CASE OF ERKAPIĆ v. CROATIA
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);Non-pecuniary damage - award
Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
4. The applicant was born in 1967 and lives in Zagreb. 5. On 19 October 2000 a Zagreb County Court (Županijski sud u Zagrebu) investigating judge questioned a witness, M.S., about alleged heroin trafficking in Zagreb. M.S. testified, inter alia, that in April 2000 he had transported one kilogram of heroin from B.S. to another person, known to him as “Mario”. 6. As part of a further police investigation of the organised supply of heroin in Zagreb, on 27 April 2001 the Drug Suppression Unit of the Zagreb Police Department (Policijska uprava Zagrebačka, Sektor kriminalističke policije, Odjel kriminaliteta droga; hereinafter “the police”) questioned a suspect, I.G.H., who stated that he had bought heroin from the applicant. During the questioning he was assisted by lawyer H.B. The questioning of I.G.H. commenced at 11.15 p.m., after a defence lawyer appeared at the police station at 11.10 p.m., and ended on 28 April 2001 at 1 a.m. 7. On 31 May 2001 the police questioned another suspect, V.Š., who stated that he was a heroin addict and that he had bought heroin from the applicant. During the questioning he was assisted by lawyer N.D. His questioning commenced at 4.26 p.m., after a defence lawyer appeared at the police station at 3.55 p.m., and finished at 5.43 p.m. on the same day. 8. On 6 June 2001 the applicant was arrested on suspicion of supplying heroin. The applicant was questioned by the police but chose to remain silent. 9. The next day the applicant was brought before an investigating judge at the Zagreb County Court. He denied all the charges against him but decided to remain silent and not to give any evidence. The applicant was again questioned by the investigating judge on 11 June 2001, but gave no evidence. 10. On 11 June 2001 an investigation was opened in respect of the applicant and eight other individuals, including I.G.H. and V.Š., in the Zagreb County Court in connection with a suspicion of conspiracy to supply heroin in Zagreb in the period between 1998 and 2001. 11. On 17 and 19 June 2001 the investigating judge sought to hear I.G.H., who chose to remain silent and not to give any evidence. When questioned by the investigating judge I.G.H. was not assisted by a lawyer. 12. On 21 June 2001 the investigation was extended to another defendant, I.S., who also chose to remain silent but denied all the charges against him. 13. On 25 June 2001 the police questioned another suspect, N.S. He stated that he had been a heroin addict for years and that he had been buying heroin from the applicant. During the questioning he was assisted by lawyer Ž.S. His questioning commenced at 5.50 p.m., after a defence lawyer appeared at the police station at 5.30 p.m., and finished at 6.55 p.m. on the same day. 14. On 16 July 2001 the investigating judge heard evidence from V.Š., who chose to remain silent. During the questioning V.Š. was not assisted by a lawyer, but he stated that his lawyer was I.K. 15. On 23 July 2001 the investigating judge heard evidence from witness M.S., who retracted his statement of 19 October 2000, stating that it had been given under coercion by the investigating judge and the police. He stated that it was not true that he had transported one kilogram of heroin to “Mario”. He also stated that he did not know the applicant. 16. On 26 July 2001 the investigating judge questioned the applicant in connection with the allegations made by N.S. The applicant denied the charges and refused to make any further statement. 17. On 31 July 2001 the investigating judge heard N.S., who complained that he had given his statement to the police under duress and that during his questioning he had been represented by a lawyer who was not of his choosing. Before the investigating judge N.S. was represented by lawyer D.G. On the same day the investigating judge extended the investigation to N.S. and two other individuals. 18. On 4 December 2001 the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) indicted the applicant and twelve other defendants in the Zagreb County Court. The applicant was charged with conspiracy to supply heroin in the period between mid-1998 and June 2001, whereas some of the co-accused were charged with supplying and possession of heroin. 19. The applicant lodged objections to the indictment on 14 and 21 December 2001, arguing that it had numerous substantive and procedural flaws. He requested, inter alia, that all official notes of the police interviews be excluded from the case file, as well as the record of I.G.H.’s oral statement given to the police. He contended that I.G.H. had been a heroin addict and that he had given his statement while at an advanced stage of withdrawal. 20. A three-judge panel of the Zagreb County Court dismissed the applicant’s objections against the indictment and remitted the case for trial on 11 April 2002. It excluded the official notes of the police interviews from the case file but not the record of I.G.H’s oral statement. 21. On 2 May 2002 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against that decision, and on 21 May 2002 the Supreme Court dismissed his appeal as ill-founded. 22. On 11 July 2002 the president of the trial panel of the Zagreb County Court commissioned a psychiatric report on the applicant’s mental capacity. The psychiatric report was drawn up on 27 July 2002. It confirmed that the applicant had full mental capacity and was intellectually able to participate in the proceedings. 