CASE OF HAĐI v. CROATIA
No violation of Art. 5-1;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1985 and lives in Osijek. 5. On 19 September 2007 the applicant was indicted in the Osijek Municipal Court (Općinski sud u Osijeku) on charges of aggravated larceny. On 6 December 2007 the Osijek Municipal Court appointed D. Omrčen as defence counsel for the applicant. 6. On 12 December 2007 the Osijek Municipal Court ordered the applicant's pre-trial detention in connection with the criminal proceedings instituted against him. The relevant part of the decision reads: “... the defendant Ðerđet Hađi has been charged with repeated criminal offences of aggravated larceny under Article 217 § 1(1) of the C[riminal] C[ode] which he committed on fifteen occasions between 17 December 2006 and 27 August 2007. In view of the following facts: that the defendant Ðerđet Hađi has been charged with repeated criminal offences of aggravated larceny over a period of eight months; that according to the criminal records he has already been convicted of that same offence; that before this court several sets of criminal proceedings are pending [against him on charges] of the criminal offence under Article 217 of the C[riminal] C[ode]; that he has neither income nor property – this panel finds that these circumstances justify the suspicion that he could commit the same or similar criminal offence were he to remain at large, which makes ordering his detention under Article 102 § 1(3) of the Code of Criminal Procedure justified.” 7. The applicant was arrested and remanded in custody on 14 December 2007. He lodged an appeal against the decision of 12 December 2007. On 27 December 2007 the Osijek County Court (Županijski sud u Osijeku) allowed the applicant's appeal and quashed the decision of 12 December 2007, but did not lift the applicant's detention. The operative part of this decision reads: “the appeal by the defendant Ðerđet Hađi is allowed, the first-instance decision (but not the applicant's detention) is quashed and the case is to be remitted to that court for fresh deliberation.” The relevant part of the reasoning reads: “The appeal is well-founded. The defendant's allegations that the impugned decision was adopted in breach of the provisions of criminal procedure under Article 367 § 1 in conjunction with Article 105 § 1 of the C[ode of] C[riminal] P[rocedure] are well-founded. The reasoning of the impugned decision states that the meeting, held after the indictment had been lodged, at which the panel deliberated on [the defendant's] detention, was held in the absence of D.O., the defence lawyer officially appointed for the defendant Ðerđet Hađi, in accordance with Article 105 § 2 of the CCP. However, the defendant questioned the finding of the first-instance court that defence counsel had been properly summoned to the panel meeting in question, pursuant to Article 105 § 1 of the CCP. The defendant alleged in his appeal that his officially appointed defence counsel had not been served with the decision of his appointment prior to the panel meeting of 12 December 2007 where [the panel] had been deliberating on his detention. Defence counsel had not been summoned to the panel meeting in question. The defendant maintained that the summons for the panel meeting had been sent to his defence counsel by fax on 12 December 2007 at 10.55 a.m. He enclosed a copy of the minutes of a different hearing held before the Slavonski Brod Municipal Court on 12 December 2007 in proceedings no. P-1831/00 showing that [the lawyer appointed for him] had been present at that hearing between 9.30 a.m. and 10.30. a.m. and that, therefore, since the panel meeting was held at 1 p.m., his defence counsel had not been properly summoned to that meeting. The above circumstances show that the defence lawyer was not properly summoned to the panel meeting at which the defendant's detention was deliberated upon, despite the fact that, pursuant to Article 105 § 1 of the CCP, he should have received the summons in time in order to be able to appear. Therefore, the right of the defendant to be defended by officially appointed counsel, who could only be a practising lawyer, at a panel meeting at which the decision on his detention was to be taken, and [whose absence] might influence that decision, was infringed. It is also important to point out that the facts concerning the question whether the appointed lawyer received the decision of his appointment and whether he was properly summoned to the panel meeting at which the question of the defendant's detention was to be deliberated upon could not be taken to have been correctly and sufficiently established, in view of the reasons stated above. The first-instance court must establish whether the lawyer D.O. from Osijek received, and if so, when, the decision on his appointment as defence counsel and it must then properly summon him to a fresh panel meeting where the possibility of [implementing] a custodial measure is to be deliberated. In view of the above considerations, the appeal of the defendant Ðerđet Hađi is to be allowed, the impugned decision quashed (but not the detention) and the case remitted to the first-instance court for fresh deliberation (Article 398 § 3 of the CCP).” 