CASE OF GORAN KOVAČEVIĆ v. CROATIA
No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
5. The applicant was born in 1981 and lives in Dubrovnik. 6. On 21 October 2010, at 4:40 p.m. in Dubrovnik, police officers of the Criminal Police Department of the Dubrovnik-Neretva County Police (Odjel kriminalističke policije Policijske uprave dubrovačko-neretvanske) (hereinafter “the police”) arrested the applicant on suspicion of drug abuse. 7. According to the Government, the applicant resisted arrest and the police had to apply force in order to be able to bring him to the police station. During this process both the applicant and one of the police officers who had arrested him, S.D., sustained minor bodily injuries. 8. According to the applicant, he did not resist arrest and did not sustain injuries during his arrest; rather, it was during his stay in the police station that the police officers ill-treated him in order to pressure him to make incriminating statements against his co-accused in the trial. 9. The applicant was taken to the police station immediately after his arrest. At 9.40 p.m. he was examined by a doctor, who found that he had sustained minor bodily injuries – excoriations on his left elbow, on the left side of his chest and behind his left ear. Minor bodily injuries were also found on the police officer, S.D., who had arrested the applicant – specifically, excoriations on his right knee and elbow. During their medical examination the applicant and the police officer S.D. stated that they had sustained their injuries by falling to the ground. The doctor’s report of the examination was forwarded to the police. 10. According to a common report issued on the same day by the three police officers who arrested the applicant, S.D., L.D. and I.R., the applicant had resisted arrest and they had had to apply force in order to bring him to the police station. In particular, it was noted that the applicant had been found in a vehicle on the road and arrested. He had refused to step out of his vehicle, so S.D. had grabbed him by his left wrist and had applied the socalled “wristlock” technique in order to get him out of his vehicle. At that point police officer L.D. had grabbed the applicant by his right hand in order to apply the so-called “elbow-lock” technique, but due to the fact that the applicant had continued to resist all three of them had fallen to the ground. The applicant had tried to stand up and L.D. had kept him on the ground by pressing his knee against his back. The applicant had then been handcuffed and placed in the back seat of a police vehicle. In the police vehicle the applicant had continued to resist and the police officer S.D. had applied the “elbow-lock” technique and leaned him forwards in order to restrain him. By the time they had parked in front of the police station, one handcuff had come loose, so L.D. and I.R. had applied the “elbow-lock” technique again. When they had entered the police station the applicant had once again fallen to the ground. Then the applicant had been seated in a room and had ceased to resist, so the police officers had stopped using force and removed his other handcuff. Lastly, it was noted that during the application of coercive measures the applicant and S.D. had sustained injuries which, according to the doctor’s report, had been minor. 11. On the same day a shift manager of the Criminal Police Department noted in a report that the applicant had actively resisted arrest and that S.D., L.D. and I.R. had applied coercive measures against him – bodily force, restraining techniques and handcuffing. It was also noted that the applicant had been examined by a doctor, who had found that he had sustained excoriations on his left elbow, on the left side of his chest and behind his left ear. The applicant signed the report and stated that he did not have any objections to the procedure that had been followed. 12. On 25 October 2010 the chief of the Dubrovnik-Neretva County Police examined the information gathered in respect of the application of coercive measures against the applicant and found that they had been necessary, justified and lawful. 13. According to a police report made on the day of the applicant’s arrest, the applicant was informed of the reasons for his arrest and his right to remain silent, to hire a lawyer of his own choosing and to have a person of his choice be informed of his arrest. The report noted that the applicant had declined to hire a lawyer and that he had asked that his father be informed of his arrest. In this connection it was noted that the applicant’s father had been contacted at 6.20 p.m. The applicant signed the report without making any objections to its contents. On the same day the police lodged a criminal complaint against the applicant under a reasonable suspicion of drug abuse. 14. On 22 October 2010 at 9.45 a.m. the applicant was questioned by the police. In the report on his questioning it was noted that the applicant had been advised of his right to remain silent and to hire a lawyer of his own choosing who could be present during the questioning. In this connection it was noted that the applicant had declined to hire a lawyer. The applicant then gave a statement, explaining that in August 2010 he had on two occasions acted as an intermediary in the selling of amphetamines. He also stated that between 2008 and 2010 he had on several occasions bought cocaine from a certain D.Š. He expressed regret for his actions. The questioning ended at 11.10 a.m. The applicant signed the report on his questioning without making any objections regarding its contents. 