23. After he had received some further documentation from the defence concerning the applicant’s psychiatric treatment, on 8 November 2002 the president of the trial panel commissioned another psychiatric report. The medical expert reiterated all his previous findings. 24. At a hearing held on 25 November 2002 the applicant pleaded not guilty. 25. Further hearings were held on 28 November 2002 and 21 February 2003, at which the trial court heard evidence from six witnesses and an expert witness in toxicology. A police officer, D.Z., gave oral evidence concerning a police trap they had set for one of the accused, D.L., and also concerning his questioning of another accused, Z.E. 26. On 8 April 2003 the president of the trial panel commissioned a psychiatric report on the mental capacity of N.S. at the time the alleged offence was committed. 27. At a hearing on 29 May 2003 a psychiatric expert testified that N.S., in the period concerning the charges held against him, had had diminished mental capacity but that he had been able to understand the nature of his acts. In that period he had been addicted and a user of illegal drugs. This meant that he did not have significant withdrawal crises. The parties made no objections to these findings. 28. At the same hearing the trial panel commissioned a psychiatric report in respect of the other accused, including V.Š. and I.G.H. 29. On 9 June 2003 the president of the trial panel informed the defence lawyers that he had received information from the Italian authorities that one of the witnesses, D.M., could be heard in Italy since he was serving his prison sentence there. The president of the trial panel asked the defence lawyers to inform him whether they wished to be present during the questioning of that witness in Italy. 30. On 18 June 2003 the psychiatric expert submitted his report commissioned at the hearing on 29 May 2003. He found that, in the period concerning the charges, V.Š. and I.G.H. had been heroin addicts. Their mental capacity had therefore been diminished but they were able to understand the nature of their acts at the time. In addition, I.G.H. had a personality disorder. 31. On 23 October 2003 the applicant’s defence lawyer informed the Zagreb County Court that he would not travel to Italy for the questioning of witness D.M. On 25 October 2003 witness D.M. was questioned by an investigating judge in court in Vasto, Italy. He did not provide any evidence concerning the applicant. The record of his statement was forwarded to the Zagreb County Court. 32. A further hearing was held on 8 March 2004, at which witness M.S. reiterated that he had made his first statement, on 19 October 2000, to the investigating judge under coercion and fear of ill-treatment by the police. He claimed that he had never transported any drugs as he had described in his statement. 33. At a hearing on 19 April 2004 the psychiatric expert confirmed his findings in respect of V.Š. and I.G.H. The defence lawyers raised objections concerning the methods used and the expert’s findings. 34. Another hearing was held on 23 March 2005, at which the defence lawyers asked for witness D.M., who had been heard by the Italian authorities, to be heard at the trial. The trial panel dismissed their request, on the grounds that there were significant impediments to securing his presence at the hearing, and that he had already been questioned by the Italian judicial authorities. 35. At a hearing on 24 March 2005 the applicant, V.Š. and I.G.H. all gave evidence. The applicant again denied all the charges against him and complained that he had been ill-treated by the police. 36. V.Š. testified that he did not know the other co-accused. As to the statement he had made to the police, he stated: “I have been a [heroin] addict for years and when I was in the police [station] nobody asked me anything but [a police officer] K.A., whose face I will never forget, drafted a record in another room. I asked for my lawyer, K. but the police told me that K. was a mafia lawyer and that he could not come ... I would like to add that when I was arrested the police told me that they needed me to give a statement. They knew I was soft and that I would sign everything they asked just to get out. That is how I signed this record, which was, as I said, drafted in another room ... I can answer the questions of the president of the trial panel by saying that I had a number of interviews with [the police officer] K.A. but he told me that this would never become part of a case file and he told me the same thing for this [statement]. However, since [K.A.] did not want to call my lawyer K., he called this other lawyer who never gave me any advice. He just told me that he had signed the record and that I could do whatever I wanted. I have to say that [this lawyer] was a woman. Nothing I said in that statement is true ... except the part in which I said that I was an addict. ... The only true information [in that statement] is my personal details and the fact that I was an addict but [the police officer] already knew that. The part where I said that I was not in withdrawal was absolutely not true ... I have known K.A. for six years, he has arrested me on a number of occasions and he once lodged a criminal complaint against me. Once he also threatened me that if I did not tell him something, he would lodge