of the Supreme Court before the Constitutional Court, arguing that his continued detention was no longer reasonable or justified. On 8 January 2013 the Constitutional Court dismissed his complaint as ill-founded, upholding the decision of the Supreme Court.

45. On 14 January 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) on the grounds that, in the particular circumstances of the case at hand, there was nothing calling into question the necessity of his continued detention.

46. The first applicant appealed against that decision to the Supreme Court and on 30 January 2013 the Supreme Court dismissed his appeal as ill-founded. The Supreme Court held as follows:

“It is therefore, in the view of this court, justified to remand the accused Vladimir Milanković in custody under Article 102 § 1 (4) of the Code of Criminal Procedure ... In view of the fact that the purpose of detention under the cited provision is to prevent persons whose actions provoke particular moral condemnation from being at large, the appeal arguments, according to which the decision of the first-instance court with regard to the necessity of detention lacks the relevant reasoning, cannot be accepted.”

47. The first applicant challenged that decision before the Constitutional Court. On 15 March 2013 the Constitutional Court dismissed his complaint, endorsing the findings of the Supreme Court.

48. On 28 March 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments.

49. The first applicant challenged that decision before the Supreme Court. On 17 April 2013 the Supreme Court dismissed his appeal on the grounds that there was a persisting public interest warranting his detention.

50. On 14 June 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its findings as to the particular gravity of the charges against him.

51. The first applicant appealed against that decision to the Supreme Court and on 5 July 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the findings of the Osijek County Court.

52. The first applicant then lodged another constitutional complaint before the Constitutional Court, challenging his continued detention. On 26 August 2013 the Constitutional Court accepted his complaint and remitted the case to the Osijek County Court on the grounds that it had failed to indicate in sufficient detail the specific reasons warranting the first applicant’s continued detention. The Constitutional Court explained the relevant principles in the following manner:

“Under Article 102 § 1 (4) of the Code of Criminal Procedure on the purpose and aim of detention, and bearing in mind the [Court’s] case-law, which the Constitutional Court accepts, detention on the grounds of ‘particularly grave circumstances’ of an offence ... cannot by itself serve as a purpose.

The consequences of the fact that a criminal offence is particularly grave and that its social dangerousness and the ‘extent’ of society’s condemnation are expressed through the possibility of imposing a (long) sentence, are reflected both subjectively and objectively. A defendant facing serious charges and a possibility of incurring a long sentence inevitably has a subjective [incentive] to escape and/or to hinder the proper conduct of the proceedings and/or to reoffend. However, objectively ... there is a possibility of ‘disturbance of the public’, which requires additional care and protection of the public interest. ...

...

Accordingly, the extension of detention under Article 102 § 2 (4) of the Code of Criminal Procedure cannot be grounded on a simple repetition of the description of the offence imputed [to a defendant] ... but requires an analysis and a detailed reasoning of all the facts and circumstances, particularly those related to the personality of the defendant, the public interest in his or her remand in custody, as well as the conduct and the results of the proceedings.”

53. On 2 September 2013 a three-judge panel of the Osijek County Court examined the specific circumstances of the case and extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads:

“The release of the accused Vladimir Milanković in respect of whom there is a reasonable suspicion that he has committed the offences at issue, would create public disturbance, particularly amongst members of the Serbian minority, specifically those who were the victims of these offences in the area of Sisak. It should be borne in mind that this concerns not only Sisak, as a small community, but also the surrounding rural areas where the consequences of the war are still present and where the process of normalisation of mutual relations and peaceful coexistence of the citizens, irrespective of their ethnic background, is still ongoing. Thus, the release of the accused from detention would not only disturb the population [of this area] but would also diminish [citizens’] confidence in the judiciary and the social [order] as such. This is especially so given that the mission of the judiciary is not only prosecution, establishing of guilt and punishment of the perpetrators of criminal offences, but also the [creation of a sense] of justice and rule of law from the perspective of citizens.”

54. The first applicant appealed against that decision to the Supreme Court, challenging the extension of his detention. On 27 September 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court.

55. The first applicant challenged the decision of the Supreme Court by lodging a constitutional complaint before the Constitutional Court. On 7 November 2013 the Constitutional Court dismissed the complaint as ill-founded. The relevant part of the decision reads:

“... the Constitutional Court accepts the fact that the Supreme Court, in compliance with the decision ... of 26 August 2013, in the impugned decision provided reasons justifying the necessity of detention under Article 102 § 1 (4) of the Code of Criminal Procedure in the circumstances of the present case. In particular, the Supreme Court provided reasons showing that in view of the local circumstances in Sisak and the [Court’s] case-law relevant to the prevention of disturbance to public order (in the terminology of the Supreme Court: public disturbance), the appellant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure was justified. ...

...

For these reasons the Constitutional Court finds that the competent courts provided sufficient reasons for their decisions, as required by the decision of the Constitutional Court ... of 26 August 2013. ...”

56. On 26 November 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments.

57. Following the first applicant’s conviction at first-instance on 9 December 2013 (see paragraph 15 above), he was remanded in custody pending a final judgment.

D. The second applicant’s detention pending trial

58. On 19 December 2011, following the filing of the indictment against the applicants in the Osijek County Court (see paragraph 11 above), a three-judge panel of that court extended the second applicant’s detention pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure on the grounds of gravity of the charges (see paragraph 28 above).

59. The second applicant appealed against that decision to the Supreme Court, challenging the necessity of his detention and complaining of a lack of relevant and sufficient reasons for ordering it. On 13 January 2012 the Supreme Court dismissed his appeal, upholding the decision of the Osijek County Court (see paragraph 30 above).

60. On 9 March 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments (see paragraph 33 above).

61. The second applicant challenged that decision before the Supreme Court. On 4 April 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that, in the particular circumstances of the case, his detention was not disproportionate or unjustified (see paragraph 34 above).

62. The second applicant lodged a constitutional complaint before the Constitutional Court against the decision of the Supreme Court, arguing that his continued detention was not justified. On 31 May 2012 the Constitutional Court dismissed his constitutional complaint as ill-founded on the grounds that the Osijek County Court and the Supreme Court had provided relevant and sufficient reasons for his continued detention.

63. On 4 June 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). They relied on the particularly grave circumstances of the specific charges against him and found that the overall duration of his detention had not been excessive (see paragraph 35 above).

64. The second applicant challenged that decision before the Supreme Court. On 29 June 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that the public interest in his being remanded in custody prevailed over his right to liberty (see paragraph 36 above).

65. On 27 August 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on its previous findings as to the gravity of the charges against him (see paragraph 39 above).

66. The second applicant challenged that decision before the Supreme Court. On 26 September 2012 the Supreme Court dismissed his appeal as ill-founded, endorsing the decision of the Osijek County Court.

