SOS v. CROATIA - 26211/13 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2015] ECHR 1048 (01 December 2015)

In the case of Šoš 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,
          Jon Fridrik Kjølbro,
          Georges Ravarani, judges,
and Abel Campos, Deputy Section Registrar,

Having deliberated in private on 10 November 2015,

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

PROCEDURE

1. The case originated in an application (no. 26211/13) 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 a Croatian national, Mr Vlatko Šoš (“the applicant”), on 3 April 2013.

2. The applicant was represented by Ms G. Grubeša, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged that his pre-trial detention had been arbitrary and excessively lengthy and that there had been no effective review procedure before the Constitutional Court in that respect, contrary to Article 5 §§ 1 (c), 3 and 4 of the Convention.

4. On 3 June 2013 the complaints were communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1980 and lives in Zagreb.

A. Criminal proceedings against the applicant

6. On 19 May 2011 the Split Office of the National Police Unit for the Suppression of Corruption and Organised Crime (Policijski nacionalni ured za suzbijanje korupcije i organiziranog kriminaliteta, Odjel za suzbijanje korupcije i organiziranog kriminaliteta Split; hereinafter: “the police”) lodged a criminal complaint against the applicant before the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Državno odvjetništvo, Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: “the State Attorney’s Office”), alleging that he had participated in an organised international drug-trafficking scheme.

7. On the basis of the extensive evidence collected during the preliminary investigation, including through mechanisms of international legal assistance in criminal matters from the authorities in Spain, Slovenia and the Netherlands, and the results of secret surveillance measures, on 20 May 2011 the State Attorney’s Office opened an investigation in respect of the applicant and nine other persons suspected of drug trafficking. In particular, it was alleged that the applicant had participated in an organised drug-trafficking scheme by securing the means of communication between other members of the group.

8. During the investigation, the State Attorney’s Office questioned a number of witnesses and obtained further voluminous evidence from the police. It also commissioned telecommunication expert reports and requested assistance in obtaining evidence from the authorities in Spain, Slovenia, the Czech Republic, Bosnia and Herzegovina and the Netherlands.

9. On 9 November 2011 the State Attorney of the Republic of Croatia (Glavni državni odvjetnik Republike Hrvatske) extended the investigation for a further six months.

10. Following the completion of the investigation, on 16 May 2012 the State Attorney’s Office indicted the applicant and nine other defendants in the Split County Court (Županijski sud u Splitu) on charges of drug trafficking. It alleged that the applicant had facilitated communication between other members of the group operating an international drug-trafficking scheme.

11. On 18 May 2012 the investigating judge forwarded the indictment to the defendants, instructing them that they could submit their comments on it within a period of eight days.

12. On 28 May 2012 the applicant denied the charge, alleging numerous substantive and procedural flaws.

13. Several hearings for the confirmation of the indictment were held before a three-judge panel of the Split County Court. Meanwhile, the defence lawyers challenged the decision on the admissibility of evidence before the Supreme Court.

14. On 23 November 2012 the applicant complained to the Supreme Court of a lack of diligence in the conduct of the proceedings. He pointed out that the Supreme Court had not yet decided on the question of the admissibility of the evidence, which was incompatible with the requirement of due diligence in the conduct of the proceedings.

15. On 25 January 2013 a three-judge panel of the Split County Court confirmed the indictment and referred the case to trial.

16. The criminal proceedings against the applicant are still pending.

B. Decisions on the applicant’s detention

17. On 19 May 2011 the applicant was arrested in connection with the criminal complaint lodged against him by the police (see paragraph 6 above).

18. The next day, after hearing the applicant’s defence, the State Attorney’s Office ordered that he be remanded in custody for a period of forty-eight hours.

19. Following the opening of the investigation against him, on 20 May 2011 the State Attorney’s Office asked an investigating judge (sudac istrage) of the Split County Court to order the applicant’s pre-trial detention (istražni zatvor). It also requested that the other defendants be remanded in custody.

20. On the same day the investigating judge accepted the request and ordered the applicant’s pre-trial detention for one month under Article 123 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and gravity of charges). He also ordered the pre-trial detention of nine other defendants in the proceedings. The relevant part of the decision reads:

“Reasonable suspicion that the suspects committed the offences at issue follows from the criminal complaint lodged by [the police] and the [supporting material] ...

The pre-trial detention of all the suspects, save for Đ.F. and N.E. who are detained in Spain, was ordered under Article 123 § 1 (2) of the Code of Criminal Procedure. The suspects Š.L. and D.J. ... are still at large and there is therefore a risk that if the other suspects were at large, they could hinder the proper conduct of the proceedings by influencing [Š.L. and D.J.]. In addition, a number of witnesses should be questioned concerning the offences at issue ... and, since they know the suspects or are relatives of theirs, there is a risk that the suspects, if at large, could hinder the proper conduct of the proceedings by influencing the witnesses ...

The pre-trial detention of all the suspects was also ordered under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of the [suspects’] organisation, and the fact that they have allegedly smuggled over 700 kilograms of cocaine, 338 kilograms of which has been seized in Spain, this court finds that it suggests special circumstances justifying the fear that they may reoffend. ...