a criminal complaint, which he had previously prepared against me, but that never happened. He tolerated my [heroin] addiction but asked me to tell him from whom I was buying drugs, and sometimes would tell him. Sometimes I would tell him the truth but mostly not, I was trying to gain time. ... I trusted [K.A.] when he brought me that record and told me to sign it and that everything would be all right, that I could go. Therefore I signed it. As to the questions put by [the accused] I can answer that when I was in the police [station] the only thing that was important for me was to get out and to get myself a heroin fix, or methadone, which I was just going to pick up when the police arrested me.” 37. I.G.H. also testified that he had been ill-treated by police and that his statement was the result of ill-treatment. He stated: “ ... In [the police station] the ill-treatment started immediately. Two or three police officers, whom I did not know, told me to spread my legs and put my hands behind my back with my head pressed against the wall. Whenever somebody passed by me I was kicked, and when I fell they kicked me on the ground. They were jumping all over me. This lasted for some time and then they started to negotiate, asking me to give a statement. I asked for lawyers J.N. or S.B. but they told me as regards [lawyer J.N.] ‘why do you need that bitch’ and also that [lawyer S.B.] would not come. The ill-treatment ... started again and then [police officers] [K.]A. and [D.]Z. came. They told me that they were good policemen and asked me to give a statement. They also told me that [V.Š.] had already made a statement and that they had two to three other statements and that I should also make a statement, sign it and I could go. Then I signed that statement but I did not see what was in it. I remember that there was some police lawyer who told me ‘you just sign here kid’. The policeman also blackmailed me with an arrest warrant against me which had been issued previously, saying that they would withdraw it if I signed. ... I would like to confront policemen Z. and A. concerning everything I have just said. ... The policeman also did not provide me with any medical assistance from a doctor and when I asked for heptaton they told me that there was no chance I could get it before I signed. ... I used to buy drugs all over the place, but never from anybody who is present in this courtroom. ... Nothing [in the statement] is true except my personal details. ... I know [police officers] Z. and A. ... They did not physically ill-treat me but they were asking me to work for them. It is not true what was written, that I was not in withdrawal. I was, and the policeman waved the heptaton in front of my eyes. They were showing me the drugs. The defence lawyer did not see anything, but he was only there for about ten minutes, he signed [the statement] and left.” 38. Another hearing was held on 25 March 2005, at which N.S. gave evidence. As to his statement given to the police, he stated: “ ... [In the police station] I was held for four or five hours. I was asked about Erkapić and [the policeman] told me that if I confirmed what they said they would let me go. So I did that, I signed the record and left. I did it because I was having a severe physical crisis. ... I never asked for the defence lawyer Ž.S. He was just there at one moment and the policeman told me that he was my defence lawyer. I don’t remember but I don’t think I ever signed a power of attorney for him. The record was written previously, and not while the lawyer was there. In the presence of the lawyer I was just confirming what was written in the record and then I signed it. I signed it without reading it, because I could not wait to get out and take drugs ... During my police questioning I was never offered medical assistance, although I was in withdrawal. ... the policemen saw that I was in withdrawal ... because I told them so, and I asked for a doctor and heptaton, but they said no. 39. At the same hearing another co-accused, D.L., testified that while he had been in police custody he had heard police officers beating and interrogating N.S. for three hours. 40. After the accused had given evidence the applicant’s defence lawyer asked for the records of the oral statements given to the police by V.Š., I.G.H. and N.S. to be excluded from the case file as evidence obtained unlawfully. The defence lawyers of the other co-accused made the same request. 41. At a hearing on 14 April 2005 the trial court dismissed their requests, on the grounds that the records of the statements given to the police did not reveal any reason to exclude them from the case file. 42. At the same hearing I.G.H. added that he had been told by policeman K.A. that they wanted to put the applicant in prison for fifteen years or kill him. V.Š. and I.G.H. reiterated that their statements given to the police had been a result of withdrawal symptoms and crisis. 43. In their closing argument, the applicant’s defence lawyers argued that the only evidence against the applicant was the statements of his co-accused, which had been made to the police under duress and pressure. They asked for the applicant to be acquitted. 44. On 14 April 2005 the Zagreb County Court found the applicant guilty as charged and sentenced him to eight years’ imprisonment, and imposed a confiscation order on him in the amount of 690,134.4 Croatian kunas (HRK). 45. The Zagreb County Court based the applicant’s conviction solely on the statements V.