CASE OF MARGARETIĆ v. CROATIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Non-pecuniary damage - award
Dmitry Dedov;Erik Møse;Georgieva;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Paulo Pinto De Albuquerque;Ksenija Turković
4. The applicant was born in 1969 and lives in Osijek. Prior to his arrest and detention, which gave rise to the case at issue, the applicant worked as a police officer in the Osijek-Baranja Police Department (Policijska uprava Osječko-baranjska). 5. On 23 March 2012 the applicant was arrested on suspicion of conspiracy and abuse of power and authority. 6. The following day he was brought before an investigating judge (sudac istrage) of the Zagreb County Court (Županijski sud u Zagrebu) who ordered that he be placed in pre-trial detention (istražni zatvor) for a further two months under Article 123 § 1(2) and (3) of the Code of Criminal Procedure (risk of collusion and risk of reoffending) or, alternatively, released on bail, which was set at 700,000 Croatian kunas (HRK). The judge held that the applicant’s detention was necessary because some further physical evidence had to be collected, and in order to prevent him from coordinating his defence with the second suspect, who was still at large. She also considered that there was a risk that the applicant might suborn witnesses and, given and his employment as a police officer, that he might reoffend. 7. On the same day the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: the “State Attorney’s Office”) opened an investigation against the applicant and six others persons in connection with suspected conspiracy and abuse of power and authority. 8. The applicant and the State Attorney’s Office also lodged appeals against the investigating judge’s decision on the applicant’s detention. The applicant challenged the reasons for his pre-trial detention while the State Attorney’s Office challenged the part of the investigating judge’s decision allowing for the applicant’s conditional release on bail. 9. On 4 April 2012 a three-judge panel of the Zagreb County Court allowed the appeal of the State Attorney’s Office and reversed the investigating judge’s decision allowing for the applicant’detaining the applicant was the only way to prevent the risk of collusion and reoffending. 10. On 6 April 2012 the same three-judge panel of the Zagreb County Court dismissed the applicant’ate his defence with the second suspect, who was still at large, and that he might interfere with the seizure of further physical evidence and suborn nine witnesses (M.I., I.R., T.P., M.H., Z.N., S.K., Z.L., D.J. and S.P.) who worked as police officers in the Osijek-Baranja Police Department. It also endorsed the investigating judge’s finding as to the possibility of the applicant’s reoffending. 11. On 23 April 2012 the State Attorney’s Office requested the investigating judge to extend the applicant’s pre-trial detention on the grounds of the risk of collusion and risk of reoffending, relying on the same grounds on which the applicant had initially been detained. 12. The investigating judge extended on the same day the applicant’s pre-trial detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) and dismissed the request to extend his detention under Article 123 § 1(3) of the Code of Criminal Procedure (risk of reoffending). She held that there were sufficient reasons to believe that, if at large, the applicant could suborn witnesses and coordinate his defence with the second suspect, who still had not been apprehended. However, the judge found that in the meantime the applicant had been suspended from service and therefore she considered that there was no longer a risk that he might reoffend. 13. The decision of the investigating judge was upheld by a three-judge panel of the Zagreb County Court on 11 May 2012. 14. At a detention hearing on 20 June 2012 the State Attorney’s Office again motioned for the extension of the applicant’s detention. The applicant objected, pointing out that there was sufficient time for the questioning of the witnesses and that it was no longer necessary to keep him in detention. 15. The investigating judge accepted the request of the State Attorney’s Office and extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) reiterating the arguments that there was a risk that the applicant might suborn witnesses and coordinate his defence with the second suspect. 16. The applicant appealed against this decision, and on 12 July 2012 a three-judge panel of the Zagreb County Court allowed his appeal and remitted the case to the investigating judge for re-examination but without releasing the applicant from detention. It held that the decision lacked the relevant reasoning as it was not clear whom exactly the applicant might suborn and under what circumstances. 17. At a detention hearing on 25 July 2012 the applicant pointed out that his detention depended on the questioning of witnesses whom the State Attorney’s Office had had sufficient time to question and that there was no reason to believe that he might suborn the second suspect. He also asked the investigating judge to examine the possibility of his conditional release under preventive measures. 18. The investigating judge extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion). She pointed out that in fact it had been necessary to question nine witnesses (I.R., D.J., T.P., S.K., M.I., M.H. and Z.N – noted above in paragraph 10; and two others, M.Ke and M.Ko.) who worked as police officers in the Osijek-Baranja Police Department and that there was a risk that the applicant might suborn them. However, the judge dismissed the request to keep the applicant in detention on the grounds that he might coordinate his defence with the second suspect, who was still at large, holding that he had given his defence and therefore there was no risk that he might coordinate it with the second suspect. The judge noted that: “.. all the suspects have given their defence so there is no risk that, if at large, they could coordinate their defences with the second suspect, and the fact that they might be questioned as suspects again during the proceedings is not a reason to extend their detention now under Article 123 § 1(2) of the Code of Criminal Procedure with regard to the second suspect ...” 