15. On 22 October 2010 at 12 p.m. the applicant was brought for questioning before an investigating judge of the Dubrovnik County Court. A deputy Dubrovnik County State Attorney, K.K., was also present during the questioning. According to the report on his questioning, the applicant was twice advised by the investigating judge of his right to remain silent and to hire a lawyer of his own choosing, who could be present during the questioning. The applicant replied that he understood the advice and the grounds for his being under suspicion and maintained that he did not require a lawyer for that day’s questioning and that he would give a statement to the investigating judge and answer questions. He then explained that in August 2010 he had on two occasions acted as an intermediary in the selling of amphetamines and that between 2008 and 2010 he had on several occasions bought cocaine from D.Š. Lastly, the applicant stated that he had been arrested the day before at 5 p.m. and that apart from the use of force during his arrest he did not have any objections about the police conduct during his stay in the police station. The questioning ended at 12:50 p.m. The applicant signed the report on his questioning without making any objections as to its contents. He was then released. 16. On 29 October 2010 an investigation was opened in respect of the applicant and D.Š on the reasonable suspicion of their having engaged in drug abuse. On 2 December 2010 the investigation was extended to encompass a third person, V.V. 17. On 3 December 2010 the applicant hired a lawyer, D.P., to represent him. 18. On 4 January 2011 the Dubrovnik County State Attorney’s Office (Županijsko državno odvjetništvo u Dubrovniku) indicted the applicant, D.Š., and V.V for drug abuse. 19. On 3 May 2011 a hearing was held before the Dubrovnik County Court, which the applicant and his lawyer attended. The hearing was adjourned in order for V.V.’s ability to follow the proceedings to be determined. 20. The hearing of 7 June 2011, which the applicant and his lawyer attended, was adjourned owing to the illness of the presiding judge. 21. At a hearing held on 20 June 2011, which the applicant and his lawyer attended, the Dubrovnik Country Court (“the trial court”) established the identity of the defendants and the charges brought against them. The applicant stated that he understood the charges brought against him and the warnings regarding his rights given by the presiding judge and that he would present his defence and answer questions. He pleaded not guilty. He asked to give his defence at the end of the trial. Evidence was read out aloud, whereas certain evidence was excluded from the case file at the request of the defence. The trial court heard three witnesses. 22. At a hearing held on 21 June 2011, which the applicant and his lawyer attended, the trial court heard I.G., a witness. 23. At a hearing held on 1 July 2011, which the applicant and his lawyer attended, the trial court continued to hear I.G. and examined certain other evidence. The applicant’s lawyer then proposed that the trial court examine the medical records of the applicant’s father who allegedly suffered a stroke after learning of the applicant’s arrest, as well as a medical certificate dated 27 January 2011 confirming that on 21 October 2010 the applicant had been examined by a doctor and that the doctor’s report had been forwarded to the police. He also proposed that the trial court hear the applicant’s sister and examine the power of attorney by which she had hired a lawyer to represent the applicant during the time that the investigating judge was questioning him. The applicant’s lawyer, D.P., explained that this proposed evidence was relevant for the establishing of the conduct of the police against the applicant. D.H., the lawyer allegedly hired by the applicant’s sister, who represented D.Š., the applicant’s co-accused in the trial, stated that the power of attorney in question had been signed in his office on the night when the applicant had been held in the police station. The trial court examined the applicant’s father’s medical records and rejected the other proposed evidence, considering them irrelevant for the proceedings at that point. 24. At a hearing held on 4 July 2011 the trial court heard the applicant’s co-accused, D.Š. D.Š. stated, inter alia, that he had not sold drugs to the applicant and that he had learned from his lawyer, D.H., that the police had ill-treated the applicant in the police station and had beaten him. The trial court then heard the applicant. 25. The applicant reiterated the part of his statement given to the investigating judge on 22 October 2010 concerning the criminal accusation against him, namely that he had on two occasions acted as an intermediary in the selling of amphetamines. He retracted the part of his statement concerning the buying of cocaine from D.Š. He alleged that after he had been brought to the police station he had been physically and psychologically ill-treated and had been coerced to into giving such a statement to the investigating judge. He further alleged that the following morning his father and sister had come to the police station, and when he had seen his father crying, he had agreed to give his statement to the investigating judge. He explained that once he had been brought to the police station he had immediately confessed to being an intermediary in the selling of amphetamines. However, when the police had started questioning him about D.