67. On 21 November 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads:

“It is alleged in the confirmed indictment that there is a reasonable suspicion that the accused Drago Bošnjak, in the second half of August 1991, while defending the wider area of Sisak and Banovina from armed attacks carried out by paramilitary formations of part of the local Serbian population and the Yugoslav People’s Army, as a member of special police unit V. of the Sisak Police Department, together with several unidentified members of that unit, organised and led a group of unidentified members of the said unit with whom he carried out unlawful arrests, ill-treatment and the killing of persons of Serbian origin. Five members of the Vi. family as well as [a certain] N.T. were killed, while [N.T.’s] sons Z. and B. were taken to an improvised detention camp and beaten up, after which they disappeared.

The alleged conduct of the accused, especially given the intensity and recurrence of the acts as well as the period in which they took place, was in itself particularly merciless and cruel. In the view of this court, the particularly grave circumstances of the offence surpass the usual circumstances and consequences of such offences and thus justify the detention under Article 102 § 1 (4) of the Code of Criminal Procedure.”

68. The second applicant appealed against that decision to the Supreme Court, arguing that his detention was not justified. On 7 December 2012 the Supreme Court dismissed his appeal as ill-founded. The relevant part of the decision reads:

“... the finding of the first-instance court that the grounds for the continued detention of the accused Drago Bošnjak under Article 102 § 1 (4) of the Code of Criminal Procedure still apply is correct.

The confirmed indictment shows a relevant degree of reasonable suspicion that the accused committed the offence under Article 120 § 1 of the Criminal Code. Thus the general statutory condition under Article 102 § 1 of the Code of Criminal Procedure has been met.

There is a reasonable suspicion that the accused, in the second half of August 1991, while defending the wider area of Sisak and Banovina from armed attacks carried out by paramilitary formations of part of the local Serbian population and the Yugoslav People’s Army, as a member of special police unit V. of the Sisak Police Department, together with several unidentified members of that unit, organised and led a group of unidentified members of the said unit with whom he carried out unlawful arrests, ill-treatment and the killing of persons of Serbian origin. Five members of the Vi. family as well as [a certain] N.T. were killed, while [N.T.’s] sons Z. and B. were taken to an improvised detention camp and beaten up, after which they disappeared.

Contrary to the appeal arguments, the behaviour of the accused described above, particularly given the intensity and number of impugned acts and the period in which they took place, was in itself particularly merciless and cruel. In the view of this second-instance court, the particularly grave circumstances of the offence surpass the usual circumstances and consequences of such offences and thus justify the detention under Article 102 § 1 (4) of the Code of Criminal Procedure.

The remaining appeal arguments concern the assessment of evidence and the proceedings and are not decisive for the decision on detention. They are a subject of discussion before the first-instance court. In addition, the detention of the accused Drago Bošnjak does not raise an issue under the principle of proportionality with regards to the gravity of the offence, the sentence which could be expected and the necessity of detention.”

69. The second applicant lodged a constitutional complaint against the decision of the Supreme Court, challenging the necessity of his detention. On 31 January 2013 the Constitutional Court dismissed it as ill-founded. The relevant part of the decision reads:

“Bearing in mind all the circumstances of the present case enumerated in the impugned decisions, the fact that there is a reasonable suspicion that the appellant (in detention since 20 June 2011) ‘committed an offence under Article 120 § 1 of the Criminal Code by which a general statutory condition under Article 102 § 1 of the Code of Criminal Procedure’ has been satisfied, and ‘in particular the intensity and recurrence of the impugned acts’, the Constitutional Court finds that, notwithstanding the presumption of the appellant’s innocence (and the fact that he has been in detention for nineteen months) the compelling public interest outweighs the accused’s right to liberty.

Therefore, the Constitutional Court finds that the detention ‘with regard to the gravity of the offence and the sentence which could be expected’ is entirely proportionate to the legitimate aim pursued, and that the impugned decision does not limit the rights or freedoms of the appellant contrary to [the Constitution].”

70. On 5 February 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments.

71. The second applicant appealed to the Supreme Court, challenging the existence of relevant and sufficient reasons for his detention. On 27 February 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court.

72. The second applicant challenged the decision of the Supreme Court by lodging a constitutional complaint before the Constitutional Court. On 18 April 2013 the Constitutional Court dismissed his complaint as ill-founded on the grounds that the lower courts, when extending his detention, had provided relevant and sufficient reasons.

73. On 26 April 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on its previous reasoning.

74. The second applicant appealed against that decision before the Supreme Court. On 17 May 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court.

75. The second applicant challenged that decision before the Constitutional Court, arguing that his continued detention had been excessive and disproportionate.

76. On 11 July 2013 the Constitutional Court, having examined the second applicant’s constitutional complaint, remitted the case to the Osijek County Court on the grounds that the impugned decisions on detention lacked the relevant reasoning. The Constitutional Court reiterated its case-law relevant to the requirements for ordering and extending pre-trial detention on the grounds of gravity of the charges under Article 102 § 1 (4) of the Code of Criminal Procedure (see paragraph 52 above).

77. On 17 July 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous findings concerning the specific circumstances of the offences with which the second applicant was charged.

78. The second applicant appealed against that decision to the Supreme Court. On 31 July 2013 the Supreme Court dismissed his appeal as ill-founded, pointing out the following:

“It goes without saying that the release of a person, in respect of whom there is a reasonable suspicion that he has committed the impugned acts, would consequently create a public disturbance, in particular by the national minorities, amongst whom there are also family members of the victims of the conduct at issue, which took place during the war in the Sisak area. This is all the more so since [Sisak] is a small community which has been seriously affected by the war and where the long and difficult process of normalisation of mutual relations and peaceful coexistence is ongoing.”

79. The second applicant lodged a constitutional complaint before the Constitutional Court against the decision of the Supreme Court, challenging the reasonableness of his continued detention.

80. On 27 September 2013 the Constitutional Court dismissed the second applicant’s constitutional complaint, finding that his detention so far had been based on relevant and sufficient reasons. However, the Constitutional Court stressed:

“In view of the findings [with regard to the possibility of ordering detention on the grounds of the gravity of the charges] and the length of the appellant’s continued detention, as well as the length of the criminal proceedings and the expected termination of the main hearing, and in view of the fact that the detention was ordered twenty years after the alleged commission of the offences with which the appellant has been charged, the Constitutional Court finds that the validity of the findings of the Supreme Court [with regard to the avoidance of public disturbance] has reached its temporal limits.

In particular, every further reliance on the risk of public disturbance as a ground for extending the appellant’s detention could turn that ground for detention into a strong basis [for detention], which would mean in practice a constitutionally unacceptable and prohibited obligatory deprivation of liberty ...

It therefore follows from the circumstances of the present case that a further extension of detention on the grounds of a risk of public disturbance could lead to a violation of the appellant’s constitutional right to liberty. It is time therefore for the competent court to [re]examine the justification for the appellant’s continued detention in view of this new fact.”

81. On 30 September 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating that in view of the specific charges held against him, his release from detention could create a public disturbance.

82. The applicant appealed against that decision to the Supreme Court, arguing that his detention was no longer justified. On 25 October 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court.

83. On 2 December 2013 a three-judge panel of the Osijek County Court, anticipating the pronouncement of the first-instance judgment acquitting the second applicant (see paragraph 15 above), ordered his immediate release from detention. The second applicant was released on 9 December 2013.