19. The applicant appealed against that decision, arguing that the investigating judge had failed to show that he might suborn the witnesses. 20. On 23 August 2012 at a detention hearing the State Attorney’s Office asked the investigating judge to extend the applicant’s detention on the grounds that he might suborn the above-mentioned nine witnesses (see paragraph 18 above). It also considered, pointing out that a number of witnesses had to be questioned and that a considerable amount of other evidence had to be taken during the investigation, that the investigation had not lasted an unreasonably long time. 21. The investigating judge accepted the request and extended the applicant’s detention for one month under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the grounds that there was a danger that he might suborn the witnesses. She also considered that the danger of his suborning the witnesses could not be averted by the application of preventive measures. 22. The applicant appealed against this decision and on 12 September 2012 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded. 23. On 20 September 2012 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal against the investigating judge’s decision of 25 July 2012 (see paragraphs 17-19 above) as ill-founded. 24. On the same day the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) extended the investigation, based on a proposal made by the lower State Attorney’s Office conducting the proceedings, for a further twelve months on the grounds that it was necessary to question a number of witnesses and take other evidence and to request international assistance in obtaining the relevant information. 25. At a detention hearing on 21 September 2012 the applicant contended that there had been sufficient time for the State Attorney’s Office to question the witnesses against him and asked the investigating judge to order that the witnesses be questioned without any further delay. 26. The investigating judge extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) reiterating the same reasoning that the applicant might suborn the nine witnesses referred to above and holding that his detention could not be replaced by preventive measures. 27. On an unspecified date in September 2012 the applicant lodged an appeal against that decision, arguing that there had been more than sufficient time to question the witnesses and that his detention was no longer reasonable and justified. 28. On 24 September 2012 the applicant submitted a request asking the investigating judge to order the State Attorney’s Office to question the nine witnesses, pointing out that he had already been detained for more than six months and that the witnesses had still not been questioned. He also argued that his detention had been ordered and extended only in relation to the questioning of those witnesses and no action had been taken in that respect. 29. On 9 October 2012 the investigating judge accepted the applicant’s request and ordered the State Attorney’s Office to question the witnesses within fourteen days. In her order, the judge noted: “The suspect Bruno Margaretić has been detained since 23 March 2012 and his detention was extended [several times] based on the decisions of this court. Bearing in mind that the suspect has been detained for more than six months, and that throughout that period the State Attorney’s Office has repeatedly relied on the need to question those very witnesses, it is beyond doubt that in the said period those witnesses could have been questioned. Since in the period at issue the above-mentioned witnesses have not been questioned and the suspect Bruno Margaretić has been detained [for the entire time] it is necessary to question the witnesses promptly. This is because detention is a measure of last resort and as such it must be reduced to a minimum while all procedural actions must be taken without delay. This judge considers that a time-limit of fourteen days is sufficient for the questioning of the witnesses since there are only nine of them.” 30. On 10 October 2012 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal against the decision on his detention of 21 September 2012 (see paragraphs 25-27 above), reiterating the arguments they had used to order the applicant’s detention pending the questioning of the witnesses. 31. On 15 October 2012 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the decision of the three-judge panel of 20 September 2012 dismissing his appeal against the decision on his detention of 25 July 2012 (see paragraph 23 above) and against the decision of a three-judge panel of 12 September 2012 dismissing his appeal against the decision on his detention of 23 August 2012 (see paragraph 22 above). The applicant argued that his detention was arbitrary, since although the investigating judge had found that the witnesses could be questioned within fourteen days, he had been detained on the ground that they needed questioning for almost seven months. 32. On an unspecified date in 2012 the applicant lodged a further constitutional complaint against the decision of the three-judge panel of 10 October 2012 dismissing his appeal against the decision on his detention of 21 September 2012 (see paragraph 30 above), reiterating the same reasoning. 33. On 25 October 2012 the Constitutional Court declared the applicant’s constitutional complaint of 15 October 2012 inadmissible on the grounds that in the meantime, on 21 September 2012 (see paragraphs 25 and 26 above), a new decision on the applicant’s detention had been adopted and that he was no longer detained in connection with the decisions complained of. 34. On 6 November 2012 the Constitutional Court dismissed the applicant’s constitutional complaint against the decision of the three-judge panel of 10 October 2012 (see paragraphs 30 and 32 above) as ill-founded, endorsing the reasoning of the lower courts. 35. In the meantime, the State Attorney’s Office complied with the order of the investigating judge of 9 October 2012 (see paragraph 29 above) and questioned eight of the nine witnesses in one day (on 20 October 2012) and the remaining one on 24 October 2012. On the same day it applied for the extension of the applicant’s detention under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the grounds that he could coordinate his defence with the second suspect, who was still at large. 