CASE OF DRAGIN v. CROATIA
No violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1968 and lives in Matulji. 6. On 8 October 2008 the applicant was arrested on suspicion of incitement to aggravated murder in that he, together with another person, had incited a person who had owed them money to kill their competitors in the security business in Rijeka, and that for that purpose they had obtained machine guns and explosive devices. 7. An investigation in respect of the applicant was opened in the Rijeka County Court (Županijski sud u Rijeci) on 10 October 2008. 8. On the same day an investigating judge of the Rijeka County Court remanded the applicant in custody under Article 102 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and seriousness of charges). The judge held that there was a risk that the applicant might suborn several witnesses who were to be questioned during the investigation, and that his clear determination to commit the offence at issue and its possible consequences justified his detention on the grounds of risk of reoffending and the seriousness of the charges. 9. The applicant’s detention was extended on 7 November 2008 under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges). The investigating judge found that the witnesses had already been questioned and that therefore there was no reason to remand the applicant in custody on the grounds of risk of collusion. However, the judge reiterated that the applicant’s clear determination to commit the offence and its possible consequences warranted the applicant’s detention on the grounds of risk of reoffending and the seriousness of the charges. 10. On 14 November 2008 the investigation in respect of the applicant was expanded to the offences of unlawful possession of firearms and explosives. 11. The investigating judge extended the applicant’s detention on 5 December 2008 under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges) using the same reasons as in his previous decision. 12. The applicant appealed on 11 December 2008, arguing that the reasons put forward by the investigating judge were not convincing justifications for his detention. 13. On 17 December 2008 a three-judge panel of the Rijeka County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the investigating judge. 14. On 31 December 2008 the Rijeka County State Attorney’s Office (Županijsko državni odvjetništvo u Rijeci) indicted the applicant in the Rijeka County Court on charges of incitement to aggravated murder and unlawful possession of firearms and explosives. Another individual, I.F., was also indicted in the same proceedings on charges of incitement to aggravated murder. Later, on 23 January 2009, criminal proceedings against another person, V.V., on charges of trafficking in firearms were joined to the proceedings against the applicant and I.F. in the Rijeka County Court. 15. A three-judge panel of the Rijeka County Court extended the applicant’s detention on 7 January 2009, relying on Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges). The relevant part of the decision reads: “There is a reasonable suspicion that the accused have committed the offences at issue. The fact that the second accused, Robert Dragin, in an agreement with the first accused, I.F., twice went to the Republic of Bosnia and Herzegovina in order to find a machine gun and an explosive device suggest determination to commit the offences they are suspected of, and the fact that a larger quantity of unlawful weapons and explosive devices have been found in the possession of the second accused, Robert Dragin, suggest that they might reoffend ... The fact that the offence of [aggravated murder] was planned to take place in Rijeka city centre near the M. bar, where a lot of young people gather, suggests to this panel that the circumstances of the offence are particularly serious ... “ 16. On 12 January 2009 the applicant lodged an appeal against the above decision with the Supreme Court (Vrhovni sud Republike Hrvatske) arguing that the alleged offences at issue had never even been attempted and thus there was nothing which suggested that he might reoffend or that there were particularly serious circumstances warranting his detention. 17. The Supreme Court allowed the applicant’s appeal and on 4 February 2009 reversed the decision of the Rijeka County Court by ordering the applicant’s detention only under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). It held that the applicant’s alleged determination to commit the offences suggested that he might reoffend but that the reasons put forward by the Rijeka County Court as to the seriousness of the charges were not relevant, because all the circumstances referred to were essentially subsumed under the risk of reoffending. It also explained that the reference to the possibility that the offence of aggravated murder would be committed in a public place was irrelevant, because the offence had never been attempted, let alone executed. 18. On 24 February 2009 a three-judge panel of the Rijeka County Court returned the indictment to the Rijeka County State Attorney’s Office and ordered it to conduct a further investigation, as not all the relevant circumstances had been established. 19. During the resumed investigation, on 3 April 2009 the investigating judge of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating that his determination to commit the offences suggested that he might reoffend. 20. On 6 April 2009 the applicant appealed against the above decision, reiterating his previous arguments. 21. The applicant’s detention was further extended by a three-judge panel of the Rijeka County Court on 8 April 2009 under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) relying on the alleged determination on the applicant’s part to commit the crime, and on , which suggested that the applicant might reoffend if at liberty. 22. On 10 April 2009 a three-judge panel of the Rijeka County Court dismissed the applicant’s appeal of 6 April 2009 (see paragraph 20 above) as ill-founded. 