CASE OF ORAVEC v. CROATIA
Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1978 and lives in Osijek. 6. On 27 April 2011 the applicant was arrested on suspicion of trafficking illegal substances. On the same day an investigating judge of the Osijek County Court (Županijski sud u Osijeku) heard his evidence and ordered his pre-trial detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). The decision also stated that the detention could not exceed forty-eight hours. 7. On 28 April 2011 another investigating judge of the Osijek County Court summoned the applicant, who said that he would be remaining silent because he wanted to be represented by a lawyer, D.O. The judge issued a decision on opening an investigation against him and two other suspects, G.D. and I.D., on charges of trafficking illegal substances. He also ordered his detention for one month, referring to Article 104 § 1 and Article 102 § 1 (3) of the Code of Criminal Procedure. The applicant’s detention was ordered because G.D. had said that he had been buying illegal drugs from him. Furthermore, he was unemployed and another set of criminal proceedings on similar charges was pending against him. Following an appeal lodged by the applicant, on 3 May 2011 the decision on his detention was upheld by a three-judge panel of the Osijek County Court. 8. On 24 May 2011 the investigating judge ordered the applicant’s immediate release because G.D. had retracted his previous statement that he had been buying illegal drugs from him. Furthermore, the applicant had submitted documents showing that he had his own candle-making business. The applicant was released that same day. However, following an appeal lodged by the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku), on 26 May 2011 a three-judge panel of the Osijek County Court quashed that investigating judge’s decision and ordered him to re-examine the case. 9. On 31 May 2011 the investigating judge confirmed his previous decision. On 1 June 2011 the Osijek County State Attorney’s Office lodged an appeal, which was not communicated to the applicant or his counsel. It was argued that the risk of the applicant reoffending continued to exist for several reasons. Firstly, G.D. had given a detailed statement describing how he and I.D. had been buying illegal drugs from the applicant, and the evidence showed that the applicant had had frequent telephone contact with G.D. and I.D. Furthermore, G.D.’s retraction of his previous statement had been unconvincing. Secondly, the applicant had already been convicted of a similar offence, and another set of criminal proceedings concerning charges of trafficking illegal substances were pending against him. Thirdly, the evidence indicated that the applicant had been suspected of selling illegal substances over a longer period of time. Fourthly, he was unemployed and had no lawful means of subsistence. 10. On 10 June 2011 a three-judge panel of the Osijek County Court, composed of Judges D.K., A.B. and M.J., held a closed session in the parties’ absence. They reversed the investigating judge’s decision and ordered the applicant’s pre-trial detention under Article 102 § 1 (3) of the Code of Criminal Procedure. The decision did not set any time-limit for the detention. 11. On 14 June 2011 the applicant was again placed in pre-trial detention. 12. On 17 June he lodged an appeal with the Supreme Court against the decision of 10 June 2011. Judge M.R., acting as a single judge of the Osijek County Court, declared it inadmissible on 27 June 2011 on the grounds that it was not amenable to further appeal. This decision was upheld on 1 July 2011 by a three-judge panel of the same court, composed of Judges R.Š., A.R. and N.S. 13. On 6 July 2011 the Osijek County State Attorney’s Office indicted the applicant in the Osijek County Court on charges of trafficking illegal substances. 14. On 8 July 2011 a three-judge panel of the court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure. An appeal lodged by him against that decision was dismissed by the Supreme Court on 20 July 2011. 15. On 12 July 2011 the applicant lodged two constitutional complaints, about the decisions of 10 June and 1 July 2011 respectively (see paragraphs 10 and 12 above). 16. On 15 July 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the constitutional complaint about the decision of 10 June 2011 inadmissible, on the grounds that on 8 July 2011 a new decision extending the applicant’s detention had been adopted. It also declared his constitutional complaint about the decision of 1 July 2011 inadmissible, endorsing the lower courts’ reasoning (see paragraph 12 above). 17. On 18 October 2012 the Osijek County Court dismissed the indictment against the applicant because the prosecutor had withdrawn the charges against him. On 14 June 2012 the Supreme Court ordered his release. 18. On 15 April 2013 the applicant submitted a request for settlement with the Ministry of Justice in connection with his wrongful detention. A settlement was not reached. 19. On 1 August 2013 the applicant brought a claim in the Osijek Municipal Court against the State under Article 480 of the Code of Criminal Procedure, seeking non-pecuniary and pecuniary damages for his detention, which he claimed had been unfounded (neosnovan). 20. On 18 February 2014 the court allowed the applicant’s claim and awarded him 137,550 Croatian kunas (HRK – about 18,560 euros) in non-pecuniary damages. It held that his detention had been unfounded because a judgment dismissing the charges (presuda kojom se optužba odbija) had been adopted after the State Attorney’s Office had dropped the charges against him. The proceedings are still pending as regards the claim for pecuniary damages. The relevant part of the judgment reads: “The claimant’s claim is well founded in its entirety. The documents in the case file show that the claimant was finally acquitted of the charge [sic] that he had committed the criminal offence against the values protected by international law – abuse of illegal drugs, described and punishable under Article 173 § 2 of the Criminal Code in conjunction with section 41 of the Criminal Code Amendments Act (Official Gazette no. 71/06) by the Osijek County Court’s final judgment no. K-43/2012-86 of 18 October 2012. Further documents show that the claimant was actually detained in connection with the criminal proceedings against him for 393 days. The Osijek County Court’s decision no. Kv-138/2011-3 of 26 May 2011 (pages 16 and 17 of the case file) shows that the claimant had already been finally convicted by the Donji Miholjac Municipal Court of the criminal offence of abuse of illegal drugs under Article 173 § 1 of the Criminal Code, that is to say for an offence of the same type but in its basic form. Against the above background, this court considers that the claimant is to be awarded the amount of HRK 350 for each day he spent in detention, which in total amounts to HRK 137,550 since the claimant was detained without basis for 393 days. When assessing the adequate amount of [just] satisfaction, the Court has taken into account all the circumstances of this case: that the claimant was indicted for the criminal offence of abuse of illegal drugs, described and punishable under Article 173(2) of the Criminal Code in conjunction with section 41 of the Criminal Code Amendments Act; was deprived of his personal liberty for 393 days; [and] that the proceedings ended by the Osijek County Court’s judgment no. K-43/2012-86 of 18 October 2012 because the County State Attorney’s Office had withdrawn the charges. It is true that the claimant was previously convicted of the above-mentioned criminal offence. However, in the opinion of this court the sole fact that the claimant was previously convicted has no effect on the defendant’s obligation to compensate him for his unfounded deprivation of liberty, or his detention. Therefore, since the defendant has not proved that the claimant caused his arrest by some unlawful act such as absconding or concealing evidence, this court considers that there was no contribution on his part to the ordering of his detention.”