CASE OF MERČEP v. CROATIA
No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1952 and lives in Zagreb. 6. On 10 December 2010 the Zagreb Police Department (Policijska Uprava Zagrebačka; hereinafter “the police”) lodged a criminal complaint with the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) against the applicant, alleging that in 1991, as commander of a police unit, he had committed war crimes against the civilian population. They relied on extensive material obtained in the course of a preliminary investigation. An investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) was also informed of the case. The case immediately attracted wide media interest and coverage. 7. On the same day, based on the criminal complaint lodged by the police, the investigating judge questioned the applicant. The applicant contested the allegations of the police and decided not to give further evidence, stressing that he was suffering from health problems. He submitted extensive medical documentation showing that he had suffered a stroke in 2007. 8. Later on the same day, the Zagreb County State Attorney’s Office requested the investigating judge to open an investigation in respect of the applicant on suspicion of war crimes against the civilian population, as alleged in the criminal complaint lodged by the police. It relied in particular on the material provided to the Croatian authorities by the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (hereinafter “the ICTY”) concerning the crimes allegedly committed by a unit under the applicant’s command. 9. Following the request of the Zagreb County State Attorney’s Office, on 13 December 2010 the investigating judge questioned the applicant. The applicant decided to remain silent and refused to give any evidence. 10. On the same day the investigating judge opened an investigation in respect of the applicant on suspicion of war crimes against the civilian population. The investigating judge found, on the basis of the available material, that there was a reasonable suspicion that in the period between October and December 1991, in his capacity as commander of a police unit, the applicant had ordered arbitrary arrests, ill-treatment and the killing of a number of civilians, and that, by not taking the necessary measures to prevent and punish those responsible, he had consented to a number of other arbitrary arrests, the unlawful confiscation of property, ill-treatment and the killing of civilians by his subordinates. 11. During the investigation the investigating judge heard evidence from thirty-one witnesses and requested international legal assistance from the Serbian authorities in obtaining evidence from the witnesses. He also obtained a number of relevant reports on the DNA analyses of the victims’ remains, as well as exhumation and autopsy reports, and various documents concerning the actions of the unit under the applicant’s command. 12. On the basis of the evidence obtained during the investigation, on 9 June 2011 the Zagreb County State Attorney’s Office indicted the applicant in the Zagreb County Court on charges of war crimes against the civilian population. The indictment listed twenty-two counts of arbitrary arrest, unlawful confiscation of property, ill-treatment and the killing of civilians. The relevant part of the indictment concerning the applicant’s participation in those acts reads: “In the period between 8 October and mid-December 1991, in Zagreb and Pakračka Poljana, during an international armed conflict between the forces of the Republic of Croatia and the former [Yugoslav People’s Army] and the paramilitary Serb forces, assisted by volunteer fighters from other parts of the former Yugoslavia, contrary to Articles 2, 3 § 1 (a) and (c), 13 and 32 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and Articles 4 §§ 4 and 2 (a), 51 §§ 2 and 6, 86 and 87 of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), as an official in the Ministry of the Interior of the Republic of Croatia and the commander of the reserve unit of the Ministry of the Interior stationed in Pakračka Poljana and partially in Zagreb, where it had its compound, and thereby authorised to command his subordinates and responsible for the application of rules of international humanitarian law concerning the protection of civilians, ordered the unlawful deprivation of liberty, torture and killing of certain civilians, and when he was not present in the field, although aware that his subordinates were acting unlawfully by arbitrarily depriving civilians of their liberty, robbing, ill-treatment, torture, causing physical harm and killing civilians, did not take the necessary measures to prevent or suppress such unlawful actions, thereby accepting that his subordinates continue with such acts and condoning their consequences ...” 13. On 28 June 2011 the applicant lodged an objection against the indictment, arguing that it was not supported by any relevant evidence. 14. On 12 September 2011 a three-judge panel of the Zagreb County Court dismissed the applicant’s objection against the indictment as ill-founded on the grounds that there was sufficient evidence supporting the conclusion that there was a reasonable suspicion that he had committed the offences for which he had been charged. 15. On 4 October 2011 the Zagreb County Court commissioned an expert report concerning the possibility of the applicant following the trial. 