23. On 14 April 2009 the applicant lodged an appeal against the remand in custody of 8 April 2009 (see paragraph 21 above) arguing, inter alia, that it was impossible in practice for him to reoffend, because the alleged incitement to murder was in respect of a person who later became a protected witness and was at present cooperating with the prosecuting authorities. 24. On 13 May 2009 the Supreme Court dismissed the applicant’s appeal as ill-founded, noting: “The circumstances suggesting that the accused I.F. and Robert Dragin [might reoffend] can be observed from the indictment by which they are charged with having, for the purpose of obtaining material benefit and with reprehensible motives, incited a person who owed them money to kill others who were competitors in the security business in Rijeka, and that for that purpose they had obtained machine guns and explosive devices with a remote detonator and 238 grams of plastic explosive, which they intended to plant under the vehicle of one of the putative victims. All these circumstances show particular determination on the part of the accused. Therefore, the Supreme Court, as the second-instance court, considers that they should be remanded in custody under Article 102 § 1 (3) of the Code of Criminal Procedure in order to prevent them from continuing with such activity. that they were determined to commit a murder, that argument is of no relevance. Furthermore, both accused submitted numerous complaints concerning the conduct of the proceedings, to which they wrongly attached great significance, arguing that the first-instance court had failed to follow the instruction to return the indictment to the State Attorney’s Office for a further investigation, and that consequently the investigation was never completed, while the maximum period of detention during the investigation had expired. The case file shows that the accused were arrested on 8 October 2008 ... and that by extending their detention on 8 April 2009, after the investigating judge had returned the case file to the State Attorney’s Office and the latter had submitted it to a three-judge panel [of the Rijeka County Court], the time-limit under Article 106 § 3 of the Code of Criminal Procedure had not expired. In these circumstances, and given that this court, when deciding on the appeal against the decision to extend the detention, cannot go into all the complaints submitted in the appeal, all such complaints are ill-founded ... “ 25. A three-judge panel of the Rijeka County Court on 13 July 2009 extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), holding as follows: “The accused are charged with developing a detailed plan to commit the offence of incitement to aggravated murder under Article 91(4) and (6) in conjunction with Article 37 of the Criminal Code; it was planned that the murder would be committed by another person, who owed them money. The first accused, I.F., had arranged the purchase of the firearms and explosives and the second accused, Robert Dragin, had travelled twice to Bosnia and Herzegovina to bring them to Croatia, after which he had passed them to the other person, instructing him how to use them and telling him the time and place the killing was to take place. Then he [together with the other person] damaged the vehicle which one of the victims should have driven, to ensure that the victim would use a car under which an explosive device had been planted. This court finds that the said circumstances show particular determination on the part of the accused, and suggest that the first accused I.F. and the second accused Robert Dragin might reoffend if at liberty, and therefore their detention is necessary under Article 102 § 1 (3) of the Code of Criminal Procedure.” 26. On 16 July 2009 the applicant lodged an appeal with the Supreme Court against the above decision, arguing that it was impossible in practice for him to reoffend as suggested in the reasoning of the Rijeka County Court. 27. The Supreme Court dismissed the applicant’s appeal on 10 August 2009 as ill-founded, reiterating its previous arguments. 28. On 9 October 2009 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating its previous reasoning. 29. The first hearing before the Rijeka County Court was held on 19 and 20 October 2009; the applicant and the other accused pleaded not guilty. The trial court questioned three witnesses and adjourned the hearing. 30. A further hearing was held on 30 November 2009; the trial court heard evidence from three witnesses. 31. On 30 December 2009 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating the reasoning from its previous decisions. 32. At a hearing on 21 January 2010 the trial court examined the evidence from the case file and adjourned the hearing. Another hearing was scheduled for 4 March 2010, but was adjourned because the case file was at the Supreme Court. 33. At a hearing on 15 March 2010 three expert witnesses gave oral evidence. 34. On 22 March 2010 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). The relevant part of the decision reads: “The accused are charged with developing a detailed plan to commit the offence of incitement to aggravated murder under Article 91(4) and (6) in conjunction with Article 37 of the Criminal Code; it was intended that the murder should be committed by another person, who owed them money. The first accused, I.F., had arranged the purchase of the firearms and explosives and the second accused, Robert Dragin, had travelled twice to Bosnia and Herzegovina to bring them to Croatia, after which he passed them to the other person, instructing him how to use them and telling him the time and place the killing was to take place. Then he [together with the other person] damaged the vehicle which one of the putative victims was supposed to drive in order to ensure that the victim would use a car under which an explosive device had been planted. The period of the alleged criminal activity and the planning of the offences, including the incitement and instructions given to Č.Đ., show a keen determination on the part of the accused to commit the offences, which suggests that the first accused I.F. and the second accused Robert Dragin might reoffend if at liberty, and therefore their detention under Article 102 § 1 (3) of the Code of Criminal Procedure is necessary.” 