CASE OF KURALIĆ v. CROATIA
Remainder inadmissible;No violation of Art. 6-1;No violation of Art. 6-3
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
4. The applicant was born in 1957 and is at present serving a twelve-year sentence in Lepoglava State Prison. 5. On 15 September 2002 the Dubrovnik Police Station received an anonymous telephone call from a man who reported the disappearance of his neighbour D.K., the applicant's wife, since 31 August 2002. On 16 September 2002 the police carried out an in situ inspection of the flat and the adjacent premises where D.K. had lived and collected samples of bloodstains and other biological particles found there. DNA testing on the bloodstains carried out on 28 January 2003 showed that these samples belonged to the victim, the applicant and another male person. Meanwhile, on 28 October 2002 a Dubrovnik County Court investigating judge issued a warrant for the search of the applicant's flat in order to identify possible objects connected with a criminal offence which was not specified. The search was carried out by the police on 28 October 2002 but no items of interest were found. 6. On 24 April 2004 at 6 a.m. the applicant was arrested by the police and placed in police custody on suspicion of murdering his wife (D.K.) in Dubrovnik at the end of August 2002 and disposing of her body at the garbage disposal tip near the town of Dubrovnik. He was first interviewed by the police. The applicant's statement to the police in which he confessed to murdering his wife was subsequently excluded from the case file as inadmissible evidence on the ground that he had not been legally represented. 7. At 1.35 p.m. the same day, the applicant was brought by the police officer who had previously interviewed him before an investigating judge of the Dubrovnik County Court (istražni sudac Županijskog suda u Dubrovniku) and was questioned in the presence of a Dubrovnik County Deputy State Attorney. The written transcript of the interview shows that the applicant had been warned about his right to remain silent and to be legally represented. After replying that he had understood the warnings, he chose to defend himself in person. He then stated that he was “not experiencing any mental crisis, that he was aware of everything that he was saying and that the police officers had treated him correctly” and then denied that he had murdered his wife but instead stated that he had found her dead and then disposed of her body out of fear that he would be accused of her murder. The applicant also stated that he had been listening to the judge's dictation for the official record and that his words had been faithfully conveyed, adding that he had no objections as to the content of the written transcript, which he duly signed. The applicant was then placed in pre-trial detention where he remained until his conviction. The parties agree that upon his arrival he was seen by a doctor and that no injuries were recorded. 8. On 26 April 2004 an investigation was opened against the applicant in the Dubrovnik County Court on a suspicion that he had murdered his wife, D.K. and on the same day a lawyer, M.K., was officially appointed to assist the applicant. On 28 April 2004 the defence counsel appealed against the decision to open an investigation, arguing that there had been no relevant evidence that the applicant had murdered D.K. On 28 April 2004 the appeal was dismissed by a three-judge panel of Dubrovnik County Court. 9. On 30 April 2004 the investigating judge heard evidence from three witnesses in the presence of the applicant's counsel. On 18 May 2004 the applicant's pre-trial detention was extended by the Dubrovnik County Court. The applicant's counsel lodged an appeal which was dismissed by the Supreme Court on 26 May 2006. 10. Meanwhile, on 25 May 2004 the same investigating judge again interviewed the applicant, this time in the presence of his officially appointed defence counsel. The applicant was warned that he had the right to remain silent. However, he repeated his previous statement and added some details as to how he had disposed of his wife's dead body. He signed the written transcript of the interview. 11. On 8 June 2004 a confrontation between the applicant and a witness was organised before the investigating judge, in the presence of the applicant's officially appointed counsel. The applicant stated that on the critical occasion he had twice hit his wife. He also stated that he had asked the witness present to help him dispose of his wife's dead body. However, he denied that he had killed her. 12. On 27 July 2004 the applicant informed the Dubrovnik County Court that he was represented by two defence counsel of his own choosing. Consequently, in a decision of 27 July 2004 the officially appointed defence counsel was relieved of his duties. 13. On 6 October 2004 the applicant sent a letter to the Dubrovnik County Court investigating judge, withdrawing the previous confessions he had made before that judge. He alleged that during his interview by the police on 24 April 2004 he had confessed to having murdered his wife because he had been threatened and beaten by four police officers. They had punched him in the stomach, ears and head and slapped him several times. He named one of the officers. They had, he alleged, also threatened him with further beatings if he retracted his confession before the investigating judge. For fear of further beatings, he had made a statement on two occasions before the investigating judge in which he had confessed to having disposed of the dead body of his wife, even though that was not true. 14. On 11 October 2004 the investigating judge excluded, inter alia, the transcript of the applicant's interview by the police from the case file. 15. On 15 October 2004 the Dubrovnik County State Attorney's Office (Županijsko državno odvjetništvo Dubrovnik) filed a bill of indictment against the applicant in the Dubrovnik County Court, charging him with the murder of his wife at the end of August 2002, and the applicant was thus committed to stand trial. 