8. On 2 January 2008 the Osijek Municipal Court ordered the applicant's detention under Article 102 § 1(3) of the Code of Criminal Procedure. On 11 January 2008 an appeal lodged by the applicant was dismissed by the Osijek County Court. 9. On 15 January 2008 the applicant lodged a constitutional complaint against the decision of 27 December 2007, arguing that, although the decision on his detention had been quashed, his detention had not been lifted. 10. On 30 January 2008 the Osijek Municipal Court dismissed the charges against the applicant because the State Attorney had dropped the charges on the ground that there was no evidence that the applicant had committed the criminal offence in question. On the same date the same court lifted the applicant's detention and the applicant was immediately released. 11. On 18 February 2008 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant's constitutional complaint of 15 January 2008 inadmissible on the grounds that the impugned decision was no longer operative since, in the meantime, on 2 January 2008, the Osijek Municipal Court had issued a fresh decision ordering the applicant's detention. The relevant part of the decision reads: “5. ... the Constitutional Court has established that in the fresh proceedings the Osijek Municipal Court adopted a new decision no. Kv-544/07-7 (K-688/07-22) of 2 January 2008 ordering the applicant's detention. 6. Since the new decision ordered the applicant's detention and practically set aside the impugned decision, the conditions for considering the merits of the complaint had ceased to exist by the time the Constitutional Court was deciding on the applicant's constitutional complaint,.” 12. On an unspecified date the applicant brought a civil action against the State before the Osijek Municipal Court, seeking 23,500 Croatian kuna (HRK) on account of damages he had suffered owing to his “unfounded” detention. On 17 November 2008 the Municipal Court allowed the claim and granted the applicant HRK 16,400. On an unspecified date the State Attorney's Office lodged an appeal and the appeal proceedings are currently pending. 13. Section 62(1) of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads: “1. Everyone 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, which has decided on his or her rights and obligations, or on 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) ...” 14. 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, 178/2004 and 115/2006) provide as follows: “... (4) A three-judge panel of a Municipal Court adopts decisions out of a hearing.” (1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure. (2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist. (3) When deciding on detention, in particular its duration, the court shall take into consideration the proportionality between the gravity of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of detention. (4) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case detention shall immediately be lifted. “(1) Where reasonable suspicion exists that a person has committed a criminal offence, he or she may be placed in detention if: ... 3. special circumstances justify the suspicion that the person concerned might reoffend ...” “(1) Detention may be ordered only in a written decision of the competent judicial authority. ...” “... (3) After the indictment has been lodged ... the detention is ordered, extended and lifted by a judicial panel under Article 18(4) of this Code. At the hearing ... the detention is ordered, extended and lifted by a judicial panel or a single judge conducting the hearing. ...” “(1) The State Attorney and defence counsel and, if needed, also the defendant, shall be invited to the panel meeting ... at which the court decides on ordering, lifting or extending the detention ... ...” “... (2) After the indictment has been lodged ... a [judicial] panel ... shall examine every two months whether the statutory conditions for detention continue to exist ...” Article 367 paragraph 1 enlists grave breaches of the provisions of criminal procedure. “... (3) When deciding on an appeal [against a decision] a court may declare it inadmissible as being lodged out of time or as impermissible; dismiss it as unfounded; or accept it and reverse or quash it and remit the case for fresh examination. ...” “Compensation may be awarded to a person who 1. was detained but the criminal proceedings against him or her were never instituted or were terminated by a final decision; or [a person] who was acquitted by a final judgment or where the charges were dismissed by a final judgment. ...” 15. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005 and 42/2008) read as follows: “(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act. (2) The right to respect for one's personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one's name and privacy of personal and family life, freedom et alia. ...” “Damage is ... infringement of the right to respect for one's personal dignity (non-pecuniary damage).” 16. The relevant part of section 186(a) of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) reads as follows: “A person intending to bring a civil suit against the Republic of Croatia shall first submit a request for a settlement to the competent State Attorney's Office. ... Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court. ...”