35. Further hearings were held between 12 and 14 April 2010, at which the trial court heard evidence from four witnesses and one expert witness. 36. Hearings were also held on 3 and 21 May 2010, at which the trial court questioned three witnesses and the third accused, V.V. 37. On 31 May 2010 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions. 38. At a hearing on 4 June 2010 the trial court heard evidence from one witness and the parties made their closing arguments. 39. On 8 June 2010 the Rijeka County Court found the applicant guilty on charges of incitement to aggravated murder and unlawful possession of firearms and explosives, and sentenced him to six years and three months’ imprisonment. 40. The applicant appealed to the Supreme Court against the first-instance judgment on 1 and 8 August 2010. He argued that the judgment had numerous substantive and procedural flaws. 41. On 10 May 2011 the Supreme Court quashed the first-instance judgment of the Rijeka County Court and ordered a retrial on the grounds of procedural errors in the way in which the evidence was taken during the trial. 42. The Supreme Court remanded the applicant in custody under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) referring to his determination to commit the offences and the circumstances in which the offences were allegedly committed. 43. On 8 July 2011 a three-judge panel of the Rijeka County Court extended the applicant’s pre-trial detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) relying on the same reasons provided in its previous decisions. 44. The applicant’s detention was further extended by a three-judge panel of the Rijeka County Court on 14 September 2011 under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions. 45. A hearing scheduled for 14 September 2011 was adjourned because the third accused failed to appear for health reasons. 46. On the same day the Rijeka County State Attorney’s Office asked the Supreme Court to extend the maximum period allowed for the applicant’s detention, relying on Article 109 § 3 of the Code of Criminal Procedure. It reiterated that the applicant should be remanded in custody on the grounds of risk of reoffending. 47. On 19 September 2011 the applicant lodged an appeal against the decision on his detention of 14 September 2011 (see paragraph 44 above), which the Supreme Court dismissed as ill-founded on 26 September 2011. 48. The Supreme Court on 26 September 2011 ordered the Rijeka County Court to examine the request of the Rijeka State Attorney’s Office of 14 September 2011 (see paragraph 46 above) on the grounds that the applicant’s detention should first be extended under Article 109 § 2 of the Code of Criminal Procedure and only after the time-limit under that provision expired should it be extended under § 3 of the same Article. 49. On 7 October 2011 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 109 § 2 of the Code of Criminal Procedure for a further nine months. The relevant part of the decision reads: “The accused, Robert Dragin, has been in custody since 8 October 2008. His detention was extended by a decision of this court ... on 14 September 2011 under Article 102 § 1 (3) of the Code of Criminal Procedure, while his appeal was dismissed by a decision of the Supreme Court ... of 26 September 2011. Therefore, in view of the fact that on 8 October 2011 the period of his detention will amount to three years, which under Article 109 § 1 (5) of the Code of Criminal Procedure is the maximum period of detention, and that the non-final judgment of this court ... of 8 June 2010 was quashed by the decision of the Supreme Court ... of 10 May 2011, [this panel] needs to examine whether his pre-trial detention should be extended under Article 109 § 2 of the Code of Criminal Procedure ... This panel finds that the detention of the accused, Robert Dragin, should be extended for one-quarter [of the general maximum period of detention], that is to say nine months. ... in view of the gravity of the offences the accused is suspected of, and the prescribed sentence, [this panel], under Article 109 § 2 in conjunction with Article 109 § 1 (5) of the Code of Criminal Procedure, extends the overall period of detention for one-quarter [of the general maximum period of detention], that is to say nine months, which should be sufficient to complete the proceedings.” 50. On 14 October 2011 the applicant lodged an appeal with the Supreme Court, arguing that Article 109 § 2 of the Code of Criminal Procedure was inapplicable in his case, since it concerned situations where an appeal against a first-instance judgment by which an accused had been found guilty was pending before the appeal court. In his case, however, the first-instance judgment had been quashed. He also contended that the extension of the time-limits for pre-trial detention was an exceptional measure applicable only where the trial court, even with maximum diligence, was unable to terminate the proceedings in time as a result of objective impediments. In his case, he saw no such circumstances and pointed out that the Rijeka County Court had provided no reasons in that respect. 51. On 25 October 2011 the Supreme Court dismissed the applicant’s appeal. The relevant part of the decision reads: “This court finds that Article 109 of the Code of Criminal Procedure allows the court, in situations where the first-instance judgment and the second-instance judgment which quashed it have been adopted within the [general] time-limit provided for in Article 109 § 1, to extend the detention first under Article 109 § 2 and then under Article 109 § 3. In such cases, the period of detention under Article 109 § 3 should be extended only when the period of detention under Article 109 § 2 has expired, irrespective of whether the judgment has been upheld in the retrial or not. Therefore, the Supreme Court considers that, contrary to the arguments in the appeal, the first-instance court lawfully and correctly extended the overall period of detention of the accused, Robert Dragin, for a quarter [of the general maximum period of detention], that is to say nine months, under Article 109 § 2 of the Code of Criminal Procedure.” 