36. On 6 November 2012 the applicant requested to be released from detention, arguing that no relevant reasons for keeping him in custody existed. 37. A hearing concerning the applicant’s request was held on 21 November 2012, at which the applicant reiterated his arguments and the Deputy State Attorney pointed out that the second suspect was still at large and that the prosecuting authorities were doing their utmost to apprehend him. She therefore considered that the applicant should be kept in detention in order to prevent him from coordinating his defence with the second suspect. 38. The investigating judge dismissed the applicant’s request for release on the grounds that the applicant could contact the second suspect and that they could coordinate their defences. The relevant part of the decision reads: “The second suspect is still at large and he has had contact with the fifth suspect, Bruno Margaretić, which means that the fifth suspect, if released, could get in touch with the second suspect, which would allow them to coordinate their defences and to obstruct the conduct of the proceedings.” 39. A further detention hearing was held on 23 November 2012, at which the applicant pointed out that he had been detained on the sole ground that he might suborn the witnesses, while no other reason, in particular the possibility of his coordinating his defence with the second suspect, had been adduced, and that it was only now, after the witnesses had been questioned, that an extension of his detention was requested on the ground that he might collude with the second suspect. The applicant considered that that was not possible, because according to the available information the second suspect lived in Serbia and, given the media coverage of the proceedings at issue, it was unlikely that he would come to Croatia. The applicant therefore asked the investigating judge, if she considered that there was a possibility of them contacting each other, to release him on condition that his passport be seized and other preventive measures which would prevent him from contacting the second suspect be applied if necessary. 40. The investigating judge extended the applicant’s pre-trial detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the grounds that there was a danger that he might contact the second accused. The relevant part of the decision reads: “As regards the fifth suspect [Bruno Margaretić] and the sixth suspect, the investigating judge finds that a risk of collusion with the second suspect, D.G., who is at large, still exists. The defence arguments that the detention could be replaced by preventive measures and that D.G. is a citizen of Serbia and has not come to Croatia since 11 January 2012 are of no relevance at this stage of the proceedings. It should be noted that that the suspects at issue were police officers who most certainly knew a lot of people and could therefore easily get in touch with the second suspect, D.G. This risk could not be averted by the seizure of their passports, because they could travel to certain countries with their identity cards alone and could easily meet the second suspect somewhere else. The analysis of the telephone conversations shows that the fifth suspect [Bruno Margaretić] previously contacted the second suspect and that therefore he more or less knows where to find him and how to reach him, while the sixth suspect is his colleague and friend, and [therefore] they could both get in touch with the second suspect without difficulty. That risk can be averted only by their detention and therefore the conditions under Article 123 § 1(2) of the Code of Criminal Procedure have been met.” 41. The applicant appealed against that decision and on 12 December 2012 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, endorsing the reasoning of the investigating judge. 42. On 8 January 2013 the applicant lodged a constitutional complaint against that decision and on 15 January 2013 the Constitutional Court dismissed it as ill-founded, endorsing the arguments of the lower courts. 43. On 22 January 2013 a detention hearing was held at which the parties reiterated their previous arguments. The investigating judge extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion), or alternatively, set bail for his release at HRK 1,500,000. The judge held that there was a risk that the applicant would contact the second suspect, which warranted his detention. He could, however, be released on bail, the amount of’s personal situation, namely, the fact that he was in employment, owned property and had a family who could support him financially. 44. The applicant appealed against that decision, arguing that there were no relevant reasons to keep him in detention and that the amount set for bail was excessive. 45. On 7 February 2013 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, endorsing the reasoning of the investigating judge. 46. On 26 February 2013 the applicant lodged a constitutional complaint against that decision with the Constitutional Court, arguing that the lower courts had failed to provide relevant and sufficient reasons for his detention. 47. On 28 February 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. 48. On 22 March 2013 a three-judge panel of the Zagreb County Court extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) and set bail for his release at HRK 1,500,000. It held that there was a risk that the applicant might contact the second suspect and that they could coordinate their defences. It also considered that the risk could be averted by the deposit of bail in an amount which corresponded to the circumstances of the offence and the fact that the applicant was employed and had a regular income. 49. The applicant appealed against that decision to the Supreme Court (Vrhovni sud Republike Hrvatske), reiterating his previous arguments and asking that his detention be replaced with preventive measures. 