The pre-trial detention of all the suspects, save for S.R., was also ordered under Article 123 § 1 (4) of the Code of Criminal Procedure. This court finds it necessary to order detention under this provision also so as to ensure the proper conduct of the proceedings, given that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, it is alleged that the suspects have smuggled over 700 kilograms of cocaine, which can be used to make a significant number of individual doses and thus to endanger the health of a high number of persons. Moreover, the suspects have allegedly operated on the territories of several countries, where they organised networks of persons helping them in the commission of the offences, which suggests a particularly organised and systemic approach in the commission of the offences. Apparently large sums of money were also spent for the [distribution and] transport of the drugs from South America. This suggests, in the view of this court, that the circumstances of the offence are particularly serious, surpassing the circumstances in which such offences are ‘usually’ committed ...”

21. The applicant challenged the decision of the investigating judge before a three-judge panel of the Split County Court, arguing that the judge had failed to take into account the extent of his specific participation in the alleged offences at issue. He pointed out that his alleged role in the commission of the offences was peripheral and irrelevant, since his only contact with the case was through the third defendant, whom he had known from the past but had not suspected of being involved in a criminal activity. The applicant also stressed that he was a self-employed car mechanic and had had no previous conflict with the law. He therefore requested that less severe preventive measures be applied for securing his proper participation in the proceedings.

22. On 6 June 2011 a three-judge panel of the Split County Court dismissed the appeals lodged by the applicant and two other defendants. The relevant part of the decision reads:

“It is alleged that the suspects, acting within an organised group, obtained cocaine abroad and transported it to Croatia for the purpose of its further distribution. The proceedings at issue concern not only a serious and socially dangerous offence, but there are also other specific circumstances showing the seriousness of the case. The suspects obtained the drugs in South America, in large quantities of several hundreds of kilograms, and the whole process of transporting the drugs required a high degree of organisation and distribution of work. The quantity of drugs found, namely around 370 grams [sic] of cocaine, is higher than in other [similar cases]. The investigating judge thus correctly concluded that in respect of the suspects S.K. and Vlatko Šoš the circumstances of the offence are particularly serious, which also justifies the fear that the suspects might reoffend. There are therefore sufficient reasons for pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure.

...

Furthermore, since in the further course of the proceedings, as indicated in the investigating judge’s decision, it is necessary to question a number of witnesses who have relevant knowledge of the offences at issue and know the suspects S.K., Vlatko Šoš and S.R., the investigating judge correctly ordered the detention under Article 123 § 1 (2) of the Code of Criminal Procedure.

Given that the investigating judge’s decision ordering the detention is justified, there are no grounds for accepting the requests of the suspects, put forward in the appeals, to replace their detention by alternative measures.”

23. On 17 June 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and gravity of charges), reiterating his previous arguments.

24. The applicant challenged that decision, arguing that it lacked the relevant reasoning concerning the circumstances of the case pertinent to his particular situation. On 7 July 2011 a three-judge panel of the Split County Court dismissed his complaints, endorsing the reasoning of the investigating judge.

25. On 18 August 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). He found that all the relevant witnesses had been questioned and that there was no further possibility of remanding the applicant in detention on the grounds of the risk of collusion. As to the other grounds relied upon for the applicant’s detention, the investigating judge reiterated his previous findings.

26. The applicant lodged an appeal against that decision before a three-judge panel of the Split County Court, arguing that his detention had been constantly extended without providing any reasons relevant to his particular situation. He also requested that his detention be replaced by house arrest.

27. On 27 September 2011 a three-judge panel of the Split County Court dismissed the applicant’s appeal, endorsing the findings of the investigating judge. It provided no reasoning concerning the applicant’s request for the replacement of his detention by house arrest.

28. On 18 October 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads:

“The pre-trial detention of all the suspects was also ordered under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of the [suspects’] organisation, and the fact that they have allegedly smuggled over 700 kilograms of cocaine, 338 kilograms of which has been seized in Spain, this court finds that it suggests special circumstances justifying the fear that they may reoffend. ...

The pre-trial detention of all the suspects, save for S.R., was also ordered under Article 123 § 1 (4) of the Code of Criminal Procedure. This court finds it necessary to order detention under this provision, also so as to ensure the proper conduct of the proceedings, given that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a long prison sentence has been prescribed. Specifically, it is alleged that the suspects have smuggled over 700 kilograms of cocaine, which can be used to make a significant number of individual doses and thus to endanger the health of a high number of persons. Moreover, the suspects have allegedly operated on the territories of several countries, where they organised networks of persons helping them in the commission of the offences, which suggests a particularly organised and systemic approach in the commission of the offences. Apparently large sums of money were also spent for the [distribution and] transport of the drugs from South America. This suggests, in the view of this court, that the circumstances of the offence were particularly serious, surpassing the circumstances in which such offences are ‘usually’ committed ...”

29. The applicant lodged an appeal against the above decision, asking to be released and for less severe preventive measures to be applied. On 28 October 2011 a three-judge panel of the Split County Court dismissed his appeal as ill-founded, reiterating its previous arguments and without providing further reasons for refusing the applicant’s request.