52. A hearing scheduled for 26 October 2011 was adjourned because the defence of the first accused sought the withdrawal of members of the trial panel and the prosecution, and also of the President of the Rijeka County Court. These requests were dismissed as ill-founded on 9 and 29 November 2011. 53. On 27 November 2011 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) about the decisions on his detention reiterating the complaints that he raised before the Supreme Court. 54. On 22 December 2011 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. 55. On 22 December 2011 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions. 56. The applicant lodged an appeal against the above decision on 30 December 2011, arguing that there were no relevant or sufficient reasons for his continued detention. 57. The Supreme Court dismissed the applicant’s appeal as ill-founded on 11 January 2012, endorsing the reasoning of the Rijeka County Court. 58. A hearing scheduled for 31 January 2012 was adjourned because one of the defence lawyers was on sick leave. 59. A three-judge panel further extended the applicant’s detention on 9 March 2012 under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions. 60. A hearing scheduled for 14 March 2012 was adjourned because the applicant’s defence sought the withdrawal of members of the prosecution team, on the grounds that they had abused their powers in dealing with his case. 61. On 14 March 2012 the applicant appealed against the decision on his detention of 9 March 2012 (see paragraph 59 above) reiterating his previous arguments. 62. Between 21 and 23 March 2012 the applicant’s request for the withdrawal of the prosecution team members was dismissed as ill-founded. 63. The Supreme Court allowed the applicant’s appeal against the decision on his detention (see paragraph 61 above) and on 23 March 2012 quashed the decision of the Rijeka County Court on the grounds that a member of the three-judge panel had previously been excluded from the case. It ordered the Rijeka County Court to re-examine the case speedily. 64. On 2 April 2012 a three-judge panel of the Rijeka County Court, this time in a different composition, extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating the reasons in its previous decisions. 65. On 10 April 2012 the applicant lodged an appeal with the Supreme Court which was dismissed on 20 April 2012 as ill-founded. 66. A hearing scheduled for 21 May 2012 was adjourned because the first accused was ill. 67. On 20 June 2012 a three-judge panel again extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions. 68. On 26 June 2012 the applicant lodged an appeal with the Supreme Court, arguing that ever since the first-instance judgment had been quashed there had been no activity in the proceedings. He also pointed out that, in view of the overall length of his detention and the first-instance court’s lack of diligence in its conduct of the proceedings, his detention had become a prison sentence. Therefore, it was disproportionate to its purpose. 69. On 29 June 2012 the Rijeka County State Attorney’s Office, relying on Article 109 § 3 of the Code of Criminal Procedure, asked the Supreme Court to extend further the maximum period of the applicant’s detention already extended under Article 109 § 2 of the Code of Criminal Procedure (see paragraph 51 above). 70. On 6 July 2012 the Supreme Court allowed the request and extended the applicant’s detention for a further year. The relevant part of the decision reads: “Since all [permissible] time-limits for detention under Article 109 §§ 1 (5) and 2 of the Code of Criminal Procedure have been exhausted, the conditions have been met to extend the detention of the accused, Robert Dragin, under Article 109 § 3 of the Code of Criminal Procedure. Since the proceedings at issue are now before the first-instance court, it is reasonable to expect that in order to conclude the proceedings the detention should be extended for the maximum period of a further year.” 71. On the same day the Supreme Court dismissed the applicant’s appeal against the decision on his detention of 20 June 2012 (see paragraphs 67 and 68 above) as ill-founded. 72. On 12 August 2012 the applicant lodged a constitutional complaint with the Constitutional Court, reiterating his previous arguments. He pointed out in particular that his detention could not be extended cumulatively under Article 109 §§ 2 and 3 of the Code of Criminal Procedure, since those provisions concerned two different situations. In any event, it was only possible to extend the detention for the maximum period in exceptional circumstances, which did not exist in his case. He also argued that the trial court had not conducted his case with due diligence. 73. On 31 August 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the Supreme Court. 74. A three-judge panel of the Rijeka County Court extended the applicant’s detention on 6 September 2012, under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating its previous arguments. 75. On 13 September 2012 the applicant lodged an appeal with the Supreme Court, reiterating his previous arguments, particularly lack of due diligence in the conduct of the proceedings. 76. Another hearing, scheduled for 25 September 2012, was adjourned because the first accused was ill. 77. On 3 October 2012 the Supreme Court allowed the applicant’s appeal of 13 September 2012 (see paragraph 75 above) and ordered his release from detention. The Supreme Court noted that the applicant had been detained since 8 October 2008 and that ever since the first-instance judgment had been quashed no hearing had been held in the proceedings at issue, and it was uncertain when a hearing would be held. It therefore considered that the applicant should be released in order to prevent the pre-trial detention from becoming a prison sentence. 78. The criminal proceedings against the applicant are still pending.