GUDELJ v. CROATIA
Inadmissible
Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
1. The applicant, Mr Antun Gudelj, is a Croatian national, who was born in 1947 and lives in Sidney, Australia. Currently he is serving a prison term in Croatia. He was represented before the Court by Mr P. Sabolić, a lawyer practising in Osijek. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 2. On 9 July 1991 an investigation was opened in respect of the applicant before the Osijek County Court (Županijski sud u Osijeku) in connection with a suspicion that he had committed three murders and one attempted murder. 3. The investigating judge ordered the applicant’s pre-trial detention on 12 August 1991 on the ground that he might abscond, collude or reoffend. However, during the investigation the applicant remained at large and his whereabouts were unknown to the prosecuting authorities. 4. On 25 March 1992 the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku) indicted the applicant in the Osijek County Court on charges of triple murder and one attempted murder. 5. On 27 May 1992 the Osijek County Court ordered that the trial be held in the applicant’s absence, since his whereabouts had remained unknown. On 27 June 1994 the court found the applicant guilty as charged and sentenced him to twenty years’ imprisonment. On the same day the court issued a new order on his detention. 6. On 29 February 1996 the applicant was extradited from Australia to Croatia, where he was immediately detained, pursuant to the Osijek County Court’s order. 7. On 7 March 1996 the Supreme Court (Vrhovni sud Republike Hrvatske) ordered the applicant’s retrial, during which he was remanded in custody. 8. On 22 May 1997 the Supreme Court found that the General Amnesty Act (Zakon o općem oprostu) was applicable to the applicant’s case, terminated the proceedings against him and ordered his release. 9. On 3 June 1997 the applicant was released from detention. 10. On 14 March 2001 the Constitutional Court (Ustavni sud Republike Hrvatske), acting on a constitutional complaint lodged by one of the victims’ relatives, quashed the Supreme Court’s decision of 22 May 1997 and ordered a new trial. 11. On 18 June 2001 a three-judge panel of the Osijek County Court again ordered the applicant’s detention. However, the applicant remained at large because his whereabouts were unknown. 12. On 15 July 2007 the applicant was again extradited from Australia to Croatia, where he was immediately detained pursuant to the Osijek County Court’s order. 13. On 9 October 2007 a new trial commenced in the Osijek County Court in which the applicant was accused of triple murder and one attempted murder. During the trial the applicant was remanded in custody. 14. On 7 July 2008 the Osijek County Court found the applicant guilty as charged and sentenced him to twenty years’ imprisonment. On the same day the trial court ordered his detention pending completion of the firstinstance judgment. 15. On 20 October 2008 the applicant lodged an appeal against the firstinstance judgment of the Osijek County Court but on 9 April 2009 the Supreme Court dismissed the appeal. 16. On 11 April 2009 a three-judge panel of the Osijek County Court extended the applicant’s detention for a further nine months under Article 109 § 2 of the Code of Criminal Procedure. The relevant part of the decision reads: “The accused, Antun Gudelj, was detained ... between 29 February 1996 and 3 June 1997 and has been detained again... since 15 July 2007. ... given that a non-final judgment had been adopted in this case, this panel has established that, under Article 109 § 2 of the Code of Criminal Procedure, the overall duration of detention, which until the adoption of the first-instance judgment could have lasted up to three years (Article 109 § 1 of the Code of Criminal Procedure), may be extended for one-quarter [of the maximum prescribed statutory limit] until the judgment becomes final. Thus the overall detention may last for three years and nine months. The overall duration of detention could be extended on condition that the three-year limit had not expired. In the present case, on 11 April 2009 the three-year limit had not yet expired, so the accused’s detention was lawfully extended.” 17. On 14 April 2009 the applicant lodged an appeal with the Supreme Court, arguing that the maximum period of his detention had in fact expired on 9 April 2009. This meant that the impugned decision by the Osijek County Court had been adopted with two days’ delay and that therefore the extension of his detention had been unlawful. 18. On 29 April 2009 the Supreme Court dismissed the applicant’s appeal against the Osijek County Court’s decision to extend the applicant’s detention for a further nine months. 19. On 21 May 2009 the applicant lodged a further appeal with the Supreme Court against the second-instance judgment. 20. On 27 May 2009 the applicant lodged a constitutional complaint against the Supreme Court’s decision of 29 April 2009 to uphold the Osijek County Court’s decision extending his detention, reiterating that his continued detention had been unlawful. 21. On 9 December 2009 the Supreme Court, acting as the final court of appeal, dismissed the applicant’s appeal against the second-instance judgment, and the applicant’s conviction thus became final. 22. On 22 December 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the ground that in the meantime, on 18 October 2010, the applicant had been sent to prison. 23. On 17 September 2010 the applicant lodged a further constitutional complaint against the Supreme Court’s judgment of 9 December 2009, challenging his conviction. 24. The proceedings before the Constitutional Court appear to be still pending. 25. Section 62(1) of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations or a 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’) ...” 26. The relevant provisions of the Criminal Code of the Republic of Croatia (Krivični zakon Republike Hrvatske, Official Gazette nos. 32/1993, 38/1993, 28/1996, 30/1996) are worded as follows: “(1) Whoever deprives another person of his life shall be punished by imprisonment of at least five years. (2) imprisonment of at least ten years or twenty years : 4) deprives another person of his life ... out of ruthless revenge ...; 5) deprives of his life an official in the course of performing his duties of prevention and discovery of offences, apprehension of perpetrators of the offences, securing public peace and order, or who deprives of his life an official who is guarding a person deprived of liberty or who deprives of life another person who is performing some of those duties in the function of civil protection.” 27. 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 and 62/2003) are worded as follows: “(1) Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of: (1) six months for offences carrying a statutory maximum sentence of three years’ imprisonment; (2) one year for offences carrying a statutory maximum sentence of five years’ imprisonment; (3) eighteen months for offences carrying a statutory maximum sentence of eight years’ imprisonment; (4) two years for offences carrying a sentence of more than eight years’ imprisonment; (5) three years for offences carrying a sentence of long-term imprisonment. (2) In cases where a judgment has been adopted but has not yet entered into force, the maximum term of pre-trial detention may be extended for one-sixth of the term referred to in subparagraphs 1 to 3 of paragraph 1 of this provision until the judgment becomes final, and for a quarter of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision. (3) Where a first-instance judgment has been quashed on appeal, following an application by the State Attorney and where important reasons exist, the Supreme Court may extend the term of detention referred to in subparagraphs 1 to 3 of paragraph 1 of this provision for another six months and the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision for another year. (4) Following the adoption of an appellate judgment against which an appeal is allowed, detention may last until the judgment becomes final, for a maximum period of three months. (5) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is committed to prison, but for no longer than the duration of his prison term.”