CASE OF HORVATIĆ v. CROATIA
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1941 and lives in Garešnica, Croatia. 6. On 8 February 1996, at around 6.55 p.m., a bank robbery was committed in Garešnica. The bank robber was disguised, wearing an improvised mask made of a winter cap and a winter scarf, a skirt over his trousers, an overcoat, and rubber gloves on his hands. Using a handgun the bank robber forced the bank employees to put money in a crate, after which he fled the scene. 7. Police Station no. 4 of the Bjelovarsko-bilogorska Police Department in Garešnica (Policijska uprava Bjelovarsko-bilogorska, IV Policijska postaja Garešnica – “the police”) was immediately informed of the incident. Police officers were sent to secure the scene and at 8.10 p.m. an in situ inspection was carried out. No evidence was found inside the bank, but there were a number of footprints in the snow outside the bank. 8. On the same day a number of persons, including the applicant, were brought in for questioning by the police. The applicant was released from the police station after denying any involvement in the crime. 9. In the meantime, in the basement of a residential building in Garešnica the police found clothes which they suspected had been worn and then discarded by the bank robber. 10. On 9 February 1996, at 12.50 p.m., the police carried out an on-site inspection of the basement, where they found and seized a stack of money, an improvised mask made from a blue winter cap, a green winter scarf, a crate with 500 Croatian kunas inside it, a pair of green rubber gloves, a blue overcoat and a purple skirt. A police dog was used in the inspection of the scene. 11. On the same day the applicant was again taken to the police station for questioning. In the course of the applicant’s stay at the police station the police dog was shown the applicant and, according to the police report, the dog’s behaviour associated the applicant with the objects found in the basement. 12. At 4.00 p.m. the applicant was arrested on suspicion of having committed the bank robbery. 13. The applicant was asked to take off his trousers and t-shirt. He complied with the request and signed a seizure record. The seizure record only indicates that the trousers and t-shirt were taken from the applicant. The police also took samples from the applicant’s hair, body hair and nails. There is no specific record in this regard. 14. According to the applicant, he was then removed from the room while the police officers packed up the clothes and the samples taken from him. According to the Government, the clothes and the samples were packed by a forensic technician in the presence of a police officer and the applicant, and the police officer simultaneously drafted the seizure record in respect of the applicant’s clothes, which the applicant then signed. 15. In course of the further investigation the police interviewed a number of persons and searched the applicant’s flat. No objects connected with the bank robbery were found. 16. On 10 February 1996 employees of the bank identified items found and seized in the basement of the residential building (see paragraphs 9 and 10) as the clothes worn by the bank robber. 17. On the same day the police sent the items from the basement, together with the applicant’s clothes and samples of his hair and nails, to the Ministry of the Interior’s Centre for Forensic Analysis in Zagreb (Ministarstvo unutarnjih poslova, Centar za kriminalistička vještačenja – “the Forensic Centre”) and commissioned a forensic report. In their request the police indicated that the samples had been taken and packed using gloves and that a new pair of gloves had been used each time a different item had been packed. 18. A preliminary forensic report was drawn up by the Forensic Centre on the same day. The Forensic Centre found strands of the applicant’s hair on the blue overcoat and winter cap worn by the bank robber. It also found fibres from the skirt worn by the bank robber on the applicant’s t-shirt and fibres from the winter scarf on his trousers. 19. On 11 February 1996 the applicant was brought before the investigating judge of the Bjelovar County Court (Županijski sud u Bjelovaru) for questioning, but he decided to remain silent because his defence lawyer was not present. On the same day the investigating judge ordered the applicant’s pre-trial detention. 20. The investigating judge questioned the applicant again on 12 February 1996 in the presence of his defence lawyer, but the applicant remained silent. 21. On 14 February 1996 the police forwarded to the investigating judge two forensic reports drawn up on 11 and 13 February 1996 by the Forensic Centre. 22. According to the Forensic Centre’s report of 11 February 1996 strands of the applicant’s hair had been found on the winter cap, the scarf and the overcoat worn by the bank robber; the report of 13 February 1996 indicated that fibres from the applicant’s t-shirt and trousers had been found on the crate, the skirt and the overcoat used by the bank robber. The latter report also indicated that fibres from the overcoat, the skirt and the scarf had been found on the applicant’s trousers and t-shirt. 23. On 14 February 1996 the Bjelovar County State Attorney’s Office (Županijsko državno odvjetništvo u Bjelovaru) asked the investigating judge at the Bjelovar County Court to open an investigation in respect of the applicant on suspicion that he had committed the bank robbery. 24. The investigating judge opened the investigation on the same day. During the investigation, the investigating judge questioned bank employees Z.S., M.Kol. and M.Kom., and a witness, M.S. The bank employees Z.S. and M.Kol. testified that they had seen the applicant before and that his physical appearance resembled that of the bank robber. 