CASE OF CEVIZOVIC v. GERMANY
Preliminary objection rejected (estoppel);Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
Ireneu Cabral Barreto
9. The applicant, Zvonko Čevizović, is a Croatian national born in 1966. When lodging his application, he was detained in Oldenburg, Germany. He is presently living in Rogaška Slatina, Slovenia. 10. On 17 June 1996 the applicant was arrested in Wilhelmshaven. On 18 June 1996 the Wilhelmshaven District Court issued a warrant of arrest against the applicant on the ground that he was strongly suspected of having committed, with others, robbery connected with attempted murder. 11. On 4 November 1996 the Oldenburg Public Prosecutor’s Office charged the applicant with attempted murder, aggravated robbery, grievous physical injury and unauthorised carrying of weapons. 12. On 18 February 1997 the Oldenburg Regional Court admitted the indictment without modifications and decided to open the trial against the applicant and two other accused. The trial started on 14 March 1997 and took place on fifty-six days with an average duration of ninety minutes. On 22 May 1998 a lay assessor fell ill. As the additional lay assessor who was supposed to replace her had also fallen sick earlier on, the trial had to begin anew. 13. On 28 May 1998 the Oldenburg Regional Court upheld the arrest warrant against the applicant. It found that irrespective of the delay occasioned by the assessors’ illness, the applicant’s continued detention was proportionate given the serious nature of the crimes he was accused of. 14. On 2 June 1998 the trial reopened with two additional lay assessors. 15. On 22 June 1998 the Oldenburg Court of Appeal rejected the applicant’s appeal against the Oldenburg Regional Court’s decision to uphold the arrest warrant. 16. On 25 March 1999 the Oldenburg Regional Court dismissed the applicant’s renewed request to suspend the warrant of arrest of 18 June 1996 on the ground that the applicant remained under strong suspicion of having committed the crimes that he was accused of. On 7 May 1999 the Oldenburg Regional Court, upon the applicant’s appeal, reconsidered and confirmed its decision of 25 March 1999. It held that the delay in the trial had been caused by exceptional circumstances such as the difficulty in taking evidence, which required further investigations during the trial, and the illness of a lay assessor as well as the temporary illness of the presiding judge. The strong suspicion that the applicant had committed the serious crimes he was accused of had not been invalidated during the trial. As the applicant’s partner and son lived in Slovenia, the applicant was also likely to abscond if released. 17. On 1 June 1999 the Oldenburg Court of Appeal confirmed the decision of the lower court, stating that although the applicant had at that point already been in custody for nearly three years, this did not justify his release. 18. On 9 July 1999 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. 19. On 14 June 2000 the Oldenburg Regional Court dismissed the applicant’s new request to suspend the warrant of arrest of 18 June 1996 on the ground that the allegedly new evidence submitted by the applicant did not justify such a suspension. It found that if released, the applicant was very likely to abscond, given the circumstances of his arrest and the sentence which he risked incurring if found guilty as charged. The Regional Court noted that the applicant was residing illegally in Germany and that an expulsion order had been issued against him. The length of the applicant’s detention on remand did not compare to the risk mentioned above. The Regional Court included a detailed account of the trial, explaining the continued conduct of the proceedings, which disclosed that on several occasions witnesses could not be questioned by the court because they either did not come to the hearing or made use of their right not to testify. Furthermore, the applicant and his co-accused had, often later than necessary, filed numerous motions for evidence to be taken. It observed that at the present time, it was not possible to disjoin the applicant’s case from those of the other accused, as they were accused of committing the offences jointly. 20. On 21 June 2000, following the applicant’s appeal, the Oldenburg Regional Court confirmed its original decision. It pointed out that the prolonged investigations by way of letters rogatory in Macedonia and the summoning of witnesses from abroad, which were necessitated by the belated alibi produced by one of the applicant’s co-accused, did not warrant the applicant’s release. 21. On 27 June 2000 the Oldenburg Court of Appeal confirmed this decision. 22. On 10 August 2000 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. 23. On 26 September 2000 the Oldenburg Regional Court dismissed the applicant’s further request to suspend the arrest warrant on the grounds that contrary to his allegations, the suspicion persisted that he had committed the crimes he was accused of and was still likely to abscond if released, especially considering the high prison sentence he risked incurring if found guilty according to the indictment. 24. On 20 March 2001 the Oldenburg Regional Court pronounced its judgment after having held an average of less than four hearings per month with an average duration of less than two and a half hours each. It convicted the applicant of attempted murder, aggravated robbery and grievous physical injury as well as of unauthorised carrying of weapons and sentenced him to ten years and six months’ imprisonment. In fixing the length of the applicant’s sentence, the Regional Court took into consideration the inordinate length of his detention and of the criminal proceedings, in particular the delay occasioned by the sickness of the lay assessor and the ensuing suspension of proceedings. 25. On 21 March 2001, the applicant appealed against the Regional Court’s judgment. In the negotiations that followed between the applicant’s legal counsel and the Prosecutor’s Office, the latter eventually consented to the applicant’s expulsion to his country of origin in lieu of serving his prison sentence in Germany. In exchange for this, and due to the increasing length of his detention on remand, which would have continued during the appeal proceedings, the applicant agreed to withdraw his appeal. 26. On 4 April 2001, the applicant withdrew his appeal. On 5 April 2001 the Oldenburg Regional Court made an order for costs following the applicant’s withdrawal of the appeal. On 28 May 2001, the Prosecutor’s Office suspended the further execution of the applicant’s prison sentence and agreed to his expulsion to Croatia. A new arrest warrant was issued to the effect that, upon returning to Germany before the year 2026, the applicant would be arrested and imprisoned instantly in order to complete his prison sentence. On 25 July 2001, the applicant was expelled to Croatia.