CASE OF ŠOŠ v. CROATIA
Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1980 and lives in Zagreb. 6. On 19 May 2011 the Split Office of the National Police Unit for the Suppression of Corruption and Organised Crime (Policijski nacionalni ured za suzbijanje korupcije i organiziranog kriminaliteta, Odjel za suzbijanje korupcije i organiziranog kriminaliteta Split; hereinafter: “the police”) lodged a criminal complaint against the applicant before the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Državno odvjetništvo, Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: “the State Attorney’s Office”), alleging that he had participated in an organised international drug-trafficking scheme. 7. On the basis of the extensive evidence collected during the preliminary investigation, including through mechanisms of international legal assistance in criminal matters from the authorities in Spain, Slovenia and the Netherlands, and the results of secret surveillance measures, on 20 May 2011 the State Attorney’s Office opened an investigation in respect of the applicant and nine other persons suspected of drug trafficking. In particular, it was alleged that the applicant had participated in an organised drug-trafficking scheme by securing the means of communication between other members of the group. 8. During the investigation, the State Attorney’s Office questioned a number of witnesses and obtained further voluminous evidence from the police. It also commissioned telecommunication expert reports and requested assistance in obtaining evidence from the authorities in Spain, Slovenia, the Czech Republic, Bosnia and Herzegovina and the Netherlands. 9. On 9 November 2011 the State Attorney of the Republic of Croatia (Glavni državni odvjetnik Republike Hrvatske) extended the investigation for a further six months. 10. Following the completion of the investigation, on 16 May 2012 the State Attorney’s Office indicted the applicant and nine other defendants in the Split County Court (Županijski sud u Splitu) on charges of drug trafficking. It alleged that the applicant had facilitated communication between other members of the group operating an international drug-trafficking scheme. 11. On 18 May 2012 the investigating judge forwarded the indictment to the defendants, instructing them that they could submit their comments on it within a period of eight days. 12. On 28 May 2012 the applicant denied the charge, alleging numerous substantive and procedural flaws. 13. Several hearings for the confirmation of the indictment were held before a three-judge panel of the Split County Court. Meanwhile, the defence lawyers challenged the decision on the admissibility of evidence before the Supreme Court. 14. On 23 November 2012 the applicant complained to the Supreme Court of a lack of diligence in the conduct of the proceedings. He pointed out that the Supreme Court had not yet decided on the question of the admissibility of the evidence, which was incompatible with the requirement of due diligence in the conduct of the proceedings. 15. On 25 January 2013 a three-judge panel of the Split County Court confirmed the indictment and referred the case to trial. 16. The criminal proceedings against the applicant are still pending. 17. On 19 May 2011 the applicant was arrested in connection with the criminal complaint lodged against him by the police (see paragraph 6 above). 18. The next day, after hearing the applicant’s defence, the State Attorney’s Office ordered that he be remanded in custody for a period of forty-eight hours. 19. Following the opening of the investigation against him, on 20 May 2011 the State Attorney’s Office asked an investigating judge (sudac istrage) of the Split County Court to order the applicant’s pre-trial detention (istražni zatvor). It also requested that the other defendants be remanded in custody. 20. On the same day the investigating judge accepted the request and ordered the applicant’s pre-trial detention for one month under Article 123 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and gravity of charges). He also ordered the pre-trial detention of nine other defendants in the proceedings. The relevant part of the decision reads: “Reasonable suspicion that the suspects committed the offences at issue follows from the criminal complaint lodged by [the police] and the [supporting material] ... The pre-trial detention of all the suspects, save for Đ.F. and N.E. who are detained in Spain, was ordered under Article 123 § 1 (2) of the Code of Criminal Procedure. The suspects Š.L. and D.J. ... are still at large and there is therefore a risk that if the other suspects were at large, they could hinder the proper conduct of the proceedings by influencing [Š.L. and D.J.]. In addition, a number of witnesses should be questioned concerning the offences at issue ... and, since they know the suspects or are relatives of theirs, there is a risk that the suspects, if at large, could hinder the proper conduct of the proceedings by influencing the witnesses ... The pre-trial detention of all the suspects was also ordered under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of the [suspects’] organisation, and the fact that they have allegedly smuggled over 700 kilograms of cocaine, 338 kilograms of which has been seized in Spain, this court finds that it suggests special circumstances justifying the fear that they may reoffend. ... The pre-trial detention of all the suspects, save for S.R., was also ordered under Article 123 § 1 (4) of the Code of Criminal Procedure. This court finds it necessary to order detention under this provision also so as to ensure