CASE OF SUPUT v. CROATIA
No violation of Art. 5-3
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen
4. The applicant was born in 1971 and lives in Korenica. 5. In July 2005 the police, at the request of the State Attorney, commenced an inquiry into allegations that during 1991, at the beginning of the Homeland War in Croatia, a large number of civilians were tortured and killed or detained in Korenica, Croatia by members of the so-called “Krajina Autonomous Region Militia” (Milicija “Autonomne Oblasti Krajina”), where they were allegedly tortured and some of them killed. A large number of survivors and other individuals who witnessed these events were interviewed by the police. A voluminous case file was produced and the inquiry resulted in the supposed perpetrators being identified, among whom was the applicant. 6. The applicant was arrested on 4 December 2006 on suspicion that he had committed war crimes against the civilian population and prisoners of war. On the same day the investigation judge of the Gospić County Court (istražni sudac Županijskog suda u Gospiću) heard evidence from the applicant in the presence of a defence counsel. The applicant denied the charges. On the same day the investigation judge heard evidence from two other suspects. 7. On 5 December 2006 an investigation was opened in respect of the applicant and two other suspects in the Gospić County Court in connection with suspected war crimes against the civilian population and prisoners of war in 1991 in Korenica, Croatia. 8. On 7 and 11 December 2006 the police interviewed two newly discovered potential witnesses. 9. On 14 December 2006 the investigation judge requested a report from the Korenica Social Welfare Centre (Centar za socijalnu skrb Korenica) on the suspects’ personal circumstances. On the same day the investigation judge scheduled a hearing, with an identification parade, for 21 December 2006, and ordered the Gospić Police Station to ensure the presence of twelve other individuals of an appropriate age and physical appearance at the identification parade. 10. At a hearing held on 21 December 2006 the investigation judge heard evidence from nine witnesses and held an identification parade. Two of the witnesses were asked to identify the applicant and both of them recognised the applicant as a person named Željko Šuput who they alleged had ill-treated prisoners in Korenica in 1991. 11. On the same day the Gospić State Attorney’s Office asked for evidence from eighteen witnesses to be heard by the investigation judge. 12. On 27 December 2006 the Korenica Social Welfare Centre submitted their report to the Gospić County Court on the applicant’s personal circumstances. The report stated that the applicant and his family, who had left Croatia during the Homeland War, had returned to Croatia in 2001 and since then had lived in their own house in Korenica. Before his arrest the applicant had been employed as a driver in Rijeka, Croatia. On the same day the Ministry of Justice informed the Gospić County Court that the applicant had been fined twice for minor offences related to road safety and customs regulations. He had no criminal record. 13. On 3 and 17 January 2007 the investigation judge heard evidence from four and fifteen witnesses respectively. A voluminous case file was compiled containing evidence from witnesses and a large amount of documentary evidence. 14. On 31 January 2007 the applicant and another defendant were indicted before the Gospić County Court for war crimes against prisoners of war, an offence under section 122 of the Croatian Criminal Code. The applicant was accused of inflicting exceptionally brutal treatment on prisoners of war on several occasions, consisting of beatings with wooden rods and chains, kicking, administering electric shocks, death threats and forcing schoolchildren to urinate on the prisoners. 15. On 15 February 2007 the applicant lodged an objection to the indictment (prigovor protiv optužnice). His co-defendant also lodged an objection. 16. On 1 March 2007 the President of the Gospić County Court asked the Supreme Court to transfer jurisdiction to another court. This was refused on 8 March 2007. 17. On 19 March 2007 the objections to the indictment were dismissed by the Gospić County Court and the indictment became final. 18. On 4 April 2007 the President of the Gospić County Court again asked the Supreme Court to transfer jurisdiction to another court. On 26 April 2007 the Supreme Court transferred jurisdiction to the Rijeka County Court (Županijski sud u Rijeci) and the proceedings continued before that court. 19. A hearing scheduled for 12 July 2007 was adjourned owing to the absence of the parties. 