84. Meanwhile, the second applicant lodged a constitutional complaint before the Constitutional Court challenging the extension of his detention by the Osijek County Court on 30 September 2013, which had been upheld by the decision of the Supreme Court on 25 October 2013 (see paragraphs 81-82 above).

85. On 13 January 2014 the Constitutional Court found that the extension of the applicant’s detention from 30 September to 9 December 2013 (see paragraphs 81-82 above) had violated his right to liberty under Article 22 of the Constitution. The relevant part of the decision reads:

“... in the impugned decisions [the Osijek County Court and the Supreme Court] failed to cite any new reason satisfying the Constitutional Court that the temporal limits [for detention based on the necessity to prevent public disturbance] had not been attained, but they nevertheless extended the appellants detention.

Moreover, seventy days after the first-instance court had extended the appellant’s detention by means of the impugned decision, and forty-five days following the confirmation of the lawfulness of such decision by the Supreme Court, the competent criminal court terminated the criminal proceedings against the appellant at first instance, acquitting him. Thus in the appellant’s case what the Constitutional Court indicated in its decision ... of 27 September 2013 was confirmed: that ‘every further reliance on the risk of public disturbance as a ground for extending the appellant’s detention could ... turn that ground for detention into a strong basis [for detention], which would mean in practice a constitutionally unacceptable and prohibited obligatory deprivation of liberty’.

The Constitutional Court does not find such conduct by the competent courts acceptable since the liberty of a person is an essential value protected by the Constitution. ...

It follows that for the period of validity of the impugned decisions of the Osijek County Court and the Supreme Court (between 30 September 2013 and 9 December 2013) the appellant’s right to liberty, guaranteed under Article 22 of the Constitution, has been violated.

Lastly, the Constitutional Court should also point out that there has been a flagrant violation of the appellant’s constitutional right to liberty in the period between 2 December 2013 and 9 December 2013.

...

The Constitutional Court finds that from the perspective of the appellant’s constitutional right to liberty it is irrelevant that the [Osijek County Court] in its decision of 2 December 2013 to terminate the detention referred to the (forthcoming) judgment of 9 December 2013 by which the appellant was acquitted. From the perspective of the appellant’s right to liberty, it is exclusively relevant that in the operative part of the decision of 2 December 2013 [the Osijek County Court] ordered that the appellant should be ‘immediately released’, but that the court order was not executed until seven days later.

...

In these circumstances the seven days of the appellant’s detention (between 2 and 9 December 2013) should a priori be considered as a flagrant violation of his right to liberty, guaranteed under Article 22 of the Constitution.”

86. In October 2014, after he had been finally acquitted, the applicant instituted the friendly settlement procedure with the State concerning the compensation for his unjustified detention. Following an unsuccessful arrangement with the Ministry of Justice (Ministarstvo pravosuđa) over the amount of compensation, the applicant lodged a civil action for damages in the Osijek Municipal Court (Općinski sud u Osijeku). On 15 October 2015, on the basis of the State’s partial admission of the claim, the Osijek Municipal Court adopted a partial judgment and awarded him 108,900 Croatian kunas (HRK; approximately 14,300 euros) in non-pecuniary damage plus the applicable statutory interest. This partial judgment became final on 5 November 2015, and the Osijek Municipal Court commissioned an expert report in order to determine the possible extent of the State’s responsibility for the applicant’s suffering in detention. These proceedings are still pending.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

1. Constitution

87. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:

Article 22

“Personal freedom and integrity are inviolable.

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

Article 25

“ ...

Anyone who has been unlawfully deprived of liberty or convicted shall have a statutory right to compensation or a public apology.”

2. Criminal Code

88. The relevant provision of the Criminal Code (Osnovni krivični zakon Republike Hrvatske, Official Gazette nos. 53/1991, 39/1992, 91/1992 and 31/1993) provides:

War Crimes against the Civilian Population

Article 120

“(1) Whoever, in breach of the rules of international law during war, armed conflict or occupation, orders ... the killing, torture or inhuman treatment of civilians; ... the infliction of grave suffering on or injuries to the bodily integrity or health of civilians; ... measures of fear and terror against civilians or the taking of hostages, ... illegal arrests ... shall be sentenced to not less than five years’ imprisonment or ... twenty years’ imprisonment.”

3. Code of Criminal Procedure

89. The relevant part 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, 178/2004 and 115/2006) reads as follows:

General Provisions on Detention

Article 101

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

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

(3) When deciding on detention, in particular its duration, a court shall take into consideration the proportionality between the seriousness 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 criminal proceedings shall proceed with particular urgency when the defendant is in detention, and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case detention shall immediately be lifted.”

Grounds for Ordering Detention

Article 102

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

...

2. if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might suborn witnesses, or where there is a risk of collusion;

...

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 particularly grave circumstances of the offence;

...”

Appeal against a decision ordering, lifting or extending a custodial measure

Article 110

“(1) A defendant, defence counsel or the State Attorney may lodge an appeal against a decision ordering, extending or lifting a custodial measure, within two days thereof.”

Proceedings concerning a claim for damages and securing of other rights of wrongfully convicted or unjustifiably arrested persons

Article 478

“...

(3) A claim for compensation shall be lodged against the Republic of Croatia.”

Article 480

“(1) The right to compensation shall be recognised also in respect of a person:

1. who has been in pre-trial detention but against whom criminal proceedings were either not instituted or were discontinued by a final decision, or who was finally acquitted ...

...

3. who has been arrested or detained on the basis of erroneous or unlawful conduct on the part of a state body, ...”

B. Relevant practice

1. Relevant practice concerning the grounds for pre-trial detention

90. In its decision no. U-III-3698/2003 of 28 September 2004, the Constitutional Court examined the conditions under which pre-trial detention could be ordered and extended under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads:

“Before every extension of pre-trial detention, [the competent court] must examine all the circumstances of the case so as to establish whether the grounds for detention still persist. The decision on detention must be reasoned and based on rational grounds justifying such a measure - with the aim of establishing that the detention is a necessary legal measure securing the presence of the defendant (the accused) during the proceedings or that it is necessary and justified because it is obvious in the circumstances that the protection of an important public interest is so relevant that it outweighs, irrespective of the presumption of innocence, the constitutional principle of freedom.”

91. On 28 July 2010 the Constitutional Court, in case no. U-III-3804/2010, dismissed a constitutional complaint lodged by an appellant who had been detained pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) on charges of war crimes against the civilian population. The relevant part of the decision reads:

“[T]he offence under Article 120 § 1 of the Criminal Code is one of the gravest criminal offences. In the circumstances of the present case, given the manner in which the offence was committed, the severity of the likely sentence and the particularly grave consequences of the crime, the proceedings would in principle be complex and lengthy. The Constitutional Court therefore finds that the impugned decision of the Supreme Court is in compliance [with the Constitution and the relevant law].”