16. During the trial proceedings the applicant, represented by two lawyers of his own choosing, decided to remain silent. The Dubrovnik County Court trial panel heard evidence from witnesses, including O.M., in the presence of the applicant and his counsel, obtained forensic and other relevant reports and in its judgment of 16 February 2005 found the applicant guilty as charged and sentenced him to twelve years' imprisonment. The findings as to the applicant's guilt relied on the statements of the applicant given by him before the investigating judge on two occasions as well as on the other evidence such as a DNA analysis of the bloodstains found in the applicant's home and hearsay evidence given by one of the witnesses. The relevant part of the judgment reads as follows: “The defendant's confession during the investigation and the evidence given by witnesses O.M. and M.A. indicate that one evening at the end of August 2002 the police arrived at the applicant's flat on account of the fact that music was being played too loud, while the fact that D.K. had actually died was twice confirmed by the defendant during the investigation. Furthermore, the witness O.M. said that the defendant had told him that he had killed his wife and asked him to help him transport her dead body to Zaton in order to throw it into the sea. A careful analysis of the defendant's statements given on two occasions during the investigation and of all other evidence presented at the hearing led this court to conclude that the defendant had acted as described in the operative part of this judgment and that all the statutory elements of the crime in question, in both its objective and subjective aspects, had thus been fulfilled. During the investigation, the defendant, as mentioned above, twice confirmed the death of his wife, whose body has never been found. ... ... [witness] O.M., who has no sensible motive for laying any blame on the defendant, has, during the entire proceedings, expressly stated that the defendant, the day after the critical day at the end of August 2002, had ... told him as follows: 'After you had left that night, I killed her.' And when [O.M.] had asked 'Whom?', the defendant had answered 'D.' and had asked him to transport her dead body with his car to Zaton in order for the defendant to throw it into the sea, which the witness had refused. ... ... [during] an in situ inspection of the [defendant's] flat traces of her [the defendant's wife] bloodstains were found ...” 17. The applicant and his counsel both appealed against the judgment. In his personal appeal the applicant complained, inter alia, of the fact that the judgment relied on the statements given by him before the investigating judge even though he had subsequently retracted them and had informed the investigating judge that he had given these statements under duress. His lawyers had moreover appealed on the same basis. In a judgment of 8 February 2006 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the applicant's conviction. The relevant part of the judgment reads as follows: “.. the fact that D.K. had died was twice confirmed by the defendant in the statements given by him during the investigation. He described in detail how he had disposed of the dead body of his wife D, and the first-instance court correctly accepted this part of the statement while at the same time dismissing the part of his statement in which he denied murdering his wife. In this connection the defendant's allegations that his statements during the investigation had been given as a result of the threats and beatings by the police and that he had told the investigating judge what the police had instructed him to say are unfounded. No basis for such allegations can be found in the evidence or the case file. On the contrary, when first questioned by the investigating judge the defendant expressly stated that he was not in a state of mental crisis, that he was aware of what he was saying and that the police officers of the Dubrovnik Police Department had treated him correctly.” 18. The subsequent constitutional complaint lodged by the applicant was dismissed by the Constitutional Court on 9 October 2007. 19. The relevant part of the Code of Criminal Procedure (Official Gazette nos. 62/2003 – Zakon o kaznenom postupku) provides as follows: “... (3) Where not otherwise provided by law, the State Attorney shall bring a criminal prosecution where there is a founded suspicion that an identified individual has committed a criminal offence liable to official prosecution and where there are no statutory obstacles for prosecution of that person.” “(1) All State bodies and all legal entities are obliged to report criminal offences liable to official prosecution, whether they have been informed thereof or have learned about such offences on their own. ...” “(1) A criminal complaint shall be lodged with a competent State Attorney in writing or orally. ... (3) Where a criminal complaint has been lodged with a court, a police force or a State Attorney lacking competence, they shall receive the complaint and immediately forward it to the competent State Attorney.”