25. On 4 March 1996 the applicant gave his oral evidence. He denied that he had committed the bank robbery and complained that he had been ill-treated at the police station and pressured to confess to the charges. The police had also shown him a blue winter cap and a green scarf and asked him to confirm that they belonged to him. As to the manner in which the police had taken and packed the samples of his hair, nails and clothes, the applicant stated: “When I was taken to the police station for the second time for questioning, the police took my trousers and shirt and [samples of] my hair for forensic analysis. I pulled out a couple of locks of hair myself. I was not present while they packed my clothes and hair for analysis. They also cut my nails and pulled some hair from my arm and sent them for analysis. ... ... The items that were taken from me, namely the clothes and the samples of hair, were taken in a separate room, not the room were I was held waiting for questioning. ... Every sample was taken in another room and the sample which I gave in each room remained in that room. I don’t know where my clothes and the samples of my hair were then taken.” 26. On 5 March 1996 the Bjelovar County State Attorney’s Office indicted the applicant in the Bjelovar County Court on charges of armed robbery. 27. At a hearing on 3 April 1996 the applicant denied all the charges against him. He reiterated his allegations of ill-treatment by the police and complained that the manner in which the samples had been taken and packed for the forensic analysis had allowed for the possibility of tampering with the evidence. The applicant also explained that the samples of his hair had been first taken in one room by police officer T.L. and another police officer whose name he did not know, and then again in another room by police officers T.H., Z.N. and M. 28. At the same hearing the bank employees Z.S., M.Kol. and M.Kom. gave their oral evidence. 29. Z.S. testified that she knew the applicant and that the applicant’s voice was not similar to that of the bank robber. M.Kol. testified that she had seen the skin on a small part of the bank robber’s face and that it had been skin of a younger person; in any event younger and different from the applicant’s facial skin, although the part of the face which she had seen through the mask could have been the applicant’s. She also stated that she had seen some of the bank robber’s hair, which had been similar to the applicant’s. The witness M.Kom. testified that the applicant’s physical appearance was similar to the bank robber’s. 30. The applicant contended before the trial court that the records of the on-site inspection and the taking of the samples were not complete in that not all the actions had been documented. He therefore requested that the police be ordered to provide the names of all the forensic technicians involved and that they be summoned as witnesses. The applicant also requested that the forensic experts who had drafted the forensic reports be called to give evidence about the possibility of contamination between one seized item and another. Furthermore, he asked the trial court to order a reconstruction of the events so that an identification could be made in the setting in which the event had taken place, and that his alibi be verified. Finally, the applicant asked that the rubber gloves used by the bank robber be inspected at the hearing. 31. The trial court refused the applicant’s requests regarding the taking of evidence as irrelevant, and concluded the hearing. 32. On the same day the Bjelovar County Court found the applicant guilty of the bank robbery and sentenced him to five years’ imprisonment, imposing a confiscation order on him in the amounts of 8,410 Croatian kunas, 1,000 Austrian schillings, 3,490 German marks, 100 Australian dollars, 100,000 Italian liras, 12 Canadian dollars, and 20 Swedish kronas. The relevant part of the judgment reads: “The accused stated that ... on the critical occasion he had ... arrived at the Nazaret bar in Garešnica at 9.30 p.m., and there he had heard that a bank in Garešnica had been robbed that same night. Soon afterwards the police had arrived and asked him to come with them. He had been kept in a police station that whole night and had been released at 5 a.m. the next morning. At about 2 p.m. the next day he had again been asked to come to the police station, and the police officers had asked him to confess that he had robbed the bank. He had been ill-treated, they had beaten him, but he could not confess to something he had not done. His clothes had then been taken from him, as well as samples of his hair, but he had not been present when the samples had been taken from the clothes and when they had been packed and sent for analysis. He argued that the fibres [from his clothes] had been transferred to the other clothes by the items being rubbed against each other ... so the evidence thus obtained had been planted by the police. ... The request by the defence to obtain from the Garešnica Police Station the names of the officers who carried out the on-site inspection and took the samples, and for them to be heard as witnesses ... was refused because the case file contains written records on the on-site inspection and written reports on all steps carried out at the preliminary stage of these proceedings, so that there is no need to hear the officers who carried out those acts. The request by the defence for forensic experts D.K. and J.K. to be heard concerning the possibility that there was a transmission of fibres from one item to another was also refused because