Š., I.G.H. and N.S. had made to the police. In addition it considered that witness M.S. had also testified that he had transported one kilogram of heroin to the applicant. 46. As to the lawfulness and probative value of the records of oral statements given to the police by V.Š., I.G.H. and N.S., that court noted: “The request to exclude the record of the statement made by the fourth accused, I.G.H., to the police on 27 April 2001, made by the defence lawyer of the fourth accused I.G.H., on the ground that when giving the statement [I.G.H.] had been undergoing withdrawal from heroin, was dismissed. [The record of his statement] does not reveal any suspicion that [I.G.H.] was in withdrawal. Moreover, there was a defence lawyer present during his questioning who did not have any objection as to the manner of the questioning. This record does not reveal any circumstances which could raise the suspicion that the questioning of the fourth accused I.G.H. by the police on 27 April 2001 had been unlawful ... It was also requested that the records of the statements given to the police by the third accused V.Š., the fourth accused, I.G.H., and the eleventh accused, N.S., be excluded from the case file on the ground that these statements were made under duress and that as such they could not be used in the proceedings. The records referred to do not reveal any circumstances which could raise the suspicion that the statements had been made under coercion or pressure. The defence lawyers were present during the questioning and they did not have any objections. ... There is nothing credible to support the suspicion that the records referred to were obtained unlawfully, and therefore the request for their exclusion was dismissed ... Statements by the third accused, V.Š., the fourth accused, I.G.H., and the eleventh accused, N.S., made to the police in the presence of their defence lawyers, are accepted by this court as they are clear, specific and precise. These statements support each other, they have a number of details which could obviously be known only from personal experience (particularly the details of how they contacted the first accused, Mario Erkapić, and how the drugs were distributed and hidden) ... The statements these accused made during the trial, where they tried to show that their previous statements were a result of unlawful treatment by the police (threats, ploys, ill-treatment), are not accepted by this court, as their aim is to avoid criminal responsibility. Moreover, the records of the police interviews do not contain any element capable of placing their lawfulness in question. This court is not persuaded that various unlawful aspects [of the police questioning] alleged by I.G.H. did not provoke any reaction by the accused, who argued that [any reaction] would have been futile. These allegations were made almost four years after the events concerned had taken place and are therefore not credible and are an obvious fabrication aimed at avoiding criminal responsibility.” 47. On 3 October 2005 the applicant lodged appeals with the Supreme Court against the first-instance judgment. He argued, inter alia, that his conviction had been based solely on the statements made to police by his co-accused, although that had been evidence obtained unlawfully, as his co-accused had been ill-treated by police during the questioning. Moreover, they had been heroin addicts and at the time of the questioning were going through withdrawal. 48. He further complained that the first-instance court had failed to hear the defence lawyers who had allegedly been present during the police questioning, and the police officers who had questioned his co-accused. In a situation in which his co-accused had raised the issue of coercion and illtreatment during the police questioning, and in view of the fact that they had incriminated not only themselves but also him, the trial court had been obliged to check their testimony. As to the statement of witnesses M.S., the applicant pointed out that this witness had never said that the person he knew as “Mario” was the applicant. 49. On 22 February 2006 the Supreme Court dismissed the applicant’s appeal. It upheld the findings of the Zagreb County Court that there was no evidence in the case file to suggest anything unlawful in the records of interviews with the police by the applicant’s co-accused. The Supreme Court pointed out that they had been questioned in the presence of the defence lawyers and that there was nothing to indicate any withdrawal symptoms, coercion or oppression. The Supreme Court also added: “The psychiatric expert D.M. found that in April 2001 [I.G.H.], as an addict, had a high tolerance of heroin, but [the expert] did not say that he was experiencing a withdrawal crisis, which [the expert] reiterated at the hearing. The defence had no questions ... There was not a single piece of evidence, including the report drawn up by psychiatric expert D.M., to suggest that [I.G.H.] had been unable to understand the consequence of his actions, and particularly that he was unable to testify before the relevant authorities, regardless of his heroin addiction and diminished mental capacity at the time the offence was committed. Equally, there is not a single piece of evidence that the accused V.Š., and N.S. ..., on account of their heroin addiction, were unable to understand the nature of their actions or to testify before the authorities. ...