30. On 15 November 2011 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against those decisions, arguing that the reasons given for his continued detention were neither relevant nor sufficient. He pointed out that the Split County Court had collectively extended the pre-trial detention of all the defendants in the proceedings, without taking into account his specific arguments.

31. On 18 November 2011 the investigating judge extended the applicant’s pre-trial detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). In his decision, the investigating judge stated that the initial grounds for the applicant’s detention had not changed. The judge also noted that owing to the complexity of the case, the investigation would be extended for a further six months.

32. The applicant appealed against that decision, arguing that it lacked the relevant reasoning. He also asked to be released on bail or for the application of other less severe preventive measures.

33. On 6 December 2011 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments. It held that, in view of the gravity of the offences at issue, the applicant’s detention could not be replaced by less severe preventive measures, nor could he be released on bail.

34. On 9 and 16 December 2011 the applicant urged the Constitutional Court to decide on his constitutional complaint of 15 November 2011 (see paragraph 30 above).

35. On 22 December 2011 the Constitutional Court declared the applicant’s constitutional complaint of 15 November 2011 inadmissible on the ground that a new decision on his detention had been adopted in the meantime, namely on 18 November 2011 (see paragraph 31 above), and that his detention was no longer based on the impugned decision. This decision was served on the applicant’s representative on 10 January 2012.

36. On 18 January 2012 the investigating judge extended the applicant’s detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) on the ground that the relevant circumstances warranting his detention had not changed.

37. The applicant lodged an appeal against the above decision, arguing that it lacked the relevant reasoning and asking that his detention be replaced by less severe preventive measures.

38. On 31 January 2012 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments concerning the necessity of the defendants’ continued detention.

39. On 14 February 2012 the applicant lodged a constitutional complaint before the Constitutional Court, arguing that in extending his detention throughout the investigation, the court had always used the same wording and phrases. He pointed out that the Split County Court had failed to make a proper assessment of the necessity of his continued detention given that its decisions were merely a reproduction of the same wording provided in the initial decision ordering his detention on 20 May 2011.

40. On 22 February 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the Split County Court. The relevant part of the decision reads:

“The impugned decision of the investigating judge ... provides detailed and clear reasoning with regard to the relevant legal circumstances related to the appellant’s [detention].

The Constitutional Court finds that the impugned decisions comply with the relevant constitutional [requirements] concerning the extension of the appellant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure.”

41. On 16 March 2012 the investigating judge extended the applicant’s detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) on the ground that nothing had changed in the relevant circumstances warranting his continued detention.

42. The applicant appealed against that decision, reiterating his request for release and the application of less severe preventive measures.

43. On 29 March 2012 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments. It found that it was not possible to release him and to apply less severe preventive measures in view of the particular gravity and seriousness of the charges against him.

44. Following the submission of the indictment against the applicant to the Split County Court (see paragraph 10 above), on 18 May 2012 a three-judge panel of that court extended the applicant’s detention pending trial under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) without setting any time-limits for the detention. The relevant part of the decision reads:

“Against the defendant:

...

9. Vlatko Šoš ...

the pre-trial detention is extended and it should continue further

... on the basis of Article 123 § 1 (3) and (4) of the Code of Criminal Procedure ...

Statement of reasons

...

Reasonable suspicion that the suspects have committed the offences at issue follows from the indictment submitted by the [State Attorney’s Office] and the evidence listed in the indictment.

...

With regard to the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš the detention was extended under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of [the defendants’] organisation, and the fact that they have allegedly smuggled large quantities of cocaine for the purpose of its further distribution, 338 kilograms of which has been seized in Spain, this panel finds that it suggests special circumstances justifying the fear that they may reoffend.

The detention of the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš was also extended under Article 123 § 1 (4) of the Code of Criminal Procedure. This panel finds that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, the very fact that [the case] concerns a large number of persons organised in a criminal enterprise for the purpose of trafficking large quantities of cocaine, for which purpose the defendant P.Ć. established a criminal organisation in Croatia, as well as the fact that a venture of trafficking of large quantities of the drug, such as the one smuggled by the defendants, is not undertaken by individuals who are not aware of the trafficking, suggest that the circumstances of the offence are particularly serious. The defendants are charged with acting on the basis of a prepared plan and agreement for permanently trafficking large quantities of cocaine, and in the period between January 2010 and 19 May 2011 they smuggled large quantities of [that drug] for the purpose of further distribution. The undisputed purity of the last shipment of the seized cocaine, amounting to 338.29 kilograms, means that it could have been used for making at least 3,000 doses for individual use ... which on the black market could have endangered the health of a high number of persons. These circumstances of the offence surpass the usual circumstances in which [such offences] are committed, and therefore they suggest its particular gravity.”

45. The applicant appealed to the Supreme Court (Vrhovni sud Republike Hrvatske) against the above decision, arguing that the Split County Court had failed to adduce any relevant reason warranting his continued detention. He pointed out in particular that the individual circumstances of his case had not been examined, such as the fact that he had not had any previous conflict with the law. This called into question the findings of the Split County Court that he could reoffend. He also asked that his detention be replaced by less severe preventive measures.