20. On 18 July 2007 the applicant appointed new counsel, who asked the County Court to adjourn the trial in order to allow him sufficient time to consult the case file and prepare the applicant’s defence. For that reason on 20 July 2007 the Rijeka County Court adjourned the hearings already scheduled for 24, 25, 26 and 27 July 2007. The hearings were scheduled for 3, 4, 5 and 6 September 2007. 21. At a hearing held on 3 September 2007 the County Court dismissed a number of procedural objections put forward by the defence and heard evidence from one witness. A hearing scheduled for 4 September 2007 was adjourned because the defence counsel of both defendants refused to continue to represent them. On 5 September 2007 the County Court appointed legal-aid counsel for the applicant. On 7 September 2007 the appointed counsel asked to be relieved of his duties. On 10 September 2007 the County Court accepted this request and on 12 September 2007 it appointed new legal-aid counsel for the applicant. On 21 September 2007 that lawyer also sought to be relieved of her duties. On 25 September 2007 the County Court refused this request. On 10 and 11 October counsel again sought to be relieved of her duties, on different grounds from those given in her previous request. This request was accepted on 11 October 2007 and on 15 October 2007 new legal-aid defence counsel was appointed. 22. A hearing scheduled for 22 October 2007 was adjourned because the applicant’s counsel did not appear. A hearing scheduled for 10 December 2007 was adjourned because the case file had been forwarded to the Supreme Court upon the applicant’s appeal against a decision extending his detention (see below, § 39). 23. At a hearing held on 8 January 2008 the County Court heard evidence from eight witnesses, on 9 January 2008 three witnesses and on 10 January 2008 also three witnesses. On the latter date the County Court commissioned an expert report from a medical expert. On 3 March 2008 the expert submitted her report. 24. At a hearing held on 10 March 2008 the County Court heard evidence from the medical expert and at a hearing held on 11 March 2008 it heard evidence from seven witnesses. 25. A hearing scheduled for 8 May 2008 was adjourned on account of the applicant’s inability to attend owing to his post-surgery state of health (see below, §§ 60 and 61). 26. At a hearing held on 30 June 2008 the Rijeka County Court heard the applicant’s evidence as to his health and decided to commission a report by a medical expert concerning the applicant’s health. The report was submitted on 14 July 2008. The expert stated that the applicant’s health was not incompatible with his ability to attend and follow the criminal trial against him (see below, § 63). 27. At a hearing held on 16 September 2008 the records of the identification parade (see above, § 10) were read and three witnesses gave evidence. 28. At a hearing held on 19 September 2008 the Rijeka County Court decided on a number of procedural objections put forward by the defence. At a hearing on 2 October 2008 two witnesses and both defendants gave evidence and the parties gave their closing arguments. 29. On 3 October 2008 the Rijeka County Court found the applicant guilty of war crimes against prisoners of war and sentenced him to four years’ imprisonment. At the same time it lifted the applicant’s detention. 30. On 11 and 19 February 2009 respectively the applicant and the other defendant lodged their appeals. The appeal proceedings are currently pending before the Supreme Court. 31. On 4 December 2006 the investigation judge of the Gospić County Court remanded the applicant in custody for forty-eight hours. On the same day the investigation judge heard evidence from the applicant in the presence of a defence counsel. The applicant denied the charges against him. On the same day the investigation judge heard evidence from two other suspects. 32. On 5 December 2006 the investigation judge remanded the applicant in custody for one month on the grounds that there was a danger of absconding and that the offences allegedly committed by the applicant were serious ones. The relevant part of the decision reads: “This court finds that the grounds for detention under Article 102 § 1(1 and 4) of the Code of Criminal Procedure apply ... The case file shows that the first, second and third suspects lived in Serbia for a long time and therefore the circumstances indicated a danger of absconding because they might leave the territory of Croatia and thus impede the conduct of these criminal proceedings. Also, what is at issue is a crime against humanity and international law – a war crime against prisoners of war, liable to twenty years’ imprisonment, which was committed under particularly grave circumstances shown by a reasonable suspicion that the suspects brutally tortured the prisoners, and the injuries thus inflicted caused grave bodily impairments to the majority of the victims, resulting in their permanent grave disability.” This decision was upheld by a three-judge panel of the Gospić County Court on 13 December 2006 which endorsed the reasoning of the investigation judge. 