it is well known that such traces can be transmitted through various means such as by rubbing etc., so it was not necessary to hear expert witnesses on this. The court also took into account the fact that there had been no objection to the forensic reports. ... Witnesses Z.S., M.Kol. and M. Kom., the bank employees, gave identical descriptions of the conduct of the disguised person who had entered the bank at the relevant time, shortly before 7.00 p.m., and [they gave identical descriptions of] the clothes he had been wearing. They stated that the person at issue had been disguised, wearing an improvised mask made from a cap. Around his neck he had had a winter scarf, and he had been wearing a dark women’s overcoat. Underneath the overcoat he had been wearing a purple skirt and trousers. This person had pointed a gun and started shouting that this was a bank robbery; he had demanded money and threatened to kill [the bank employees]. He had then put a crate on the counter and asked for the money. M.Kol. had given him the money, putting it in the crate, after which the disguised person had left the bank. The said witnesses also testified that the person in question resembled the accused in his physical appearance, but that they had not recognised him as the accused, although the accused was known to them. Moreover, the witness M.Kol. testified that she had momentarily seen a part of the disguised person’s face but she thought that that person was younger than the accused. ... In view of the evidence given by the witnesses as to what the disguised bank robber had been wearing when he entered the bank, and the Forensic Centre’s report concerning the fibres and strands of hair found on the items and clothes seized from the accused, there is no doubt that the accused is the disguised person who entered the bank at the time of the events, and that he was disguised in the clothes which were found during the on-site investigation in a nearby residential building. ... This court cannot accept the applicant’s argument that this evidence was planted by the police, because the relevant laws prescribe in detail the procedure in such situations as regards the taking of samples, packing them and sending them for forensic analysis, and there are written records on all the steps taken, so that any doubt as to whether, intentionally or unintentionally, fabric fibres or hairs were transferred from one set of clothes to another is excluded, and this court considers that there is no reason to question the authenticity of this evidence. ...” 33. On 3 May 1996 the applicant lodged an appeal before the Supreme Court (Vrhovni sud Republike Hrvatske), reiterating his previous arguments regarding the evidence in issue. He contended that although when the samples of his hair and clothes were packed for the analysis he was detained at the police station, the police had not allowed him to be present during the packing of the samples and therefore the relevant evidence could have been planted and otherwise tampered with. 34. On 7 January 1998 the Supreme Court dismissed the applicant’s appeal, endorsing the findings of the first-instance court. 35. On 9 February 1998 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), reiterating his previous arguments about the manner in which the evidence had been gathered by the trial court. In his constitutional complaint the applicant gave his address in Garešnica but stated that he was detained in Bjelovar Prison (Zatvor u Bjelovaru). 36. On 11 February 1998 the applicant began a five-year prison sentence to which he had been sentenced in another set of criminal proceedings. He was transferred from Bjelovar Prison to Zagreb Prison (Zatvor u Zagrebu). He was detained in Zagreb Prison until 6 March 1998, when he was transferred to Lepoglava State Prison (Kaznionica u Lepoglavi). 37. On 9 March 1998 the applicant lodged a request for the extraordinary mitigation of his sentence (zahtjev za izvanredno ublažavanje kazne) and a request for extraordinary review of a final judgment (zahtjev za izvanredno preispitivanje pravomoćne presude). 38. In course of the Bjelovar County Court’s examination of the circumstances surrounding the applicant’s request for the extraordinary mitigation of his sentence, on 13 March 1998 Lepoglava State Prison informed the Bjelovar County Court that the applicant was detained in that prison. 39. On 16 March 1998 the Constitutional Court informed the Bjelovar County Court that the applicant had lodged a constitutional complaint and asked for the case file to be forwarded to it. 40. On 19 March 1998 the Bjelovar County Court declared the applicant’s request for extraordinary review of a final judgment inadmissible since it had been lodged against the judgment of the Supreme Court, which was not possible under the relevant domestic law. 41. On 2 April 1998 the Bjelovar County Court forwarded the case file to the Supreme Court in connection with the applicant’s request for the extraordinary mitigation of his sentence and recommended that the request be dismissed as ill-founded. 42. A copy of the entire case file was also sent to the Constitutional Court on 3 April 1998. 43. On 17 June 1998 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. 44. The decision of the Constitutional Court was sent to the applicant’s address in Garešnica on 6 July 1998 but it was returned to the Constitutional Court with a note that it had not been possible to serve it since the applicant was not at that address. 45. On 12 August 1998 the Supreme Court dismissed the applicant’s request for the extraordinary mitigation of his sentence as ill-founded. 