46. On 15 June 2012 the Supreme Court dismissed the applicant’s appeal as ill-founded, endorsing the decision of the Split County Court. It did not examine the possibility of replacing the applicant’s detention by the application of alternative preventive measures. With regard to the applicant’s specific arguments, the Supreme Court held:

“The importance of the reasons making the detention under Article 123 § 1 (3) of the Code of Criminal Procedure necessary and the only appropriate measure for averting the risk of reoffending has not been called into question by the appeal arguments of the defendants S.K. and Vlatko Šoš that they did not have a criminal record. The fact that ... prior to his arrest [Vlatko Šoš] was well-known as a hardworking and decent person who was earning money by working as a car mechanic could be taken into account in the sentencing, in the event of his conviction.”

47. On 13 August 2012 a three-judge panel of the Split County Court again extended the applicant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating its previous arguments and without setting any time-limits for the applicant’s detention. It did not examine the possibility of replacing his detention by the application of less severe preventive measures.

48. The applicant challenged the decision of the Split County Court before the Supreme Court, arguing that the courts had extended his detention throughout the period of his remand by constantly repeating the same phrases and almost identical wording, and without a proper assessment of the individual circumstances of his case. He also asked that his detention be replaced by less severe preventive measures.

49. On 12 September 2012 the Supreme Court dismissed the applicant’s appeal as ill-founded on the ground that there was nothing calling into question the findings of the Split County Court concerning the necessity of his continued detention. It also stressed that, in view of the gravity of the charges and the persisting risk of reoffending, the applicant’s detention could not be replaced by less severe preventive measures.

50. On 22 October 2012 the applicant lodged a constitutional complaint against the above decision. He contended that the lower courts had constantly extended his pre-trial detention throughout the proceedings, always using the same stereotyped formulae and phrases. He considered, therefore, that they had failed to adduce any relevant and sufficient reasons for his continued detention. He pointed out the wording of the decisions extending his detention and the fact that his detention had been extended during the trial without setting any time-limits.

51. On 6 November 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. In particular it held:

“The Constitutional Court finds in the case at hand that the impugned decisions were adopted on the basis of the competent courts’ careful assessment of the reasons justifying the extension of the appellant’s detention, in view of the particular circumstances of the case (extent of the criminal activity, quantity and value of the drugs, high degree of organisation and connection with other defendants with clearly distributed tasks in performing the criminal activity, continuity of the criminal activity, time period in which it has occurred, [criminal] resolve, and the fact that the offence at issue is punishable by long-term imprisonment) and that the [competent courts] provided sufficient reasons justifying [the detention].”

52. On 9 November 2012 a three-judge panel of the Split County Court extended the applicant’s detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), without setting any time-limits for the detention. The relevant part of the decision reads:

“With regard to the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš the detention was extended under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of [the defendants’] organisation, and the fact that they have allegedly smuggled large quantities of cocaine for the purpose of its further distribution, 338 kilograms of which has been seized in Spain, this panel finds that it suggests special circumstances justifying the fear that they may reoffend.

The detention of the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš was also extended under Article 123 § 1 (4) of the Code of Criminal Procedure. This panel finds that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, the very fact that [the case] concerns a large number of persons organised in a criminal enterprise for the purpose of trafficking large quantities of cocaine, for which purpose the defendant P.Ć. established a criminal organisation in Croatia, as well as the fact that a venture of trafficking of large quantities of the drug, such as the one smuggled by the defendants, is not undertaken by individuals who are not aware of the trafficking, suggest that the circumstances of the offence were particularly serious. The defendants are charged with acting on the basis of a prepared plan and agreement for permanently trafficking large quantities of cocaine, and in the period between January 2010 and 19 May 2011 they smuggled large quantities of [that drug] for the purpose of further distribution. The undisputed purity of the last shipment of the seized cocaine amounting to 338.29 kilograms means that it could have been used for making at least 3,000 doses for individual use ... which, on the black market, could have endangered the health of a high number of persons. These circumstances of the offence surpass the usual circumstances in which [such offences] are committed, and therefore they suggest that the charges are particularly serious.”

53. The applicant appealed against the above decision to the Supreme Court. On 28 November 2012 the Supreme Court dismissed his appeal as ill-founded, upholding the decision of the Split County Court.

54. On 25 January 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating the wording of its previous decision and without setting any time-limits for the detention.

55. The applicant appealed against the decision on his pre-trial detention to the Supreme Court, arguing that it lacked relevant and sufficient reasons.

56. On 20 February 2013 the Supreme Court found that the applicant’s detention was to be extended only under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). It explained that the 2013 amendments to the Criminal Code provided that the offence at issue was punishable by a prison sentence of between three and fifteen years and no longer by long-term imprisonment. It was therefore not possible to remand the applicant on the grounds of the gravity of the charges since the possibility of imposing a sentence of long-term imprisonment was one of the conditions for extending pre-trial detention under Article 123 § 1 (4) of the Code of Criminal Procedure (gravity of charges).