92. In its decision no. Kž 174/11-4 of 8 April 2011, the Supreme Court explained the underlying purpose of pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) in the following manner:

“The purpose of pre-trial detention under Article 102 § 4 (2) of the Code of Criminal Procedure is not to prevent the defendant from hindering the proceedings, as is the case under Article 102 § 1 (1), (2) and (3) of the Code of Criminal Procedure. The distinct purpose of pre-trial detention under this provision is to prevent persons whose actions provoke particular moral condemnation from remaining at large, which could be condemned by the public. Thus it would diminish the reputation of the criminal justice system and the public’s faith in it. ...”

2. Relevant practice concerning compensation for unjustified detention

93. In decision no. U-I-2023/2002 of 7 December 2005 the Constitutional Court noted:

“[Article 25 § 4 of the Constitution] provides that anyone who has been unlawfully deprived of his liberty shall be entitled to compensation and a public apology. It follows that anyone who has been deprived of his liberty contrary to the law has a right to compensation for pecuniary and non-pecuniary damage, under the conditions and procedure established by law. The Constitution does not set out the conditions under which a person can claim damages. It was left for the lawmaker to regulate those conditions.”

94. In decisions nos. U-III-1839/2006 of 7 May 2009 and U-III- 2710/2010 of 25 April 2013 the Constitutional Court confirmed the availability of the remedy for unlawful or unjustified detention under Article 480 of the Code of Criminal Procedure.

95. In decision no. U-III-1839/2006 of 7 May 2009 the Constitutional Court pointed out that a distinction should be made between the possibility of obtaining damage for allegedly unjustified detention, related to the existence of relevant reasons for detention, and the possibility of obtaining damage when the defendant had been detained but was subsequently acquitted. The relevant part of the decision reads:

“The Constitutional Court points out that for the assessment of a claim for damages for unjustified deprivation of liberty under Article 480 § 1 (1) of the Code of Criminal Procedure it is irrelevant [to assess] the reasons for which the detention had been ordered, its lawfulness or the reasons for which the proceedings were discontinued. In application of the cited provision what is relevant is the outcome of the proceedings (that criminal proceedings would not be instituted against the person who had been detained or that the proceedings were finally discontinued or that the person was finally acquitted or the charges against him or her were dismissed).”

C. Relevant domestic legal theory

96. In an article entitled “Duration of Detention in the Light of International Standards and Domestic Law and Practice” (Trajanje pritvora u svjetlu međunarodnih standarda te domaćeg prava i prakse) Dr Z. Đurđević and D. Tripalo explained that it was the settled practice of the domestic courts to order pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) only in the context of specific criminal offences which were of a particularly serious nature, in terms of the manner in which they had been perpetrated or their specific consequences. They also noted that, although it was not expressly stated in the relevant domestic law, a historical and comparative interpretation of the relevant provisions of the Code of Criminal Procedure led to the conclusion that the underlying reason for ordering pre-trial detention on the grounds of gravity of the charges was to protect public safety and legal order in cases of the most serious crimes; or, more precisely, to protect the public from great disturbance and to ensure public confidence in the functioning of the judiciary (Z. Đurđević and D. Tripalo, “Trajanje pritvora u svjetlu međunarodnih standarda te domaćeg prava i prakse”, 13(2) Hrvatski ljetopis za kazneno pravo i praksu (2006), pp. 573-576).

III. RELEVANT INTERNATIONAL MATERIAL

A. Council of Europe

97. The relevant part of Committee of Ministers Recommendation Rec(2006)13 to member states of 27 September 2006 on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse provides:

“II. The use of remand in custody

Justification

6. Remand in custody shall generally be available only in respect of persons suspected of committing offences that are punishable by imprisonment.

7. A person may only be remanded in custody where all of the following four conditions are satisfied:

a. there is reasonable suspicion that he or she committed an offence; and

b. there are substantial reasons for believing that, if released, he or she would either (i) abscond, or (ii) commit a serious offence, or (iii) interfere with the course of justice, or (iv) pose a serious threat to public order; and

c. there is no possibility of using alternative measures to address the concerns referred to in b.; and

d. this is a step taken as part of the criminal justice process.

8. [1] In order to establish whether the concerns referred to in Rule 7b. exist, or continue to do so, as well as whether they could be satisfactorily allayed through the use of alternative measures, objective criteria shall be applied by the judicial authorities responsible for determining whether suspected offenders shall be remanded in custody or, where this has already happened, whether such remand shall be extended.

[2] The burden of establishing that a substantial risk exists and that it cannot be allayed shall lie on the prosecution or investigating judge.

9. [1] The determination of any risk shall be based on the individual circumstances of the case, but particular consideration shall be given to:

a. the nature and seriousness of the alleged offence;

b. the penalty likely to be incurred in the event of conviction;

c. the age, health, character, antecedents and personal and social circumstances of the person concerned, and in particular his or her community ties; and

d. the conduct of the person concerned, especially how he or she has fulfilled any obligations that may have been imposed on him or her in the course of previous criminal proceedings.”

B. Case-law of the international criminal tribunals

1. International Criminal Tribunal for the former Yugoslavia

98. In the Order denying a motion for provisional release, in the case of The Prosecutor v. Tihomir Blaškić, no. IT-95-14, on 20 December 1996 a Trial Chamber of the ICTY held as follows:

“CONSIDERING that both the letter of this text and the spirit of the Statute of the International Tribunal require that the legal principle is detention of the accused and that release is the exception; that, in fact, the gravity of the crimes being prosecuted by the International Tribunal leaves no place for another interpretation even if it is based on the general principles of law governing the applicable provisions in respect of national laws which in principle may not be transposed to international criminal law; ...”

99. In the case of The Prosecutor v. Rahim Ademi, no. IT-01-46-PT, the relevant part of the Trial Chamber’s order on a motion for provisional release of 20 February 2002 reads:

“12. In addition to those that are still included, Rule 65(B) originally included a requirement that provisional release could be ordered by a Trial Chamber “only in exceptional circumstances.” Under this rule it seemed that detention was considered to be the rule and not the exception. However, some decisions issued by Trial Chambers concluded that the fact that the burden was on the accused and that he or she had to show that exceptional circumstances existed before release could be granted, was justified given the gravity of the crimes charged and the unique circumstances in which the Tribunal operated.

13. The requirement to show “exceptional circumstances” meant that in reality Trial Chambers granted provisional release in very rare cases. These were limited to those where for example, very precise and specific reasons presented themselves which leant strongly in favour of release. Thus, for example, Trial Chambers, before the amendment was adopted, accepted that a life-threatening illness or serious illness of the accused or immediate family members constituted exceptional circumstances justifying release, while illnesses of a less severe nature did not. As stated, the burden remained on an accused at all times to demonstrate to the satisfaction of the Trial Chamber that such circumstances existed. Should the Trial Chamber conclude that they did not, release would not be ordered.