the proper conduct of the proceedings, given that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, it is alleged that the suspects have smuggled over 700 kilograms of cocaine, which can be used to make a significant number of individual doses and thus to endanger the health of a high number of persons. Moreover, the suspects have allegedly operated on the territories of several countries, where they organised networks of persons helping them in the commission of the offences, which suggests a particularly organised and systemic approach in the commission of the offences. Apparently large sums of money were also spent for the [distribution and] transport of the drugs from South America. This suggests, in the view of this court, that the circumstances of the offence are particularly serious, surpassing the circumstances in which such offences are ‘usually’ committed ...” 21. The applicant challenged the decision of the investigating judge before a three-judge panel of the Split County Court, arguing that the judge had failed to take into account the extent of his specific participation in the alleged offences at issue. He pointed out that his alleged role in the commission of the offences was peripheral and irrelevant, since his only contact with the case was through the third defendant, whom he had known from the past but had not suspected of being involved in a criminal activity. The applicant also stressed that he was a self-employed car mechanic and had had no previous conflict with the law. He therefore requested that less severe preventive measures be applied for securing his proper participation in the proceedings. 22. On 6 June 2011 a three-judge panel of the Split County Court dismissed the appeals lodged by the applicant and two other defendants. The relevant part of the decision reads: “It is alleged that the suspects, acting within an organised group, obtained cocaine abroad and transported it to Croatia for the purpose of its further distribution. The proceedings at issue concern not only a serious and socially dangerous offence, but there are also other specific circumstances showing the seriousness of the case. The suspects obtained the drugs in South America, in large quantities of several hundreds of kilograms, and the whole process of transporting the drugs required a high degree of organisation and distribution of work. The quantity of drugs found, namely around 370 grams [sic] of cocaine, is higher than in other [similar cases]. The investigating judge thus correctly concluded that in respect of the suspects S.K. and Vlatko Šoš the circumstances of the offence are particularly serious, which also justifies the fear that the suspects might reoffend. There are therefore sufficient reasons for pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure. ... Furthermore, since in the further course of the proceedings, as indicated in the investigating judge’s decision, it is necessary to question a number of witnesses who have relevant knowledge of the offences at issue and know the suspects S.K., Vlatko Šoš and S.R., the investigating judge correctly ordered the detention under Article 123 § 1 (2) of the Code of Criminal Procedure. Given that the investigating judge’s decision ordering the detention is justified, there are no grounds for accepting the requests of the suspects, put forward in the appeals, to replace their detention by alternative measures.” 23. On 17 June 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and gravity of charges), reiterating his previous arguments. 24. The applicant challenged that decision,. On 7 July 2011 a three-judge panel of the Split County Court dismissed his complaints, endorsing the reasoning of the investigating judge. 25. On 18 August 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). He found that all the relevant witnesses had been questioned and that there was no further possibility of remanding the applicant in detention on the grounds of the risk of collusion. As to the other grounds relied upon for the applicant’s detention, the investigating judge reiterated his previous findings. 26. The applicant lodged an appeal against that decision before a three-judge panel of the Split County Court, arguing that his detention had been constantly extended without providing any reasons relevant to his particular situation. He also requested that his detention be replaced by house arrest. 27. On 27 September 2011 a three-judge panel of the Split County Court dismissed the applicant’s appeal, endorsing the findings of the investigating judge. It provided no reasoning concerning the applicant’s request for the replacement of his detention by house arrest. 28. On 18 October 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads: “The pre-trial detention of all the suspects was also ordered under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of the [suspects’] organisation, and the fact that they have allegedly smuggled over 700 kilograms of cocaine, 338 kilograms of which has been seized in Spain, this court finds that it suggests special circumstances justifying the fear that they may reoffend. ... The pre-trial detention of all the suspects, save for S.R., was also ordered under Article 123 § 1 (4) of the Code of Criminal Procedure. This court finds it necessary to order detention under this provision, also so as to ensure the proper conduct of the proceedings, given that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a long prison sentence has been prescribed. Specifically, it is alleged that the suspects have smuggled over 700 kilograms of cocaine, which can be used to make a significant number of individual doses and thus to endanger the health of a high number of persons. Moreover, the suspects have allegedly operated on the territories of several countries, where they organised networks of persons helping them in the commission of the offences, which suggests a particularly organised and systemic approach in the commission of the offences. Apparently large sums of money were also spent for the [distribution and] transport of the drugs from South America. This suggests, in the view of this court, that the circumstances of the offence were particularly serious, surpassing the circumstances in which such offences are ‘usually’ committed ...” 