CASE OF NENAD KOVAČEVIĆ v. CROATIA
No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
6. The applicant was born in 1976 and is currently serving a prison sentence in Croatia. 7. In 1997 an investigation was opened in respect of the applicant on suspicion of murder. He was remanded in custody during the investigation from 5 February to 21 May 1997. 8. Following his release from custody, the applicant became unavailable to the Croatian authorities, and on 18 December 1998 the Osijek County Court (Županijski sud u Osijeku), as the competent trial court, ordered his trial in absentia. 9. On 8 February 1999 the Osijek County Court found the applicant guilty as charged and sentenced him in absentia to nine years’ imprisonment. The judgment became final on 22 February 1999. 10. On 27 September 2005 a judge responsible for the execution of sentences at the Osijek County Court ordered that the applicant should start to serve his prison sentence. Given that at the time the applicant was still at large, the judge ordered that a warrant be issued for his arrest. 11. On the basis of the arrest warrant, the applicant was arrested in Bosnia and Herzegovina and on 21 July 2011 he was extradited to Croatia, where he immediately started to serve his prison sentence. 12. The day following his extradition, the applicant requested the Osijek County Court to reopen the proceedings conducted in his absence (see paragraph 30 below). He relied on the Code of Criminal Procedure, which provided for the automatic reopening of proceedings conducted in absentia at the request of the convicted person. 13. A three-judge panel of the Osijek County Court granted the applicant’s request for reopening of the proceedings on 26 August 2011. The decision became final on 6 September 2011. 14. On 4 October 2011 the Osijek County Court discontinued the applicant’s prison sentence on the ground that the reopening of the proceedings had been granted and that therefore the execution of the sentence had to be stayed, as required under Article 507 § 5 of the Code of Criminal Procedure (see paragraph 31 below). 15. In the meantime, on 27 September 2011 the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku) had requested the Osijek County Court to order that the applicant be remanded in custody under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding) pending the retrial. 16. In connection with that request, on 5 October 2011 a three-judge panel of the Osijek County Court heard the applicant and his lawyer. They argued, in particular, that the applicant had not sought to avoid trial and that his detention should be replaced by the application of a less restrictive measure, such as bail, which could be effected by the seizure of his mother’s house and of documents. 17. On the same day the Osijek County Court accepted the request of the State Attorney’s Office and ordered the applicant’s pre-trial detention under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding). The relevant part of the decision reads: “Having considered the [available] evidence, this panel has found that the accused Nenad Kovačević received an indictment [from the competent prosecutor] on 24 June 1997 ..., that the Osijek-baranja Police Department informed the Osijek County Court that the accused Nenad Kovačević was absent from his place of residence [in Croatia] as he had gone away in March 1998 and was [at the time] allegedly in Bosnia and Herzegovina, as stated by his mother. Furthermore, it was established that the accused Nenad Kovačević had been found guilty by the above-mentioned final judgment of the Osijek County Court of the offence of murder ... for which he had been sentenced to nine years’ imprisonment. It was also established that the accused Nenad Kovačević ... had been arrested [in Bosnia and Herzegovina] because a sentence-execution judge of this court ordered that he should start to serve his prison sentence, and therefore the objection that the general conditions for ordering detention under Article 123 of the Code of Criminal Procedure have not been met is unfounded. The final judgment adopted in the criminal proceedings conducted in the absence of the accused, by which he was found guilty on charges of murder and sentenced to nine years’ imprisonment, represents a reasonable suspicion that the accused Nenad Kovačević committed the offence of murder ... The fact that he fled, given that the order for his pre-trial detention and the arrest warrant remained futile and there was no possibility for the police to bring him [before the court] for a hearing, and that he was arrested only on the basis of [an arrest warrant] for the execution of the prison term to which he had been sentenced, suggests the existence of grounds for ordering pre-trial detention under Article 123 § 1(1) of the Code of Criminal Procedure; that is to say, special grounds justifying a risk that, if at large, the accused might abscond and thus hinder the proper conduct of these criminal proceedings. ... As already stated above, the accused Nenad Kovačević received the mentioned indictment by which he is charged with murder ... It follows [from the case file] that he was also detained. This suggests that the accused knew that the criminal proceedings at issue had been pending against him and that he had been charged with a serious criminal offence. He [nevertheless] left his residence and the territory of Croatia and was arrested on the territory of a country where he did not have residence, namely Bosnia and Herzegovina, while he himself stated that he had residence in Serbia. All these circumstances as well suggest that there is a risk that the accused might again abscond and thereby hinder the termination of the reopened proceedings at issue. In addition, as the panel of this court has found that the conditions for ordering detention in respect of the accused Nenad Kovačević under Article 123 § 1(1) of the Code of Criminal Procedure have been met, [it considers that] the measure of detention is necessary in order to avert the risk of absconding, which could not be achieved by bail or the alternative measures suggested by the accused and his defence lawyer. This is particularly true given the circumstances and severity of the offence at issue, and the fact that [the accused] is also a national of Serbia and that he himself stated that he had no residence in Croatia, which means that he could very easily leave the territory of Croatia.” 