16. In a report of 14 December 2011 a court expert found that with the appropriate accommodation arrangements and medical supervision, the applicant could follow the trial. 17. In the further course of the proceedings a number of hearings were held before the Zagreb County Court. A hearing held on 29 March 2012 was adjourned to 2 April 2012 due to deterioration in the applicant’s health during the questioning of a witness. A hearing held on 15 June 2012 was also adjourned due to the applicant’s state of health. 18. The criminal proceedings against the applicant are still pending. 19. The applicant was arrested on 10 December 2010 in connection with the criminal complaint lodged against him by the police (see paragraph 6 above). 20. On the same day, having questioned the applicant (see paragraph 7 above), the investigating judge of the Zagreb County Court ordered his remand in custody for a further forty-eight hours on the grounds that he might try to influence the witnesses and on account of the gravity of the charges. The investigating judge noted in particular that some forty-three witnesses needed to be questioned and that the allegations of war crimes against the civilian population imputed to the applicant were of a particularly serious nature, involving killings and severe ill-treatment. 21. On the order of the investigating judge and because of the applicant’s medical condition (see paragraph 7 above), he was placed in a prison hospital. Later during his confinement he was also treated in a special rehabilitation hospital in Krapinske Toplice. 22. On 12 December 2010 the investigating judge ordered that the applicant be remanded in custody for a further day. 23. On 13 December 2010 the investigating judge ordered the applicant’s pre-trial detention for one month under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges), reiterating his previous arguments. 24. The applicant appealed against the decision of the investigating judge before a three-judge panel of the Zagreb County Court, invoking his state of health and arguing that twenty years had passed since the alleged crimes had taken place. 25. On 17 December 2010 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal as unfounded. The relevant part of the decision reads: “It is firstly to be noted that in connection with the offences imputed to the defendant, in particular concerning the acts of the reserve [police] forces under his command, the questioning of a number of victims and witnesses, who have the relevant knowledge about the events from the period at issue, has been requested. Irrespective of the time that has passed since the period at issue, the defendant, who has only recently been informed of the facts of the offences forming the charges against him, if at large is likely to try to contact the [following] witnesses ... [These witnesses] still feel distress and fear and [the defendant could], in order to minimise his criminal responsibility, directly or indirectly influence their statements and thereby hinder the proper course of the investigation. Therefore, in order to avert the collusion, the investigating judge properly ordered the defendant’s pre-trial detention under Article 102 § 1 (2) of the Code of Criminal Procedure. Furthermore, in view of the manner in which the war crimes against the civilian population under Article 120 of the Criminal Code were allegedly committed by the defendant, and which are punishable by twenty years’ imprisonment, the investigating judge correctly found that the circumstances of the offences were particularly grave, warranting pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure. These particularly grave circumstances of the offences concern, in the view of this panel, the manner in which the civilians ... were unlawfully and arbitrarily deprived of their liberty, how their property was confiscated without any legal basis, how they were physically and mentally ill-treated (often by the use of electric shocks) and eventually killed; and the fact that some of these unlawful acts were committed on the basis of the defendant’s orders, while the others he did not prevent although he was aware of them ...” 26. On 5 January 2011 the investigating judge extended the applicant’s detention for a further two months under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He found that some more witnesses needed to be questioned and reiterated his previous findings concerning the gravity of the charges against the applicant. 27. The applicant appealed against that decision and on 14 January 2011 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, reiterating its previous arguments. 28. The investigating judge extended the applicant’s detention on 9 March 2011 for a further two months, relying on Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He found that eight witnesses still needed to be questioned and that the arguments concerning the gravity of the charges were still valid. 29. The applicant appealed against that decision, reiterating his previous arguments, and on 18 March 2011 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, relying on the same grounds as those in its previous decisions. 30. On 9 May 2011 the investigating judge extended the applicant’s detention for a further month under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges), reiterating his previous arguments concerning the gravity of the charges and finding that five more witnesses needed to be questioned. 