29. The applicant lodged an appeal against the above decision, asking to be released and for less severe preventive measures to be applied. On 28 October 2011 a three-judge panel of the Split County Court dismissed his appeal as ill-founded, reiterating its previous arguments and without providing further reasons for refusing the applicant’s request. 30. On 15 November 2011 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against those decisions, arguing that the reasons given for his continued detention were neither relevant nor sufficient. He pointed out that the Split County Court had collectively extended the pre-trial detention of all the defendants in the proceedings, without taking into account his specific arguments. 31. On 18 November 2011 the investigating judge extended the applicant’s pre-trial detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). In his decision, the investigating judge stated that the initial grounds for the applicant’s detention had not changed. The judge also noted that owing to the complexity of the case, the investigation would be extended for a further six months. 32. The applicant appealed against that decision, arguing that it lacked the relevant reasoning. He also asked to be released on bail or for the application of other less severe preventive measures. 33. On 6 December 2011 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments. It held that, in view of the gravity of the offences at issue, the applicant’s detention could not be replaced by less severe preventive measures, nor could he be released on bail. 34. On 9 and 16 December 2011 the applicant urged the Constitutional Court to decide on his constitutional complaint of 15 November 2011 (see paragraph 30 above). 35. On 22 December 2011 the Constitutional Court declared the applicant’s constitutional complaint of 15 November 2011 inadmissible on the ground that a new decision on his detention had been adopted in the meantime, namely on 18 November 2011 (see paragraph 31 above), and that his detention was no longer based on the impugned decision. This decision was served on the applicant’s representative on 10 January 2012. 36. On 18 January 2012 the investigating judge extended the applicant’s detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) on the ground that the relevant circumstances warranting his detention had not changed. 37. The applicant lodged an appeal against the above decision, arguing that it lacked the relevant reasoning and asking that his detention be replaced by less severe preventive measures. 38. On 31 January 2012 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments concerning the necessity of the defendants’ continued detention. 39. On 14 February 2012 the applicant lodged a constitutional complaint before the Constitutional Court, arguing that in extending his detention throughout the investigation, the court had always used the same wording and phrases. He pointed out that the Split County Court had failed to make a proper assessment of the necessity of his continued detention given that its decisions were merely a reproduction of the same wording provided in the initial decision ordering his detention on 20 May 2011. 40. On 22 February 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the Split County Court. The relevant part of the decision reads: “The impugned decision of the investigating judge ... provides detailed and clear reasoning with regard to the relevant legal circumstances related to the appellant’s [detention]. The Constitutional Court finds that the impugned decisions comply with the relevant constitutional [requirements] concerning the extension of the appellant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure.” 41. On 16 March 2012 the investigating judge extended the applicant’s detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) on the ground that nothing had changed in the relevant circumstances warranting his continued detention. 42. The applicant appealed against that decision, reiterating his request for release and the application of less severe preventive measures. 43. On 29 March 2012 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments. It found that it was not possible to release him and to apply less severe preventive measures in view of the particular gravity and seriousness of the charges against him. 44. Following the submission of the indictment against the applicant to the Split County Court (see paragraph 10 above), on 18 May 2012 a three-judge panel of that court extended the applicant’s detention pending trial under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) without setting any time-limits for the detention. The relevant part of the decision reads: “Against the defendant: ... 