57. On 20 April 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), relying on its previous reasoning and without setting any time-limits for the detention.

58. The applicant appealed against that decision before the Supreme Court, reiterating that his continued detention had not been based on relevant and sufficient reasons. On 24 May 2013 the Supreme Court dismissed his appeal as ill-founded.

59. Meanwhile, on 17 May 2013, following the expiry of the maximum period of the applicant’s pre-trial detention, a three-judge panel of the Split County Court exceptionally extended this maximum time-limit for his detention for a further six months, relying on section 35 of the Act on the Office for the Suppression of Corruption and Organised Crime (see paragraph 71 below). It held that the time-limit for his detention before the adoption of the first-instance judgment would expire on 19 November 2013.

60. The applicant challenged the extension of the time-limit for his pre-trial detention before the Supreme Court, arguing that such a measure was unreasonable. He pointed out that the first-instance judgment could not be adopted before 19 November 2013 given that so far only the preparatory hearing had been scheduled. The applicant also contended that the impugned decision lacked relevant and sufficient reasons warranting his continued detention on the ground of the risk of reoffending.

61. On 7 June 2013 the Supreme Court dismissed the applicant’s appeal, upholding the decision to extend the time-limit for his pre-trial detention.

62. On 2 August 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating its previous reasoning and without setting a time-limit for the detention. It also held that the applicant’s detention could not be replaced by less severe preventive measures.

63. The applicant challenged that decision before the Supreme Court, arguing that in view of all the circumstances of the case, his continued detention was unreasonable.

64. On 9 September 2013 the Supreme Court dismissed the applicant’s appeal, upholding the decision of the Split County Court.

65. On 19 November 2013 the applicant was released from detention as the maximum statutory time-limit for his detention had expired.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

1. Constitution

66. 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.”

2. Constitutional Court Act

67. The relevant part of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows:

Section 62

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person invested with public authority, on his or her rights and obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local and regional government guaranteed by the Constitution (‘constitutional right’) ...

2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.”

3. Criminal Code

68. The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008 and 57/2011) provides:

Abuse of narcotic drugs

Article 173

“ ...

(2) Whoever, without authorisation, manufactures, processes, sells or offers for sale or buys for the purpose of reselling, keeps, distributes or brokers the sale and purchase of, or, in some other way and without authorisation, puts into circulation, substances or preparations which are by regulation proclaimed to be narcotic drugs, shall be punished by imprisonment for not less than three years.

(3) If the criminal offence referred to in paragraph 2 of this Article is committed while the perpetrator is part of a group or a criminal organisation, or if he has set up a network for selling drugs, he shall be punished by imprisonment for not less than five years or by long-term imprisonment.”

69. The relevant provisions of the new Criminal Code (Kazneni zakon, Official Gazette nos. 125/2011 and 144/2012), which came into force on 1 January 2013, provide:

Unauthorised manufacturing of or trafficking in drugs

Article 190

“...

(2) Whoever manufactures, processes, transfers, exports or imports, obtains or possesses [narcotic drugs] for the purpose of unauthorised sale or in some other way puts into circulation, or without authorisation offers for sale, sells or brokers the sale or in some other way puts into circulation [narcotic drugs] shall be punished by imprisonment for one to twelve years.”

Commission of an offence by participating in a criminal organisation

Article 329

“(1) Whoever, aware of the aim of a criminal organisation or its criminal activity, commits an offence while participating in such an organisation ... shall be punished:

...

4. for an offence which is punishable by up to ten or twelve years’ imprisonment, by a sentence of imprisonment for three to fifteen years”.

4. Code of Criminal Procedure

70. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012 and 56/2013) provide:

Preventive Measures

Article 98

“(1) Where the conditions for ordering pre-trial detention under Article 123 of this Code have been fulfilled, and where the same purpose may be achieved by other preventive measures, the court or the State Attorney shall order that one or more preventive measures be applied ...

(2) Preventive measures are:

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

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

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

4) prohibition on contact with a certain person;

5) prohibition on establishing or maintaining contact with a certain person;

6) prohibition on undertaking a certain business activity;

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

8) temporary seizure of a driving licence ...”

Bail

Article 102

“(1) Pre-trial detention under Article 123 paragraphs 1 to 4 of this Code may be terminated provided that the defendant personally, or another person on his behalf, posts bail and the defendant personally promises that he will not hide or leave his place of residence without permission, that he will not interfere with the criminal proceedings and that he will not commit a new criminal offence.

(2) In the decision on pre-trial detention, the court may set the amount of bail which could replace the detention. Bail shall always be set in a pecuniary amount determined with regard to the gravity of the criminal offence and the personal circumstances and financial situation of the defendant.

(3) If the court considers that bail cannot substitute pre-trial detention, it shall set out the reasons why it considers that [to be so].

(4) Complementary to the bail, the court may order the application of one or more preventive measures.”

General provisions on pre-trial detention

Article 122

“(1) As soon as the grounds for pre-trial detention cease to exist, the detention shall be lifted and the detainee released.

(2) When deciding on pre-trial 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 the detention. ...

...