14. After amendment of the rule, an accused no longer needed to demonstrate that such “exceptional circumstances” existed. Trial Chambers seem to have taken two approaches to the new provision. Most Trial Chambers have continued to find that the amendment did not change the other requirements in the Rule and that provisional release was not now the norm. They considered that the particular circumstances of each case should be assessed in light of Rule 65(B) as it now stood. The burden still remained on the accused to satisfy the Trial Chamber that the requirements of Rule 65(B) had been met. This was justified by some given the specific functioning of the Tribunal and absence of power to execute arrest warrants. The second approach seems to have been the following. It has been concluded that based on international human rights standards, “de jure pre-trial detention should be the exception and not the rule as regards prosecution before an international court.” The Trial Chamber in question referred to the fact that, at the Tribunal, in view of its lack of enforcement powers, “pre-trial detention de facto seems to be...the rule.” In addition, it stated that one must take account of the reference to serious crimes. Nevertheless, it found that, “any system of mandatory detention on remand is per se incompatible with Article 5(3) of the Convention (see Ilijkov v. Bulgaria , ECourtHR, Decision of 26 July 2001, para. 84). Considering this, the Trial Chamber must interpret Rule 65 with regard to the factual basis of the single case and with respect to the concrete situation of the individual human being and not in abstracto.”

2. International Criminal Tribunal for Rwanda

100. In its decision on a defence motion for release in the case of The Prosecutor v. Théoneste Bagosora et al., no. ICTR-98-41-T, on 12 July 2002 a Trial Chamber of the International Criminal Tribunal for Rwanda noted the following:

“27. The Chamber notes that in certain circumstances, six years of pre-trial detention may be a factor in the consideration of exceptional circumstances warranting the release of an accused. However, the length of current or potential future detention of the Accused cannot be considered material in these circumstances because it does not mitigate in any way that the Accused, who is charged with the grave offences coming under the subject matter jurisdiction of this Tribunal, which offences carry maximum term of imprisonment of his life, may be a flight risk or may pose a threat to witnesses or to the community if he were to be released. Detention under Rule 65 is intended to ensure the safety of the community and the integrity to the trial process. The Chamber observes that the Accused even while in custody found the opportunity to intentionally absent himself from the trial proceedings of 2 April 2002.”

3. International Criminal Court

101. The relevant part of the Decision of a Pre-Trial Chamber on the application for the interim release of Thomas Lubanga Dyilo of 18 October 2006, in the case of The Prosecutor v. Thomas Lubanga Dyilo, no. ICC‐01/04‐01/06, reads:

“CONSIDERING that since pre‐trial detention cannot be extended to an unreasonable degree; that reasonableness cannot be assessed in abstracto but depends on the particular features of each case; and that to assess the reasonableness of the detention, it is particularly important to assess the complexity of the case; ...”

THE LAW

I. JOINDER OF THE APPLICATIONS

102. The two applications in the present case (nos. 37762/12 and 23530/13) raise the same issues. The Court therefore finds that they should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 (c) AND 3 OF THE CONVENTION

103. The applicants complained that the national courts had acted arbitrarily when extending their pre-trial detention and in particular that their continued detention had been excessive and had not been based on relevant and sufficient reasons. They relied on Article 5 §§ 1 (c) and 3 of the Convention.

104. The Court, being the master of characterisation to be given in law to the facts of the case (see, for instance, Margaretić v. Croatia, no. 16115/13, § 75, 5 June 2014), finds that, in so far as the applicants’ complaints are not inadmissible (see paragraph 113 below), they fall to be examined under Article 5 § 3 of the Convention, which reads as follows:

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

A. Admissibility

1. The first applicant’s complaint

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

2. The second applicant’s complaint

106. The Government submitted that the second applicant could no longer claim to be a victim of a violation of Article 5 of the Convention, given that the Constitutional Court had expressly recognised a violation of his right to liberty related to his continued pre-trial detention. According to the Government, it therefore remained open for the second applicant to seek damages for his allegedly unjustified detention, as provided for under the relevant domestic law. Similarly, the applicant could claim compensation for the overall period he had spent in detention given that he was eventually acquitted. The Government further provided documents showing that in fact subsequently the applicant had availed himself of that possibility and he had been accordingly awarded an adequate compensation of damages.

107. The second applicant maintained that he had been a victim of a violation of the Convention related to his unjustified pre-trial detention.

108. The Court reiterates that under Article 34 of the Convention it “may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 179, ECHR 2006-V; Burdov v. Russia, no. 59498/00, § 30, ECHR 2002-III; and Trepashkin v. Russia, no. 36898/03, § 67, 19 July 2007).

109. The Court has repeatedly held that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Margaretić, cited above, § 77).

110. The Court notes in the case at issue that in its decision of 13 January 2014 the Constitutional Court expressly found a violation of the second applicant’s right to liberty related to the lack of relevant and sufficient reasons for his continued pre-trial detention in the period between 30 September and 9 December 2013, including the flagrant unlawfulness of his detention between 2 and 9 December 2013 (see paragraph 85 above). However, the decision of the Constitutional Court did not cover the entire period of the second applicant’s detention. Indeed, by a decision of 27 September 2013 the Constitutional Court, after having examined all the relevant circumstances of the case, found that the second applicant’s detention in the period preceding its examination had been based on relevant and sufficient reasons (see paragraph 80 above).

111. The Court therefore finds that the findings of the Constitutional Court of 13 January 2014 undoubtedly represent a decision in the second applicant’s favour, by which the relevant national authorities expressly acknowledged a breach of his rights, guaranteed under Article 5 §§ 1 (c) and 3 of the Convention, for the period between 30 September and 9 December 2013. On the other hand, in view of the Constitutional Court’ findings of 27 September 2013, it would follow that the Constitutional Court, as the highest court in Croatia, considered that the second applicant’s detention in the period following his arrest until 30 September 2013 had been based on relevant and sufficient reasons.

112. The Court further notes that following his acquittal by the Osijek County Court on 9 December 2013, which was upheld by the Supreme Court (see paragraphs 15-17 above), the second applicant brought a civil action in the Osijek Municipal Court seeking damages for his allegedly unjustified detention during the criminal proceedings before the Osijek County Court. By a judgment of 15 October 2015, which became final on 5 November 2015, the Osijek Municipal Court awarded the applicant HRK 108,900 (approximately 14,300 euros) in non-pecuniary damage plus the applicable statutory interest (see paragraph 86 above). However, the Osijek Municipal Court made no acknowledgment in the judgment concerned that the length of the applicant’s detention had been excessive or unlawful (see further paragraphs 89 and 95 above).

113. In these circumstances, although the Osijek Municipal Court in its judgment of 15 October 2015 did not expressly acknowledge the breach of the applicant’s rights under Article 5, the Court considers, given the explicit findings of the Constitutional Court for the period between 30 September and 9 December 2013 (see paragraph 110 above), that it can be inferred that for the period at issue the applicant received acknowledgment of the breach of his rights under Article 5 of the Convention and that he received an appropriate redress. Accordingly, with regard to the period of his detention between 30 September and 9 December 2013 the applicant has lost his victim status. His complaint in this respect should be therefore declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

114. On the other hand, with regard to the second applicant’s complaint about the excessive length and lack of relevant and sufficient treasons for his pre-trial detention following his arrest until 30 September 2013, the Court notes that there has been no acknowledgment either express or implied, by any of the competent domestic authorities that the applicant’s detention had been excessive (see Labita v. Italy [GC], no. 26772/95, § 143, ECHR 2000-IV). The Court therefore finds that the second applicant can still claim to be a victim in respect of his complaint under Article 5 § 3 of the Convention for the period of his pre-trial detention between 20 June 2011, the day when he was first deprived of liberty (see paragraph 18 above), and 30 September 2013 (see paragraph 113 above). The Government’s objection in this respect should thus be rejected.