9. Vlatko Šoš ... the pre-trial detention is extended and it should continue further ... on the basis of Article 123 § 1 (3) and (4) of the Code of Criminal Procedure ... Statement of reasons ... Reasonable suspicion that the suspects have committed the offences at issue follows from the indictment submitted by the [State Attorney’s Office] and the evidence listed in the indictment. ... With regard to the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš the detention was extended under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of [the defendants’] organisation, and the fact that they have allegedly smuggled large quantities of cocaine for the purpose of its further distribution, 338 kilograms of which has been seized in Spain, this panel finds that it suggests special circumstances justifying the fear that they may reoffend. The detention of the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš was also extended under Article 123 § 1 (4) of the Code of Criminal Procedure. This panel finds that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, the very fact that [the case] concerns a large number of persons organised in a criminal enterprise for the purpose of trafficking large quantities of cocaine, for which purpose the defendant P.Ć. established a criminal organisation in Croatia, as well as the fact that a venture of trafficking of large quantities of the drug, such as the one smuggled by the defendants, is not undertaken by individuals who are not aware of the trafficking, suggest that the circumstances of the offence are particularly serious. The defendants are charged with acting on the basis of a prepared plan and agreement for permanently trafficking large quantities of cocaine, and in the period between January 2010 and 19 May 2011 they smuggled large quantities of [that drug] for the purpose of further distribution. The undisputed purity of the last shipment of the seized cocaine, amounting to 338.29 kilograms, means that it could have been used for making at least 3,000 doses for individual use ... which on the black market could have endangered the health of a high number of persons. These circumstances of the offence surpass the usual circumstances in which [such offences] are committed, and therefore they suggest its particular gravity.” 45. The applicant appealed to the Supreme Court (Vrhovni sud Republike Hrvatske) against the above decision, arguing that the Split County Court had failed to adduce any relevant reason warranting his continued detention. He pointed out in particular that the individual circumstances of his case had not been examined, such as the fact that he had not had any previous conflict with the law. This called into question the findings of the Split County Court that he could reoffend. He also asked that his detention be replaced by less severe preventive measures. 46. On 15 June 2012 the Supreme Court dismissed the applicant’s appeal as ill-founded, endorsing the decision of the Split County Court. It did not examine the possibility of replacing the applicant’s detention by the application of alternative preventive measures. With regard to the applicant’s specific arguments, the Supreme Court held: “The importance of the reasons making the detention under Article 123 § 1 (3) of the Code of Criminal Procedure necessary and the only appropriate measure for averting the risk of reoffending has not been called into question by the appeal arguments of the defendants S.K. and Vlatko Šoš that they did not have a criminal record. The fact that ... prior to his arrest [Vlatko Šoš] was well-known as a hardworking and decent person who was earning money by working as a car mechanic could be taken into account in the sentencing, in the event of his conviction.” 47. On 13 August 2012 a three-judge panel of the Split County Court again extended the applicant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating its previous arguments and without setting any time-limits for the applicant’s detention. It did not examine the possibility of replacing his detention by the application of less severe preventive measures. 48. The applicant challenged the decision of the Split County Court before the Supreme Court, arguing that the courts had extended his detention throughout the period of his remand by constantly repeating the same phrases and almost identical wording, and without a proper assessment of the individual circumstances of his case. He also asked that his detention be replaced by less severe preventive measures. 49. On 12 September 2012 the Supreme Court dismissed the applicant’s appeal as ill-founded on the ground that there was nothing calling into question the findings of the Split County Court concerning the necessity of his continued detention. It also stressed that, in view of the gravity of the charges and the persisting risk of reoffending, the applicant’s detention could not be replaced by less severe preventive measures. 50. On 22 October 2012 the applicant lodged a constitutional complaint against the above decision. He contended that the lower courts had constantly extended his pre-trial detention throughout the proceedings, always using the same stereotyped formulae and phrases. He considered, therefore, that they had failed to adduce any relevant and sufficient reasons for his continued detention. He pointed out the wording of the decisions extending his detention and the fact that his detention had been extended during the trial without setting any time-limits. 51. On 6 November 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. In particular it held: “The Constitutional Court finds in the case at hand that the impugned decisions were adopted on the basis of the competent courts’ careful assessment of the reasons justifying the extension of the appellant’s t issue is punishable by long-term imprisonment) and that the [competent courts] provided sufficient reasons justifying [the detention].” 