31. The applicant appealed against that decision and on 27 May 2011 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, noting in particular that, in view of the gravity of the charges imputed to the applicant and given that he had been detained for some six months, there was still a predominant interest in keeping him in detention. It also considered that he should be remanded in custody until all the witnesses had been questioned. 32. Following the submission of the indictment against the applicant to the Zagreb County Court (see paragraph 12 above), on 10 June 2011 a three-judge panel of that court extended the applicant’s detention pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads: “When assessing whether further extension of the detention is needed under Article 102 § 1 (4) of the Code of Criminal Procedure, the panel looked into the facts of the indictment and found that there was a reasonable suspicion that the accused Tomislav Merčep, in the period between 8 October 1991 and mid-December 1991, as an official and the commander of the reserve unit of the Ministry of the Interior of the Republic of Croatia, authorised to command his subordinates, ordered the unlawful deprivation of liberty, torture and killing of certain civilians. When he was not present in the field, although aware that his subordinates were acting unlawfully by arbitrarily depriving civilians of their liberty, robbing, ill-treatment, torture, causing physical harm and killing civilians, he did not take the necessary measures to prevent and suppress such unlawful actions, therefore accepting that his subordinates continue with such acts and condoning their consequences. ... Furthermore, the perpetrators – members of the accused’s unit – took money and valuables from their victims (cars, jewellery, household appliances etc.) and subsequently exposed them to brutal torture, such as electric shocks through an induction telephone, cutting open muscles and wiring open wounds, severe beatings, physical ill-treatment, degrading treatment and locking them in rooms without beds or toilets. In addition, the charges against the accused also concern an incident in which members of the unit under his command killed a twelve year-old girl A.Z. by firing six bullets into her head, together with her mother M., both of whom had been taken away after her father, M.Z., had been killed in their doorway in Z. Consequently, and bearing in mind the extent of the unlawful actions which there is a reasonable suspicion that the accused committed and in particular the number of victims, which was, according to the facts of the indictment, more than twenty, all of them civilians, who were brutally tortured, robbed and killed or who have disappeared, the panel finds that the perpetrator acted with extreme cruelty, brutality, persistence and an extraordinary degree of criminal intent. All of the above-mentioned circumstances, in the opinion of this panel, represent particularly grave circumstances that overcome the usually grave circumstances pertinent to such offences. Therefore, the detention is necessary under Article 102 § 1 (4) of the Code of Criminal Procedure ...” 33. The applicant appealed against that decision to the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the necessity of his detention and alleging a number of substantive and procedural flaws. 34. On 6 July 2011 the Supreme Court dismissed the applicant’s appeal, upholding the decision of the Zagreb County Court. The Supreme Court in particular noted: “... the finding of the first-instance court that the grounds for further detention of the accused under Article 102 § 1 (4) of the Code of Criminal Procedure still exist is correct. The indictment shows a relevant degree of reasonable suspicion that the accused committed the criminal offence under Article 120 § 1 of the Criminal Code, by which the general statutory condition under Article 102 § 1 of the Code of Criminal Procedure has been fulfilled. ... According to the indictment ... the behaviour of the accused, in the view of this second-instance court, significantly surpasses the ordinary circumstances and consequences of such offences, and represents particularly grave circumstances of the offence allegedly committed by the accused which warrant detention under Article 102 § 1(4) of the Code of Criminal Procedure. In his appeal, the accused alleged that there had been a serious breach of criminal procedure, without specifying his argument. In this regard, the second-instance court was unable to find breaches that should have been examined ex officio. The appeal argument of errors of facts is also unfounded, since the first-instance court fully determined the facts and gave detailed, valid and clear reasons for its findings, which this second-instance court fully accepts. The accused also relied on the case-law of the Constitutional Court in its decision U-III-1683/2008 of 7 May 2008 and Article 5 § 1 [of the Convention], arguing that deprivation of liberty before a final judgment is a particularly sensitive issue, and that such detention should not turn into a prison sentence. Thus, [according to the accused] it can be ordered only when there is a high probability that guilt will be established and a sentence imposed, in cases where there is a reasonable suspicion that the accused has committed a criminal offence and only for the purposes of the proper conduct of the proceedings, conditions which had not been met in the case at issue. Contrary to the appeal arguments, the extension of detention under Article 102 § 1 (4) of the Code of Criminal Procedure is not contrary to the Constitution or Article 5 of the European Convention on Human Rights. Detention under Article 102 § 1 (4) of the Code of Criminal Procedure has a preventive purpose, namely the deprivation of liberty of the perpetrators of such serious crimes that, if they would be at large, the reputation of the judiciary and the public’s faith in it would be diminished; its purpose is not to avert the risk of the proceedings being hindered. ... The poor state of health of the accused does not call into question the reasonableness of his detention, since adequate medical care, bearing in mind that he suffers from a chronic disease, can be offered to him in detention, that is to say in the prison hospital.” 