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

B. Merits

1. The parties’ arguments

(a) The applicants

(i) The first applicant

116. The first applicant contended that his pre-trial detention had not been based on relevant and sufficient reasons and that it had been disproportionate in the circumstances. In particular, the domestic courts had ordered and several times extended his pre-trial detention solely on the grounds of gravity of the charges, without making a relevant assessment of the circumstances of the case. Moreover, in the first applicant’s view, the domestic courts’ decisions lacked the relevant reasoning as to the existence of a reasonable suspicion that he had committed the offence at issue, which had made his detention in itself unlawful and unjustified.

117. The first applicant further argued that the domestic courts’ concept of the gravity of the charges had been unclear and that their reasoning had been arbitrary given that there was nothing to suggest that his release from detention would disturb the public order. The first applicant also stressed that in view of his state of health and his personal situation, the overall length of his detention had been excessive and unjustified.

(ii) The second applicant

118. The second applicant submitted that his pre-trial detention had been based only on a reasonable suspicion that he had committed war crimes against the civilian population. The domestic courts’ reliance on the gravity of the charges had been general and abstract and had not been supported by an assessment of all the particular circumstances of the specific offences with which he had been charged. In his view, there had been nothing to justify the fear that his release from detention would disturb the public order, since a number of witnesses from the Serbian national minority had essentially testified in his favour.

119. The second applicant also contended that the Osijek County Court and the Supreme Court had unjustifiably ignored the instructions of the Constitutional Court concerning the necessity of his continued detention, in particular with regard to the possibility of disturbance of the public order. In his view, such conduct on the part of the competent courts had rendered the overall period of his detention unlawful and unjustified.

(b) The Government

120. The Government argued that throughout the applicants’ detention there had been a reasonable suspicion that they had committed the offences with which they had been charged. Their detention had initially been based on the grounds of a risk of collusion and the gravity of the charges. The assessment of the risk of collusion had been based on the possibility that they might try to influence the witnesses and thus hinder the proper conduct of the proceedings. However, once the witnesses had been questioned, the applicants’ detention was no longer extended on that ground.

121. Concerning the extension of the applicants’ detention on the grounds of gravity of the charges, the Government stressed that the relevant domestic law and practice were clear in terms of the requirements which needed to be met so that pre-trial detention could be ordered on grounds of the gravity of the charges. The competent courts were in particular required to carry out a detailed and specific assessment of the gravity of the charges, that is to say the manner in which the offence had allegedly been committed and its consequences, as required under the Court’s case-law in Šuput (see Šuput v. Croatia, no. 49905/07, 31 May 2011).

122. The Government contended that the crimes with which the applicants were charged concerned particularly serious circumstances of war crimes against the civilian population, capable of causing significant disturbance in the local community where those crimes had occurred. In such circumstances, the applicants’ detention in relation to such serious charges against them had been necessary and justified. The Government also pointed out that the case against the applicants was particularly complex, which in their view justified the overall length of the applicants’ detention. They stressed that the domestic courts had been diligent in their conduct of the proceedings in the applicants’ case.

2. The Court’s assessment

(a) General principles

123. The Court reiterates that Article 5 of the Convention is in the first rank of the fundamental rights that protect the physical security of an individual, and that three strands in particular may be identified as running through the Court’s case-law: the exhaustive nature of the exceptions, which must be interpreted strictly and which do not allow for the broad range of justifications under other provisions (Articles 8 to 11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, procedurally and substantively, requiring scrupulous adherence to the rule of law; and the importance of the promptness or speediness of the requisite judicial controls under Article 5 §§ 3 and 4 (see, for instance, McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006-X).

124. The Court has repeatedly held that the question whether a period of detention is reasonable, under the second limb of Article 5 § 3, cannot be assessed in abstracto. Whether it is reasonable for an accused person to remain in detention must be assessed in each case. Continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, 26 January 1993, Series A no. 254-A; Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000-XI; and Idalov v. Russia [GC], no. 5826/03, § 139, 22 May 2012).

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

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

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

128. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, amongst many others, Idalov, cited above, § 140; see also, B. v. Austria, 28 March 1990, § 42, Series A no. 175; Toth v. Austria, 12 December 1991, § 67, Series A no. 224; Contrada v. Italy, 24 August 1998, § 54, Reports 1998-V; I.A. v. France, 23 September 1998, § 102, Reports 1998-VII; and Krikunov v. Russia, no. 13991/05, § 36, 4 December 2014).

(b) Application of these principles to the present case

129. The Court notes that the first applicant was arrested and taken into custody on 20 June 2011 (see paragraph 18 above) and that he was convicted at first instance on 9 December 2013 (see paragraph 15 above).

130. According to the Court’s well-established case-law, in determining the length of detention under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day he is released (see, for example, Fešar v. the Czech Republic, no. 76576/01, § 44, 13 November 2008) or when the charge was determined, even if only by a court of first instance (see Belevitskiy v. Russia, no. 72967/01, § 99, 1 March 2007).

131. Accordingly, the total period of the first applicant’s detention to be taken into consideration amounts to two years, five months and nineteen days.

132. The Court further notes, in view of its findings above (see paragraphs 113-114 above), that the total period of the second applicant’s detention to be examined, between 20 June 2011 and 30 September 2013, amounts to two years, three months and ten days.

(i) Grounds for detention

133. The Court observes that in the period between 20 June and 19 December 2011, during the investigation of the allegations that the applicants had committed war crimes against the civilian population, in addition to the existence of a reasonable suspicion that they had committed the crimes at issue, they were detained on the grounds of risk of collusion by suborning witnesses and the gravity of the charges (see paragraphs 18-24 above). On 19 December 2011, after they had been indicted in the Osijek County Court on charges of war crimes against the civilian population, their detention was extended on the grounds of gravity of the charges related to the possibility of public disturbance, which was the basis for continuing to remand them in custody until the first applicant’s conviction and the second applicant’s release on 9 December 2013.

134. The Court notes that the reasonable suspicion on which the domestic courts based their decisions followed from the extensive evidence obtained during the investigation as well as the statements of numerous witnesses questioned during the proceedings (see, for instance, paragraphs 10 and 19 above). Throughout the period of the applicants’ pre-trial detention, when ordering and extending their detention the domestic courts cited the existence of a reasonable suspicion that they had committed the crimes at issue. A three-judge panel of the Osijek County Court cited the same reasons when confirming the indictment against them (see paragraph 12 above).

135. In view of the findings of the domestic courts, which are based on reasonable and convincing grounds (see, by contrast, Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 97, 22 May 2014), and the evidence available before it, the Court accepts that throughout the period of the applicants’ detention under consideration a reasonable suspicion existed that they had committed the war crimes against the civilian population.