50. On 12 April 2013 the Supreme Court quashed the decision of the three-judge panel of the Zagreb County Court extending the applicant’s detention and remitted the case for re-examination but without releasing the applicant from detention. The Supreme Court held that the Zagreb County Court had not given consideration to the possibility of imposing less severe preventive measures on the applicant and that the amount of bail requested for his release had been excessive. 51. On 22 April 2013 a three-judge panel of the Zagreb County Court again extended the applicant’s detention under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the grounds that the applicant could contact the second applicable preventive measures. 52. On 23 April 2013 the State Attorney’s Office indicted the applicant and six other persons in the Zagreb County Court on the charges of conspiracy and abuse of power and authority. The State Attorney’s Office also requested that the applicant be kept in detention pending trial. 53. On 2 May 2013 the applicant lodged an appeal with the Supreme Court challenging the decision of the Zagreb County Court of 22 April 2013 extending his detention, arguing that the Zagreb County Court had failed to comply with the instructions provided in the Supreme Court’s decision of 12 April 2013 (see paragraph 50 above). 54. On 10 May 2013 the Supreme Court accepted the applicant’s appeal and, without releasing the applicant from detention, remitted the case to the Zagreb County Court for re-examination on the grounds that the decision of the Zagreb County Court lacked the relevant reasoning. 55. On 21 May 2013 a three-judge panel of the Zagreb County Court released the applicant from detention on condition that he refrain from contacting the second accused and ordered the seizure of his travel documents. It held that the applicant had been detained for almost fifteen months whereas it was uncertain when, and indeed if, the second accused would be arrested. It also found that the applicant’s financial situation was not secure, as he was a divorced father of two and was without employment or income. Therefore, there were no grounds to request that bail be posted for his release. 56. The State Attorney’s Office lodged an appeal against that decision, arguing that the applicant should be kept in detention and on 12 June 2013 the Supreme Court dismissed the appeal as ill-founded, endorsing the reasoning of the Zagreb County Court. 57. The criminal proceedings against the applicant are still pending. 58. Parallel to the criminal proceedings, on 24 March 2012 the Chief of the Osijek-baranja Police Department ordered the applicant’s suspension from duty pending the outcome of the criminal proceedings. 59. On an unspecified date in 2012 the applicant, represented by a lawyer, challenged that decision before an appeal panel of the Ministry of the Interior (Ministartsvo unutarnjih poslova Republike Hrvatske), arguing that there had been no reason for his suspension. 60. On 17 April 2012 the appeal panel of the Ministry of the Interior dismissed the applicant’s appeal as ill-founded. The relevant part of the decision reads: “The suspension was ordered under section 112(3) of the Police Act, which provides that the minister or a commanding officer, which is in the case at issue the Chief of the Police Department, can order the suspension of a police officer even before disciplinary proceedings have been opened ... when he or she considers that the breach of duty at issue is of such a nature that keeping the police officer on duty could harm the interests of the service. ... Taking into account the circumstances of the present case, namely, the reasonable suspicion that the appellant had abused [his] power and authority, for which reason he was arrested, this panel considers that the first-instance body correctly and lawfully suspended him from service under section 112 of the Police Act ...” 61. Through his lawyer the applicant lodged an administrative action against that decision with the Osijek Administrative Court (Upravni sud u Osijeku) challenging the reasons for his suspension and arguing that the decisions of the lower bodies had not been sufficiently reasoned. 62. On 17 September 2012 the applicant’s lawyer submitted further written observations on the merits of the case and requested that a hearing scheduled for 18 September 2012 be adjourned until the applicant’s release from detention. 63. On 18 September 2012 the Osijek Administrative Court held a hearing in the absence of the applicant and his representative and dismissed the applicant’s administrative action as ill-founded. It found that the request for the adjournment of the hearing had been no more than an attempt to delay the proceedings and that the applicant’s representative, although duly informed, had failed to appear at the hearing without providing any relevant reasons. As to the merits of the case, the Osijek Administrative Court noted: “There is no dispute between the parties that the plaintiff was suspended due to a reasonable suspicion that he had committed a grave breach of his official duty. The dispute between the parties relates to the question of whether the defendant [had the right to] suspend the plaintiff from duty on the basis of the reasonable suspicion alone. ... [T]he fact that the plaintiff has been remanded in custody on a reasonable suspicion that he has committed an offence under Article 337 of the Criminal Code (abuse of power and authority) justifies the decision of the defendant, because the placing of a police officer in detention for the offence at issue could be damaging for the interests of the service and therefore his suspension is justified.” 64. Through his lawyer the applicant lodged an appeal with the High Administrative Court (Visoki upravni sud Republike Hrvatske) and on 11 October 2012 that court declared his appeal inadmissible on the grounds that the Osijek Administrative Court had not itself decided on the merits of the applicant’s rights and obligations but only dismissed his administrative action. 65. On 14 December 2012 the applicant’s lawyer lodged a constitutional complaint on behalf of the applicant with the Constitutional Court, challenging the lower courts’ decisions. 66. On 31 January 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.