46. On 4 and 17 September 1998 the Constitutional Court again attempted to serve its decision of 17 June 1998 on the applicant at his address in Garešnica. Each time the correspondence was returned, with a note that the applicant was not at that address. 47. The Constitutional Court placed the decision on its public notice board on 22 September 1998, where it remained until 30 September 1998. 48. On 19 January 1999 the Garešnica Municipal Court (Općinski sud u Garešnici) instituted enforcement proceedings in respect of an order for the confiscation of the proceeds of crime. However, on 24 June 1999 the enforcement proceedings were discontinued since it had been impossible to enforce the order on account of the applicant’s lack of any financial means. 49. On 26 September 2001 the applicant was released from Lepoglava State Prison on parole. 50. Since he had not received any decision from it, on 19 September 2002 the applicant urged the Constitutional Court to decide on his constitutional complaint 51. On 20 March 2009 the applicant’s lawyer requested the Constitutional Court to inform him as to the status of the applicant’s constitutional complaint. 52. On 27 March 2009 the Constitutional Court served its decision of 17 June 1998 on the applicant’s representative. 53. The relevant provision 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) reads as follows: “(1) Everyone suspected of or charged with a criminal offence shall have the right to: - a fair hearing before the competent court established by law; ... (2) Evidence unlawfully obtained cannot be used in court proceedings.” 54. The relevant provision of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows: “(1) The Constitutional Court shall serve a certified copy of its decision on the parties to the proceedings. (2) When a decision or other act of the Constitutional Court, for any reason whatsoever, cannot be served on the parties, it shall be put on the public notice board of the Constitutional Court. (3) It shall be considered that the decision has been served after it has been displayed on the Constitutional Court’s public notice board for eight days. ...” 55. The relevant provision of the Criminal Code of the Republic of Croatia (Krivični zakon Republike Hrvatske, Official Gazette nos. 32/1993, and 98/1993) provides: “(1) Whoever by the use of force against another person or by the threat of the use of direct force against life or limb, takes another’s movable property with the intent of keeping it for himself or of acquiring pecuniary gain for another, shall be punished by imprisonment for one to twelve years. ... ” 56. The relevant provisions of the Code of Criminal Procedure (Zakon o krivičnom postupku, Official Gazette nos. 53/1991, 91/1992, 34/1993, 38/1993, and 28/1996) provide: “(1) A simultaneous record shall be drafted in respect of every action taken in the course of criminal proceedings, while the action is taking place, or, if that is not feasible, then immediately after. ... ” “(1) The record shall state the name of the state authority taking the action, the place of the action, the day and time when the action begins and ends, the first and last names of all the persons present, and the capacity in which they are participating in the action, as well as an indication of the criminal case in respect of which the action is being taken. (2) The record has to contain all necessary information on the progress and the subject matter of the action. ... If in the course of the action certain objects or files have been seized, it shall be noted on the record, and the seized items shall be appended to the record or it shall be noted where these items are stored. (3) In the course of an action such as on-site inspection, the search of a flat or a person, or a line-up (Article 223), shall be recorded on the record all information which is important for such action or for the identification of the objects (description, the measurements of the objects or traces, markings on the objects, etc.), and any sketches, drawings, plans, photographs, video recordings, etc. made shall be noted on the record and appended to it.” “(1) The defendant, persons participating in the action, parties, defence counsel and the victim, if they are present, shall have the right to read the record or to have it read to them. ... “ “(1) The court’s judgment shall be based only on the facts and the evidence taken during the hearing. ... ” 57. The relevant provisions of the amended Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012) provide: Article 502 “... (2) The relevant provisions concerning the reopening of the criminal proceedings shall be applicable in the case of a request for revision of any final courts’ decision in connection with the final judgment of the European Court of Human Rights by which, in respect of the defendant, a violation of the rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms has been found. (3) The request for reopening of the proceedings in connection with the final judgment of the European Court of Human Rights can be lodged within a thirty-day time limit starting from the moment of the finality of the judgment of the European Court of Human Rights.” Article 574 “... (2) If prior to the entry into force of this Code a decision was adopted against which a legal remedy is allowed pursuant to the provisions of the legislation relevant to the proceedings [in which the decision was adopted], ..., the provisions of that legislation shall be applicable [to the proceedings concerning the remedy], unless otherwise provided under this Code. (3) Articles 497-508 of this Code shall be accordingly applicable to the requests for the reopening of the criminal proceedings made under the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006).”