(4) In the event that pre-trial detention has been ordered, the proceedings shall be conducted particularly promptly ...”

Grounds for ordering pre-trial detention

Article 123

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

...

2. there is a risk that he or she might destroy, hide, alter or forge evidence or clues relevant to the criminal proceedings or influence witnesses, or where there is a risk of collusion;

3. there is a risk that the person concerned might reoffend ...;

4. if it is necessary to order detention so as to secure the proper conduct of the proceedings for an offence for which a sentence of long-term imprisonment may be imposed and which concerns particularly grave circumstances.”

Decision on pre-trial detention

Article 124

“(1) The pre-trial detention shall be ordered and extended by a written court decision.

(2) ... [A] decision on the pre-trial detention shall provide:

1) if an investigation is conducted, specification of the investigation order;

2) the legal grounds for detention;

3) the time-limit for the detention;

4) the relevant provision concerning the way in which the previous deprivation of liberty was calculated and an indication of the time of the arrest;

5) the amount of bail which may substitute the pre-trial detention.

(3) The decision on the pre-trial detention shall be reasoned so as to provide a specific and full indication of the facts and relevant evidence concerning the reasonable suspicion that the defendant has committed the offence, the grounds [for detention], as well as the reasons why the pre-trial detention should not be replaced with a less severe measure, and any decision concerning the bail.

... ”

Duration of pre-trial detention

Article 131

“...

(3) In the decision on pre-trial detention after the submission of the indictment the time-limit for [its] duration shall not be determined, but the court shall, every two months, calculating from the date of the previous final decision on detention until the adoption of the first-instance judgment, re-examine whether the legal grounds for detention still persist, and [based on that assessment] it shall extend or lift the detention. ...”

Article 133

“(1) Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of:

...

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

...”

5. Act on the Office for the Suppression of Corruption and Organised Crime

71. The relevant provision of the Act on the Office for the Suppression of Corruption and Organised Crime (Zakon o Uredu za suzbijanje korupcije i organiziranog kriminaliteta, Official Gazette nos. 76/2009, 116/2010, 145/2010, 57/2011 and 136/2012) provides as follows:

Section 35

“(1) The total duration of the pre-trial detention before the submission of the indictment, if the investigation is lengthy (Article 230 paragraph § 1 of the Code of Criminal Procedure) may be twelve months. ...

(2) If the pre-trial detention during the investigation has been extended under subsection (1) above, the total duration of the pre-trial detention under Article 130 § 2 of the Code of Criminal Procedure shall be extended for six months.”

B. Relevant practice

72. On 13 January 2014, in its decision no. U-III-5449/2013, the Constitutional Court found that it should change its approach to cases where a constitutional complaint has been brought against a decision on detention which has in the meantime been replaced by a new decision on detention, before the Constitutional Court has decided on it. It considered that, in view of the requirements under Article 5 § 4 of the Convention, such complaints should be examined on the merits. The relevant part of the decision reads:

“6. The [Court’s] case-law with respect to Croatia shows that the Constitutional Court is obliged to re-examine its case-law in line with the requirements under Article 5 § 4 [of the Convention].

...

The Constitutional Court is obliged, however, to align its practice with the requirements of Article 5 § 4 of the Convention. That means in the case at issue that the Constitutional Court is obliged to examine the appellant’s complaints against the impugned decisions extending his pre-trial detention on the merits, irrespective of the fact that those decisions were repealed ... before the termination of the proceedings before the Constitutional Court ...”

THE LAW

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

73. The applicant complained that his continued pre-trial detention had been arbitrary and had not been based on relevant and sufficient reasons. He relied on Article 5 §§ 1 (c) and 3 of the Convention. The Court, being the master of the characterisation to be given in law to the facts of the case (see, for example, Margaretić v. Croatia, no. 16115/13, § 75, 5 June 2014), considers that this complaint falls 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

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

B. Merits

1. The parties’ arguments

(a) The applicant

75. The applicant contended that his pre-trial detention had been excessively lengthy and had not been based on relevant and sufficient reasons. He stressed that when extending his detention throughout the period at issue the domestic courts had failed to cite any compelling reasons justifying his deprivation of liberty. In fact, from the very beginning of his deprivation of liberty they had merely reiterated the same stereotyped wording without making the necessary assessment of the particular circumstances of the case. Moreover, following the submission of the indictment in the competent court, the domestic courts had failed to set time-limits for the continued detention in their decisions extending his detention.

76. The applicant further argued that the domestic authorities had failed to display “special diligence” in the conduct of the proceedings, given that he had been detained on 19 May 2011 and the indictment against him had not been confirmed until 25 January 2013. In those circumstances, his pre-trial detention had essentially turned into a prison sentence and had lost its purpose of a preventive measure. The applicant also pointed out that the domestic courts had never given genuine consideration to the possibility of replacing his pre-trial detention with less severe preventive measures but had simply dismissed any proposal he had made in that respect.