136. In these circumstances the Court will examine whether the other grounds cited by the judicial authorities continued to justify the applicants’ deprivation of liberty during the investigation and trial.

(α) The applicants’ detention during the investigation

137. The Court notes that in the six-month period between 20 June and 19 December 2011, during the investigation of the allegation that the applicants had committed war crimes against the civilian population, the national courts justified their pre-trial detention on the grounds not only of the nature of the crimes allegedly committed, but also of the risk that, if at large, they might suborn witnesses who needed to be questioned during the investigation.

138. In this connection, the Court reiterates that detention on the grounds that pressure might be brought to bear on witnesses can be accepted at the initial stages of the proceedings (see Jarzyński v. Poland, no. 15479/02, § 43, 4 October 2005). In the long term, however, the requirements of the investigation do not suffice to justify the detention of a suspect, as in the normal course of events the risks alleged diminish over time as inquiries are completed, statements are taken and verifications are carried out (see Clooth v. Belgium, 12 December 1991, § 44, Series A no. 225). Moreover, the risk of the accused hindering the proper conduct of the proceedings cannot be relied upon in abstracto; it has to be supported by factual evidence (see Becciev v. Moldova, no. 9190/03, § 59, 4 October 2005).

139. In the present case, at the initial stages of the applicants’ detention, the investigating judge, and a three-judge panel of the Osijek County Court reviewing his decisions, noted the exact number of witnesses to be questioned during the investigation and the reasons for suggesting that there was a risk that the applicants might suborn them. In particular, they pointed out the existence of a possibility that the applicants might contact the witnesses, and the fact that some of the witnesses had already been approached and threatened in connection with their statements in the criminal proceedings at issue. The domestic courts therefore held that there was a risk that, if at large, the applicants could further influence the witnesses and thus hinder the proper conduct of the proceedings (see paragraphs 19 and 21 above; and compare, by contrast, Mikalauskas v. Malta, no. 4458/10, § 121, 23 July 2013).

140. However, as the investigation advanced and the witnesses were questioned, the investigating judge, relying on the risk of collusion, clearly stated the number of witnesses who still needed to be questioned (see paragraphs 22 and 24 above), and after the completion of the investigation, the applicants’ detention was no longer extended on those grounds (see paragraph 28 above).

141. It follows that the applicants’ detention during the investigation in the period in question was based on relevant and sufficient reasons.

(β) The applicants’ detention pending trial

142. The Court observes that in their decisions to extend the applicants’ pre-trial detention from 19 December 2011 to 9 December 2013, the national courts, - apart from the persisting reasonable suspicion that the applicants had committed the war crimes against the civilian population - relied only on the nature and gravity of the charges at issue, associated with the possibility of public disturbance.

143. In this connection, the Court has repeatedly held that although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence (see, amongst many others, Ilijkov, cited above, § 81; Khudoyorov v. Russia, no. 6847/02, § 180, ECHR 2005-X; Belevitskiy, cited above, § 101 ; Getoš-Magdić v. Croatia, no. 56305/08, § 85, 2 December 2010; and Sigarev v. Russia, no. 53812/10, § 53, 30 October 2014).

144. This is particularly true in instances in which detention is ordered or extended by relying on the gravity of the charges without providing any relevant explanation pertinent to the particular circumstances of a case (see, for instance, Orban v. Croatia, no. 56111/12, § 58, 19 December 2013). It also applies in cases where the characterisation in law of the facts, and thus the sentence faced by the accused, is determined by the prosecution without judicial review of whether the evidence obtained supports a reasonable suspicion that the accused has committed the alleged offence (see Ilijkov, cited above, § 81; Veliyev v. Russia, no. 24202/05, § 148, 24 June 2010; and by contrast, J.M. v. Denmark, no. 34421/09, § 62, 13 November 2012); likewise, where remand in custody is associated with a system of mandatory detention, which is per se incompatible with Article 5 § 3 of the Convention (see Rokhlina v. Russia, no. 54071/00, §§ 66-67, 7 April 2005), or where the gravity of the charges or the severity of the sentence are relied on as the decisive factor to justify unreasonably protracted periods of pre-trial detention (see, for example, Jėčius v. Lithuania, no. 34578/97, § 94, ECHR 2000-IX; and Sutyagin v. Russia, no. 30024/02, §§ 142-143, 3 May 2011).

145. However, in some instances concerning particularly serious crime, the nature and gravity of the charges against a defendant is a factor weighing heavily against his or her release and in favour of remanding him or her in custody(see, for instance, Van der Tang v. Spain, 13 July 1995, §§ 61-63, Series A no. 321; Dudek v. Poland, no. 633/03, § 38, 4 May 2006; and Kusyk v. Poland, no. 7347/02, § 38, 24 October 2006). Indeed, regard to the gravity of the charges may lead to the conclusion that some other related legitimate grounds for detention exist, such as the protection of public order from disturbance (see Letellier v. France, 26 June 1991, § 51, Series A no. 207; I.A. v. France, cited above, § 104), or the public’s sense of justice (see J.M., cited above, § 62).

146. Accordingly, in the cases of Getoš-Magdić and Šuput (both cited above) concerning complaints about prolonged pre-trial detention in criminal proceedings on charges of war crimes against the civilian population, where the extension was based solely on the gravity of the charges, the Court attached particular significance to the seriousness of the crime at issue and the nature and gravity of the charges against the applicants. It observed, in particular, that Article 102 § 1 (4) of the Code of Criminal Procedure did not provide for mandatory remand in custody and that the domestic courts had examined in detail the particular seriousness of the specific circumstances of the case. Thus, given that the detention on the grounds of gravity of the charges had not lasted excessively long in the circumstances, and in view of the seriousness of the crime at issue and the nature and gravity of the charges against the applicants, the Court considered that the domestic authorities’ reliance solely on the gravity of charges was a relevant ground for the applicants’ detention (see Getoš-Magdić, cited above, §§ 80-91, and Šuput, cited above, §§ 101-10).

147. Against the above background, the present case is distinguishable from the Court’s case-law in which it found that the domestic courts’ reliance on the gravity of the charges or the severity of the sentence as the decisive factor to justify long periods of remand in custody had breached Article 5 § 3. This conclusion is based on the following reasons.

148. The Court firstly notes, as it observed in Getoš-Magdić and Šuput, that Article 102 § 1 (4) of the Code of Criminal Procedure, on which the domestic courts relied when extending the applicants’ detention, provided for a possibility of detention where a reasonable suspicion existed that the defendant had committed a criminal offence carrying a sentence of at least twelve years’ imprisonment and where detention was justified by the manner in which the crime had been committed or other particularly serious circumstances (see paragraph 89 above). That provision therefore did not provide for mandatory detention; nor was it applied to that effect in the applicants’ case (compare Getoš-Magdić, cited above, §§ 82-84, and Šuput, cited above, §§ 103-05).

149. The applicants’ detention was rather extended under Article 102 § 1 (4) of the Code of Criminal Procedure on the grounds that they were charged with a very serious crime, carrying a sentence of twenty years’ imprisonment (see paragraphs 88 and 89 above), and by the courts’ reliance on the specific elements of the charges against them. In particular, the national courts repeatedly explained in detail the charges against the applicants.