52. On 9 November 2012 a three-judge panel of the Split County Court extended the applicant’s detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), without setting any time-limits for the detention. The relevant part of the decision reads: “With regard to the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš the detention was extended under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of [the defendants’] organisation, and the fact that they have allegedly smuggled large quantities of cocaine for the purpose of its further distribution, 338 kilograms of which has been seized in Spain, this panel finds that it suggests special circumstances justifying the fear that they may reoffend. The detention of the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš was also extended under Article 123 § 1 (4) of the Code of Criminal Procedure. This panel finds that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, the very fact that [the case] concerns a large number of persons organised in a criminal enterprise for the purpose of trafficking large quantities of cocaine, for which purpose the defendant P.Ć. established a criminal organisation in Croatia, as well as the fact that a venture of trafficking of large quantities of the drug, such as the one smuggled by the defendants, is not undertaken by individuals who are not aware of the trafficking, suggest that the circumstances of the offence were particularly serious. The defendants are charged with acting on the basis of a prepared plan and agreement for permanently trafficking large quantities of cocaine, and in the period between January 2010 and 19 May 2011 they smuggled large quantities of [that drug] for the purpose of further distribution. The undisputed purity of the last shipment of the seized cocaine amounting to 338.29 kilograms means that it could have been used for making at least 3,000 doses for individual use ... which, on the black market, could have endangered the health of a high number of persons. These circumstances of the offence surpass the usual circumstances in which [such offences] are committed, and therefore they suggest that the charges are particularly serious.” 53. The applicant appealed against the above decision to the Supreme Court. On 28 November 2012 the Supreme Court dismissed his appeal as ill-founded, upholding the decision of the Split County Court. 54. On 25 January 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating the wording of its previous decision and without setting any time-limits for the detention. 55. The applicant appealed against the decision on his pre-trial detention to the Supreme Court, arguing that it lacked relevant and sufficient reasons. 56. On 20 February 2013 the Supreme Court found that the applicant’s detention was to be extended only under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). It explained that the 2013 amendments to the Criminal Code provided that the offence at issue was punishable by a prison sentence of between three and fifteen years and no longer by long-term imprisonment. It was therefore not possible to remand the applicant on the grounds of the gravity of the charges since the possibility of imposing a sentence of long-term imprisonment was one of the conditions for extending pre-trial detention under Article 123 § 1 (4) of the Code of Criminal Procedure (gravity of charges). 57. On 20 April 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), relying on its previous reasoning and without setting any time-limits for the detention. 58. The applicant appealed against that decision before the Supreme Court, reiterating that his continued detention had not been based on relevant and sufficient reasons. On 24 May 2013 the Supreme Court dismissed his appeal as ill-founded. 59. Meanwhile, on 17 May 2013, following the expiry of the maximum period of the applicant’s pre-trial detention, a three-judge panel of the Split County Court exceptionally extended this maximum time-limit for his detention for a further six months, relying on section 35 of the Act on the Office for the Suppression of Corruption and Organised Crime (see paragraph 71 below). It held that the time-limit for his detention before the adoption of the first-instance judgment would expire on 19 November 2013. 60. The applicant challenged the extension of the time-limit for his pre-trial detention before the Supreme Court, arguing that such a measure was unreasonable. He pointed out that the first-instance judgment could not be adopted before 19 November 2013 given that so far only the preparatory hearing had been scheduled. The applicant also contended that the impugned decision lacked relevant and sufficient reasons warranting his continued detention on the ground of the risk of reoffending. 61. On 7 June 2013 the Supreme Court dismissed the applicant’s appeal, upholding the decision to extend the time-limit for his pre-trial detention. 62. On 2 August 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating its previous reasoning and without setting a time-limit for the detention. It also held that the applicant’s detention could not be replaced by less severe preventive measures. 63. The applicant challenged that decision before the Supreme Court,, his continued detention was unreasonable. 64. On 9 September 2013 the Supreme Court dismissed the applicant’s appeal, upholding the decision of the Split County Court. 65. On 19 November 2013 the applicant was released from detention as the maximum statutory time-limit for his detention had expired.