(b) The Government

77. The Government argued that the applicant’s pre-trial detention had been in full compliance with the requirements of the relevant domestic law and had been based on relevant and sufficient reasons. In particular, the time-limits for his pre-trial detention had not been set out in the decisions extending the detention following the submission of the indictment because that had not been required under the relevant domestic law. However, on each occasion the domestic authorities had paid due attention to the necessity of his continued detention and had examined the particular circumstances of the case warranting his continued deprivation of liberty.

78. In the Government’s view, there was no doubt that throughout the period of the applicant’s pre-trial detention a reasonable suspicion had existed that he had committed the offence at issue. Moreover, during the investigation the domestic authorities had relied on a justified fear that he might suborn witnesses, but once the witnesses had been questioned they had not extended his detention on that ground. The domestic authorities had also found that the particular circumstances of the case and the manner in which the offence at issue had been committed suggested that the applicant might reoffend. In addition, they had initially relied on the gravity of the charges as an element suggesting that the detention was needed to ensure the proper conduct of the proceedings, but when the relevant domestic law changed, they no longer extended his detention on that ground.

79. The Government further argued that the fact that the domestic authorities, when extending the applicant’s pre-trial detention, had reiterated the same or similar reasoning did not suggest any breach of his rights since his detention had been extended by the domestic courts sitting in various formations and with due respect to the applicant’s rights and the particular circumstances warranting his continued deprivation of liberty. The domestic courts had examined the possibility of applying less restrictive preventive measures but had found them insufficient in view of the circumstances of the case. The Government also pointed out that the criminal proceedings at issue concerned a particularly complex case and that the domestic authorities had duly complied with the requirement of special diligence in the conduct of the proceedings.

2. The Court’s assessment

(a) General principles

80. 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).

81. The Court has repeatedly held that the question whether a period of detention is reasonable, under Article 5 § 3, cannot be assessed in abstracto. Whether it is reasonable for an accused 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).

82. 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 to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require him to be released provisionally once his continuing detention ceases to be reasonable (see Vlasov v. Russia, no. 78146/01, § 104, 12 June 2008, with further references).

83. 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 v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV).

84. 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).

85. 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; Contrada v. Italy, 24 August 1998, § 54, Reports of Judgments and Decisions 1998-V; I.A. v. France, 23 September 1998, § 102, Reports 1998-VII; Toth v. Austria, 12 December 1991, § 67, Series A no. 224; B. v. Austria, 28 March 1990, § 42, Series A no. 175; and Krikunov v. Russia, no. 13991/05, § 36, 4 December 2014).

(b) Application of these principles to the present case

86. As to the period be taken into account in the present case, the Court reiterates that 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).

87. It follows that the period of the applicant’s detention to be taken into consideration began on 19 May 2011, the date of his arrest (see paragraph 17 above), and ended on 19 November 2013, when he was released (see paragraph 65 above), which in total amounts to two years and six months.

88. The Court observes at the outset that the national authorities must put forward convincing reasons for having kept the applicant in detention for such a long time (see Artemov v. Russia, no. 14945/03, § 74, 3 April 2014).

89. The Court notes that the applicant’s pre-trial detention was initially based on three grounds: risk of collusion by suborning witnesses, risk of reoffending, and the gravity of the charges. The first cited ground ceased to exist once the investigating judge had heard evidence from all the relevant witnesses. Thus, from 18 August 2011 the risk of collusion was no longer relied upon as a ground for the applicant’s pre-trial detention (see paragraph 25 above). Similarly, the ground of gravity of the charges could no longer be applied after January 2013 following the objective circumstances related to the changes in the relevant domestic law (see paragraphs 56 and 68-70 above). Thereafter the applicant’s detention was extended solely on the ground of a risk of reoffending.

90. It remains to be ascertained whether the domestic authorities established and convincingly demonstrated the existence of specific facts in support of their conclusions with regard to the particular grounds relied upon. In making that assessment the Court will bear in mind, even taking into account the particular difficulty in dealing with a case concerning an organised criminal group, that the domestic authorities are required to make an adequate individual assessment of the grounds for detention in respect of a particular defendant (see, amongst many others, Dolgova v. Russia, no. 11886/05, § 49, 2 March 2006; and Yevgeniy Gusev v. Russia, no. 28020/05, § 88, 5 December 2013).

91. With regard to the domestic authorities’ decisions on the applicant’s detention relying on the risk of collusion by suborning witnesses, the Court notes that at the initial stages of the proceedings the investigating judge found that it was necessary to question a number of witnesses who had relevant knowledge of the offences at issue and knew the applicant (see paragraph 22 above). In the Court’s view, having in mind the particular complexity of the case at issue, this reason was “relevant” and “sufficient” to justify the applicant’s detention.

92. As regards the domestic authorities’ reliance on the gravity of charges when extending the applicant’s pre-trial detention, the Court reiterates that while that may be a relevant element in the overall assessment, the need to continue deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence (see, for instance, Kolunov v. Russia, no. 26436/05, § 51, 9 October 2012, and cases cited therein).