Š. and the cocaine, he had asked for a lawyer. Later, at one point police officer L.D. had told him that D.H. had arrived at the entrance of the police station but had not been allowed to come in. He alleged that he had been beaten by police officers L.D., S.D. and I.R. 26. When asked by the prosecutor, the applicant explained that during his arrest and transportation to the police station the police officers had used force against him and had beaten him. When further asked by the presiding judge and the lawyer, D.H., the applicant explained that even though on 22 October 2010 he had been advised by the investigating judge of his right to remain silent and to hire a lawyer, he had been afraid of the police officers who had brought him before the investigating judge, given that they had been the same police officers who had beaten him. The applicant’s lawyer then asked that the applicant’s sister be heard on account of a conversation that she had had with the police officer, L.D. He also asked that D.H. be heard and that the medical documentation relating to the injuries the applicant had sustained during his questioning by the police be examined. The trial court dismissed these requests, considering such evidence to be unnecessary. 27. In a closing statement the applicant’s lawyer asked the trial court to take into account, when determining the applicant’s sentence, the fact that he had confessed to his crime. The applicant reiterated his lawyer’s statement and added that he intended to finish school and start working and would never repeat his actions. 28. On 6 July 2011 the Dubrovnik County Court found the applicant guilty as charged and sentenced him to two years’ imprisonment. It also found D.Š. and V.V. guilty as charged and sentenced them to eight and two years’ imprisonment, respectively. In finding D.Š. guilty the trial court referred to, inter alia, the statement that the applicant had given to the investigating judge concerning his having purchased cocaine from D.Š. in the period between 2008 and 2010. It did not consider credible the applicant’s allegation that he had given his statement to the investigating judge under police duress. It found that during the trial the applicant himself had alleged that he had given his oral statement to the investigating judge uninterruptedly, without the police officers being present, and after being advised of his right to hire a lawyer and to remain silent. In this respect it noted that the applicant had told the investigating judge that he had been illtreated by the police only during his arrest, and not during his stay in the police station. It considered that the fact that the applicant had changed the nature of his allegation was an attempt to help his co-accused D.Š in the trial. 29. The trial court dismissed evidence proposals relating to the applicant’s alleged ill-treatment in the police station, specifically that his sister be heard in respect of this allegation, finding that his sister had not been present during his arrest and transportation to the police station, and later on had not been in the same room with the applicant and the police officers. As to the criminal accusation against the applicant, the trial court found that the applicant had confessed to being an intermediary in the sale of amphetamines and it took his confession into account as a mitigating circumstance. 30. The applicant appealed against the first-instance judgment to the Supreme Court (Vrhovni sud Republike Hrvatske). In his appeal he stated that he had not resisted his arrest and had not sustained injuries during his arrest. He explained that once he had been brought to the police station he had immediately and voluntarily confessed to his crime. Therefore, he could have had no reason to resist the police only a few minutes beforehand. He further stated that the police had physically and psychologically pressured him into incriminating D.Š. and had denied him access to a lawyer. He alleged that he had given a statement to the investigating judge under duress applied by the police officers who had brought him before the investigating judge. He complained about the trial court’s dismissal of his proposals regarding evidence relating to those circumstances. He lastly stated that, given that the trial court had believed the statement that he had given against D.Š. and had taken it into account when convicting D.Š., he should have been given a milder sanction. 31. On 29 February 2012 the Supreme Court upheld the applicant’s conviction but reduced his sentence to one year’s imprisonment. The Supreme Court found that in his appeal the applicant himself had stated that the police officers had had no reason to exert pressure on him given that he had immediately confessed his crime. As to the change of the applicant’s line of defence during the trial, the Supreme Court agreed with the trial court that this had probably been an attempt to help his co-accused, D.Š., in the trial, rather than constituting a credible reason for retracting his earlier statements. The Supreme Court lastly found that the applicant’s statement had helped to convict D.Š. and that therefore his sentence was to be reduced to one year’s imprisonment. 32. The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He complained that during his stay in the police station he had asked for a lawyer and that his sister and father had hired D.H. to represent him. However, he stated that the police had forced him to waive this right. He further complained that he had been ill-treated during his stay in the police station. He explained that he had not resisted arrest and had not been injured during his arrest, but during his stay in the police station when he had been forced to incriminate D.Š. 33. On 7 November 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded. The decision was served on the applicant’s representative on 18 November 2013.