35. The applicant challenged the decision of the Supreme Court before the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that the Supreme Court had failed to provide relevant and sufficient reasons for his prolonged pre-trial detention. 36. On 30 August 2011 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the decisions of the Zagreb County Court and the Supreme Court. The relevant part of the decision reads: “In view of the competence of the Supreme Court as the highest court ensuring the coherent application of the law and the equality of everyone in its application (Article 116 § 1 of the Constitution), the likelihood of a prison sentence within the given term and the particularly grave circumstances of the offence, the Constitutional Court finds that the Supreme Court and the Zagreb County Court satisfied the relevant opinions and requirements when extending the pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure ...” 37. On 6 September 2011 a three-judge panel of the Zagreb County Court extended the applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 38. The applicant appealed against that 39. On 28 November 2011 a three-judge panel of the Zagreb County Court extended the applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) on the grounds that the reasons warranting his detention still persisted. 40. The applicant appealed against that decision and on 14 December 2011 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Zagreb County Court. 41. The applicant’s detention was further extended on 14 February 2012 by a decision of a three-judge panel of the Zagreb County Court, relying on Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) and reiterating its previous arguments. 42. The applicant challenged that decision before the Supreme Court and on 29 February 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that no doubts had been raised as to the findings of the Zagreb County Court. 43. The applicant then lodged a constitutional complaint before the Constitutional Court, arguing that his detention was no longer justified and proportionate. 44. On 18 April 2012 the Constitutional Court dismissed the applicant’’s state of health, when deciding whether his pre-trial detention should be extended. 45. On 27 April 2012 a three-judge panel of the Zagreb County Court extended the applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), finding that the circumstances warranting his detention still persisted. With regard to the applicant’s state of health, it indicated that so far, nothing suggested that he could not receive appropriate medical treatment in detention. 46. The applicant appealed to the Supreme Court alleging lack of appropriate reasoning in the decision of the Zagreb County Court to extend his pre-trial detention. 47. On 21 May 2012 the Supreme Court accepted the applicant’s appeal and remitted the case to the Zagreb County Court on the grounds that it had not established all the relevant facts concerning the health care provided to the applicant in detention. 48. In compliance with the order of the Supreme Court, a three-judge panel of the Zagreb County Court re-examined the case. On 29 May 2012 it extended the applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). With regard to the applicant’s state of health, it noted that he was receiving appropriate medical treatment in detention. 49. The applicant challenged that decision before the Supreme Court. On 29 June 2012 the Supreme Court accepted his appeal and remitted the case for re-examination on the grounds that the decision of the Zagreb County Court lacked relevant reasoning. 50. On 5 July 2012 a three-judge panel of the Zagreb County Court revoked the decision on the applicant’ the quality of the medical treatment which he was receiving in detention was not adequate. Since that could raise an issue under Article 3 of the Convention, the Zagreb County Court considered that he should be released pending trial. It stressed in particular: “Thus, in the concrete case priority should be given to the values protected by Article 3 of the European Convention on Human Rights because the public interest is reflected not only in the grounds for detention under Article 102 § 1 (4) of the Code of Criminal Procedure but also in the protection and application of the values provided for under the cited provision of the European Convention on Human Rights. In this respect, the time that has elapsed since according to the indictment the offence was committed should be noted, and in particular the period which the accused has spent in detention, as well as the likely duration of the criminal proceedings.”