93. However, the Court accepts that, by reason of their particular gravity and the public reaction to them, certain offences may give rise to public disquiet capable of justifying pre-trial detention, at least for a certain time. In exceptional circumstances - and subject, obviously, to there being sufficient evidence - this factor may therefore be taken into account for the purposes of the Convention. However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused’s release would actually prejudice public order. In addition, detention will continue to be legitimate only if public order actually remains threatened; its continuation cannot be used to anticipate a custodial sentence (see, for example, Kemmache v. France, 27 November 1991, § 52, Series A no. 218, and Tomasi v. France, 27 August 1992, § 91, Series A no. 241-A).

94. In this connection the Court observes that the national courts did not explain why the applicant’s continued detention was necessary in order to prevent public disquiet and did not examine whether the applicant presented a danger for public safety, given the specific circumstances of his case and the charges held against him. Therefore, the domestic authorities’ arguments, although relevant, cannot be seen as sufficient for ordering or extending the applicant’s detention.

95. With regard to the extension of the applicant’s detention on the grounds of the risk of reoffending, the Court notes that the domestic courts did not point to any aspects of the applicant’s character or behaviour that would justify their conclusion that he presented such risks. Moreover, they paid no heed to important and relevant facts supporting the applicant’s specific requests for release and reducing the above risks, such as his clean criminal record and his employment (compare Taranenko v. Russia, no. 19554/05, § 54, 15 May 2014).

96. Although the applicant consistently insisted on the need to devote proper attention to his particular situation, pointing out the factors in favour of his release, the domestic courts continued applying detention orders without a proper assessment of his case in the context of the detention orders against nine other defendants. Moreover, the domestic courts failed to thoroughly examine the possibility of applying another, less severe, measure of restraint and they either rejected at the outset or ignored the applicant’s request for application of the preventive measures (see, for instance, paragraphs 20-22, 28-29 and 44-46 above; and compare Taranenko, cited above, §§ 53-54).

97. The Court therefore finds that by failing to sufficiently refer to the relevant matters pertinent to the applicant’s specific situation the domestic authorities extended his detention on grounds which cannot be regarded as “relevant” and “sufficient”.

98. Lastly, with regard to the applicant’s arguments that following the submission of the indictment in the competent court, the domestic courts had failed to set time-limits for the continued detention in their decisions extending his detention, the Court notes that the domestic courts’ orders referred to specific statutory grounds and reasons for the applicant’s continued detention, which were then re-examined every two months, as required under the relevant domestic law (see paragraph 70 above, Article 131 § 3 of the Code of Criminal Procedure). Thus, in the Court’s view, contrary to the case-law concerning some other countries (see, for instance, Kharchenko v. Ukraine, no. 40107/02, § 98, 10 February 2011, and Chumakov v. Russia, no. 41794/04, § 130, 24 April 2012), no issue of itself arises in this context.

99. In view of its findings above (see paragraphs 94 and 97 above), the Court considers that the domestic authorities failed to convincingly justify the applicant’s continued deprivation of liberty, as required under Article 5 § 3. In those circumstances, it is not necessary to examine whether the proceedings were conducted with “special diligence” (see, for instance, Orban v. Croatia, no. 56111/12, § 62, 19 December 2013).

100. There has accordingly been a violation of Article 5 § 3 of the Convention.

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

101. The applicant complained that he had not been able to obtain effective judicial review of his pre-trial detention, contrary to Article 5 § 4 of the Convention. In particular, he contended that the Constitutional Court had unjustifiably declined to examine his constitutional complaint of 15 November 2011 on the merits, declaring it inadmissible on 22 December 2011 merely because a new decision on his detention had been adopted in the meantime.

102. The Government contested this argument.

103. The Court notes that the final domestic courts’ decision complained of, namely the decision of the Constitutional Court of 22 December 2011, was served on the applicant’s representative on 10 January 2012 (see paragraph 35 above) and that he introduced his application before the Court on 3 April 2013, namely more than six months later.

104. In this connection the Court reiterates that, irrespective of the absence of an objection raised by the Government, in each case brought before it, the Court must ensure that the application has been lodged in compliance with the six-month time-limit (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012).

105. Consequently, given that the applicant brought his complaints before the Court more than six months following the service of the final domestic court decision on him, the Court finds that he failed to comply with the relevant six-month time-limit (compare Bernobić v. Croatia, no. 57180/09, § 78-81, 21 June 2011; and Balta v. Turkey (dec.), no. 51359/09, § 86, 9 December 2014).

106. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

107. Article 41 of the Convention provides:

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

A. Damage

108. The applicant claimed 22,338.16 euros (EUR) in respect of pecuniary damage for loss of earnings during the period of his detention, and EUR 4,000 in respect of non-pecuniary damage.

109. The Government considered the applicant’s claim unfounded and unsubstantiated.

110. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 2,600 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

111. The applicant also claimed EUR 20,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

112. The Government considered this claim unfounded and unjustified.

113. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 covering costs under all heads, plus any tax that may be chargeable.

C. Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the applicant’s complaints about the length of his pre-trial detention admissible, and the remainder of the application inadmissible;

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

3. Holds

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

(i) EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

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

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 1 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Işil Karakaş
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> SOS v. CROATIA - 26211/13 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2015] ECHR 1048 (01 December 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/1048.html Cite as: [2015] ECHR 1048