150. With regard to the first applicant the domestic courts cited considerations such as the fact that the charges concerned the first applicant’s actions and omissions in his capacity as commander of the police units in the wider area of Sisak and that they were related to physical and mental ill-treatment of detained civilians, some of whom had been beaten with such severity as to cause bodily harm, arbitrary arrests, shooting and bombing of family houses, locking civilians in basements without windows or light, and taking civilians to unknown locations and shooting them or killing them with hard or sharp objects. All of the above was associated with an element of ethnic hatred (see paragraph 28 above). With regard to the second applicant, the domestic courts in particular took into account the fact that he was charged with belonging to an organised group of people who, as members of a special police unit, carried out unlawful arrests, ill-treatment and the killing of people of Serbian origin, including five members of the same family. He was also charged with the killing of another man and the arbitrary abduction of his sons (see paragraphs 67 and 68 above).

151. It follows that the reasons relied on by the national authorities cannot be said to have been stated in abstracto, nor can it be said that at any point they ordered or extended the applicants’ detention on identical or stereotypical grounds, using some pre-existing template or formalistic and abstract language (compare Getoš-Magdić, cited above, § 86; and Šuput, cited above, § 107; and, by contrast, Fırat v. Turkey, no. 37291/04, § 24, 30 June 2009).

152. In this connection, the Court also observes that, unlike some other legal systems where the sentence faced by the accused is determined by the prosecution without any judicial review (see, for example, Artemov v. Russia, no. 14945/03, § 77, 3 April 2014), in the Croatian legal system although the public prosecution is responsible for drawing up the indictment, it is for the domestic courts to verify regularly during the pre-trial detention the existence of a reasonable suspicion that the offence at issue was committed. In so doing, they must review whether the particular charges against the accused are supported by the relevant evidence (see, for instance, paragraphs 12 and 28-30, 67-68 and 89 above; compare J.M., cited above, § 62).

153. Furthermore, the Court notes that when reviewing the applicants’ continued detention on the grounds of gravity of the charges, the domestic courts stressed that, in view of the seriousness of the specific charges against them, their remand in custody was necessary in order to maintain the public order (see, by contrast, Orban, cited above, § 61). The domestic courts in particular relied on the fact that the crimes at issue provoked public condemnation and if the perpetrators remained at large, public order would be disturbed (see paragraphs 30-32, 46, 52 and 59 above). They justified such findings by the fact that those crimes had been committed against the Serbian minority in the relatively small community of Sisak, where the consequences of the war were still felt and the process of normalisation of the relations between the ethnic communities was still ongoing. In these circumstances, the domestic courts held that if the applicants, as persons suspected of having committed war crimes against the civilian population, were released from detention, it could cause public disturbance and diminish the public’s trust in the judicial system, as well as undermine the process of securing a peaceful coexistence of the local population (see paragraphs 53, 55, 78 and 80 above).

154. In this connection the Court notes that although considerations such as the prevention of social disturbance and the protection of public order were not expressly stated in the relevant domestic law (see Peša v. Croatia, no. 40523/08, § 103, 8 April 2010), they are generally seen as underlying reasons for ordering and extending pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure (see paragraphs 92 and 96 above). The Court also notes that the prevention of a threat to public order is commonly seen as a legitimate ground for detention (see paragraph 97 above), and as such is accepted in the Court’s case-law (see, for example, Peša, cited above, § 101; and J.M., cited above, § 62), and in international criminal-law practice (see, for instance, paragraph 100 above). Indeed, given the specific nature of the charges of war crimes against civilian population, this ground for detention appears particularly pertinent to the cases involving charges of such grave breaches of fundamental human rights, which in the general public commonly provoke particular moral condemnation (see paragraph 92 above).

155. However, as the Court explained for the first time in the Letellier case (cited above), this ground can be regarded as relevant and sufficient only if it is based on facts capable of showing that the accused’s release would threaten public order. In addition, detention will continue to be legitimate only if public order remains threatened; its continuation cannot be used to anticipate a custodial sentence (see Letellier, cited above, § 51; I.A., cited above, § 104; and Kemmache v. France (no. 1 and no. 2), 27 November 1991, § 52, Series A no. 218).

156. In the present case, the conclusions of the domestic courts were based on the specific facts pertinent to the concrete charges against the applicants, and in particular their effects on the victims and the local community at issue. Given that the national courts are best placed to assess the effects associated with the perpetration of war crimes against the civilian population on the public in the context of post-conflict reconciliation in a society, it is reasonable to assume that there was a risk of social disturbance and a threat to public order in the event that the alleged perpetrators of those crimes were released, which must have reasonably persisted during the period in which the applicants were detained pending trial (compare Tomasi v. France, 27 August 1992, § 91, Series A no. 241-A). This is especially so given that the crimes at issue amounted to a negation of the very foundations of the Convention, which produce the long-lasting effects (see the approach in Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 150-51, ECHR 2013; see further Marguš v. Croatia [GC], no. 4455/10, § 133, ECHR 2014 extracts).

157. Lastly, the Court acknowledges that the relevant issues pertaining to the duration of and grounds for the applicants’ detention were also examined by the national courts, in particular by the Supreme Court and the Constitutional Court, which carried out a detailed assessment of all the relevant circumstances of the case and addressed the specific concerns related to the applicants’ continued detention (see paragraphs 52-55 and 80-85 above).

(ii) Conduct of the proceedings

158. It remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings.

159. In this regard, the Court observes that the criminal case at issue was very complex, requiring the collection and examination of voluminous documentation and evidence, including a number of reports on the crime-scene investigations, autopsies and ballistic expertise, and the questioning of some 200 witnesses (see paragraphs 10 and 19 above).

160. The Court also notes that the domestic authorities diligently conducted all the relevant procedural actions during the investigation and that the trial progressed regularly without any unexplained periods of delay (see paragraphs 13-15 above). There is therefore nothing before the Court which would allow it to criticise the domestic authorities for failing to observe “special diligence” in the handling of the applicants’ case.

161. Against the above background, and in the particular circumstances of the present case, the Court finds that the applicants’ pre-trial detention, throughout the period under the Court’s scrutiny, was based on relevant and sufficient reasons, with due observance of the requirement of “special diligence” in the proceedings.

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

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

163. The first applicant complained, invoking Article 6 § 2 of the Convention, that in extending his pre-trial detention the national courts had breached his right to the presumption of innocence.

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins the applications;

2. Declares the complaint of the first applicant and the complaint of the second applicant for the period between 20 June 2011 and 30 September 2013, concerning the length and reasoning for their pre-trial detention, under Article 5 § 3 of the Convention, admissible and the remainder of the applications inadmissible;

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

Done in English, and notified in writing on 26 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Işıl Karakaş
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> MILANKOVIC AND BOSNJAK v. CROATIA - 37762/12 (Judgment (Merits) : Court (Second Section)) [2016] ECHR 391 (26 April 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/391.html Cite as: [2016] ECHR 391