18. The applicant appealed to the Supreme Court (Vrhovni sud Republike Hrvatske), arguing that the indictment had not been served on him but on his brother, who had been a minor at the time, and that he had left Croatia for personal reasons. He offered his Croatian and Serbian passports and his mother’s house in Croatia as bail to guarantee that he would not abscond. The applicant also contended that the decision of the Osijek County Court lacked the relevant reasoning concerning the possibility of his conditional release. 19. The Supreme Court dismissed the applicant’s appeal as ill-founded on 4 November 2011. The relevant part of the decision reads: “Contrary to the appeal arguments, the Supreme Court as the second-instance court finds that the first-instance court correctly established that the defendant should be remanded in custody under Article 123 § 1(1) of the Code of Criminal Procedure. Reasonable suspicion that the defendant committed the offence [of murder] follows from the final judgment by which he was found guilty and sentenced to nine years’ imprisonment, which had been adopted after a trial in absentia and in respect of which a retrial was granted. The general requirement for detention has therefore been met. Furthermore, it should be noted that the defendant, although aware that criminal proceedings were pending against him (he was questioned by an investigating judge, he was detained from 5 February to 21 May 1997, and he received the indictment), left the territory of Croatia and thereby became unavailable during the proceedings conducted before the Osijek County Court. He was arrested only after a sentence-execution judge issued an order for his arrest for the execution of the prison sentence, and [the arrest] was effected on the basis of an international arrest warrant in Bosnia and Herzegovina, although he stated that his residence was in Serbia. All these circumstances, in the view of the Supreme Court as the second-instance court, suggest that there is a fear that the defendant, who is also a national of Serbia, if at large, could abscond and thereby hinder the course of the criminal proceedings. This in particular follows from his previous behaviour, the fact that he was unavailable to the judicial authorities for fourteen years and that he is again being tried for a serious criminal offence for which he had been found guilty in absentia and sentenced to nine years’ imprisonment ... The appeal arguments of the defendant that he did not know that the criminal proceedings at issue were pending as he had not received the indictment are unfounded because the material from the case file suggests the opposite. The case file contains signed delivery notices which demonstrate that he duly received the indictment. He was also questioned before an investigating judge concerning the offence of which he was later found guilty, and for which he had also spent some time in pre-trial detention. There is therefore no doubt that he knew about the criminal proceedings pending against him. Moreover, the appellant is wrong in contending that a fundamental procedural omission occurred in that the impugned decision is not sufficiently reasoned in respect of the possibility of applying bail or some other alternative measure. The first-instance court provided sufficient and clear reasons for considering it necessary to order pre-trial detention under Article 123 § 1(1) of the Code of Criminal Procedure and why the same purpose could not be achieved by bail or any other alternative measure; and this second-instance court fully endorses those reasons.” 20. On 9 December 2011 the applicant again requested that his pre-trial detention be replaced by bail or an alternative less restrictive measure. At the hearing held on 16 January 2012 he reiterated his request. 21. The Osijek County Court dismissed the applicant’s request on 16 January 2012 and extended his detention under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding), reiterating its previous reasoning. 22. On 2 February 2012, following a retrial, the Osijek County Court upheld the applicant’s conviction in absentia, finding him guilty of the offence of murder and sentencing him to nine years’ imprisonment. It was also decided on the same day that the applicant should remain in detention pending a final judgment. 23. The applicant appealed against that judgment to the Supreme Court. On 23 October 2012 the Supreme Court quashed the judgment and remitted the case to the Osijek County Court for re-examination on the grounds of the existence of procedural flaws. 24. At the same time, the Supreme Court extended the applicant’s detention under Article 123 § 1(1) of the Code of Criminal Procedure (risk of absconding), reiterating its previous reasons. 25. On 7 December 2012 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decision on his pre-trial detention. He argued in particular , his detention was disproportionate and should be replaced by bail or an alternative less restrictive preventive measure. 26. On 13 December 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. That decision was served on the applicant’s representative on 17 December 2012. 27. On 18 December 2012, having reheard the case, the Osijek County Court upheld the applicant’s conviction in absentia, finding him guilty of the offence of murder and sentencing him to nine years’ imprisonment. The applicant was remanded in custody pending a final judgment. 28. That judgment was upheld by the Supreme Court on 18 June 2013 and it thereby became final. On 18 October 2013 the applicant challenged it before the Constitutional Court and the proceedings before that court are still pending.