“ 50. The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the above judgment on 4 April 2006, reiterating his previous arguments. 51. On 17 September 2008 the Constitutional Court dismissed the applicant’s constitutional complaint, endorsing the reasoning of the Supreme Court. The decision of the Constitutional Court was served on the applicant on 26 September 2008. 52. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/1990, 135/1997, 113/2000, 28/2001, 76/2010) read as follows: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” 53. The relevant part of Section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999, 29/2002 and 49/2002) reads: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a particular action on the part of a state body, a body of local and regional self-government, or a legal person with public authority, affecting his or her rights and obligations, or placing him under suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: “constitutional right”) ... 2. If another legal remedy exists against the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law, is allowed, remedies are exhausted only after the decision on these legal remedies has been given.” 54. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 129/2000, 51/2001) provide: “... (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 designated by regulation as narcotic drugs shall be punished by imprisonment for one to ten years, or by long-term imprisonment. (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 has organised a network to sell drugs, he shall be punished by imprisonment for not less than three years or by long-term imprisonment.” 55. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006) are as follows: “(1) The courts’ decisions in criminal proceedings cannot be based on unlawfully obtained evidence (unlawful evidence). (2) Unlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of defence, the right to dignity, reputation, honour and respect for private and family life guaranteed under the Constitution, law and the international law, and evidence obtained in breach of the rules of criminal procedure in so far as set out in this Act, as well as any other evidence obtained unlawfully. “ “(1) Where this Act provides that the judicial decision cannot be based on certain evidence, the investigating judge shall, at the motion of the parties or ex officio, exclude such evidence from the file before the conclusion of the investigation or before he gives consent for the indictment to be preferred without investigation (Article 191 paragraph 2). The decision of the investigating judge is subject to appellate review. ... (3) After the investigation and after the consent is given to prefer the indictment without the investigation (Article 191 paragraph 2), the investigating judge shall also proceed according to the provisions of paragraph 1 and 2 of this Article in respect of all information which according to Article 174 paragraph 4 and Article 173 paragraph 3 of this Act is given to the State Attorney or to police officers by citizens or by a suspect who has been interrogated contrary to the provisions of Article 177 paragraph 5 of this Act.” “ ... (5) In the course of the investigation the police authorities shall inform the suspect pursuant to Article 237 paragraph 2 of this Code. At the request of the suspect the police authorities shall allow him to appoint a lawyer, and for that purpose they shall stop interviewing the suspect until the lawyer appears or at the latest three hours from the moment the suspect requested to appoint a lawyer. ... If the circumstances show that the chosen lawyer will not be able to appear within this period of time, the police authorities shall allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police administrations by the Croatian Bar Association for the territory of a county ... If the suspect does not appoint a lawyer or if the requested lawyer fails to appear within the time period provided, the police authorities may resume their interview with the suspect ... The State Attorney has the right to be present during the interview. The record of any statement made by the defendant to the police authorities in the presence of a lawyer may be used as evidence in the criminal proceedings ... “ “(1) If an accused, while being questioned at a trial, contradicts a previous statement he has made, the president of the trial panel shall draw his attention to these contradictory statements and ask him why he is testifying differently. If necessary, his previous statement or part of that statement shall be read out. (2) If an accused refuses to testify at a hearing or refuses to answer a question, his previous statement or part of that statement shall be read out.” “The provisions of this chapter concerning the reopening of the criminal proceedings shall also be applicable ..., on the basis of a decision of the European Court for Human Rights which refers to some ground for the reopening of criminal proceedings or for an extraordinary review of the final judgement.” “A request for the extraordinary review of a final judgment may be lodged [in respect of]: ... 3. an infringement of the defence rights at the trial or of the procedural rules at the appellate stage, if it may have influenced the judgment.” 56. 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: “... (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.” “... (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).”