33. On 3 January 2007 the investigation judge extended the applicant’s detention for a further two months on the same grounds as before. The applicant did not lodge an appeal. 34. On 14 February 2007 a three-judge panel of the Gospić County Court extended the applicant’s detention on the same grounds (danger of absconding and gravity of offences). This decision was upheld by the Supreme Court on 26 February 2007. The relevant part of the decision reads: “This court finds that the fact that the defendants lived abroad for a long time and are charged with a grave criminal offence liable to a lengthy prison term show that if released, they might abscond. Thus, the extension of their detention on the ground under Article 102 § 1(1) of the Code of Criminal Procedure is justified. The Supreme Court ... accepts the first-instance court’s findings that the conduct of the defendants amounted to an offence committed under particularly grave circumstances, which necessitate their further detention on the ground under Article 102 § 1(4) of the Code of Criminal Procedure. The defendants are charged with particularly brutal conduct consisting of beatings with wooden sticks, rods and chains, administering electric shocks, throwing cold water over and psychologically torturing war prisoners N.N., M.L. and P.B. on many occasions in cells, halls and the courtyard of the building where they were detained, which caused grave bodily injuries to the victims.” 35. On 12 April 2007 the Gospić County Court extended the applicant’s detention on the same grounds. 36. On 7 May 2007 the Supreme Court quashed the decision of 12 April 2007 on formal grounds, namely the absence of the applicant’s defence counsel from a panel meeting concerning his detention. 37. On 11 May 2007 the Gospić County Court extended the applicant’s detention on the same grounds. The applicant did not lodge an appeal. 38. On 12 July and 19 September 2007 the Rijeka County Court extended the applicant’s detention on the same grounds. The applicant did not lodge appeals. 39. On 23 November 2007 the Rijeka County Court extended the applicant’s detention solely on account of the gravity of the offences. The relevant part of the decision reads: “This panel finds that the grounds for detention under Article 102 § 1(4) of the Code of Criminal Procedure in respect of the first defendant Željko Šuput still apply on account of the manner in which he had allegedly committed the criminal offences held against him. The factual basis of the criminal offence shows exceptional cruelty and brutality which, in the opinion of this panel, represent an offence committed under exceptionally grave circumstances and that therefore detention is necessary under Article 102 § 1(4) of the Code of Criminal Procedure. The record of the hearing held on 3 September 2007 shows that the first defendant Željko Šuput is a citizen of Croatia, that he was employed as a driver before his arrest, that he owns half a house in Korenica, and that he is married and the father of two children. These circumstances show that he has a connection with the Republic of Croatia and that, despite these criminal proceedings and a risk of imprisonment, the grounds for detention under Article 102 § 1(1) of the Code of Criminal Procedure have not been fulfilled, namely that there are no circumstances indicating a danger of absconding.” On 10 December 2007 the Supreme Court upheld this decision, endorsing the County Court’s reasons. The applicant lodged a constitutional complaint. 40. On 29 January 2008 the applicant asked for his detention to be lifted. 41. On 8 February 2008 the Rijeka County Court dismissed the applicant’s request and extended the applicant’s detention on account of the gravity of the charges. On 27 February 2008 the Supreme Court upheld this decision, endorsing the County Court’s reasoning. 42. At the hearing held on 11 March 2008 the applicant’s counsel asked for the detention to be lifted on the ground that he needed medical assistance outside prison, including surgery on his spine. The Rijeka County Court dismissed the request, finding that it was premature, since no surgery had yet been performed on the applicant. On 29 March 2008 the applicant was admitted to Zagreb Prison Hospital (Bolnica za osobe lišene slobode, “the ZPH”). On 9 April 2008 he was transferred to a civil hospital, where surgery on his spine was carried out on 14 April 2008. 43. On 15 April 2008 the applicant again asked for his detention to be lifted on health grounds. This was refused by the Rijeka County Court on 25 May 2008 and the applicant’s detention was extended for a further two months. The relevant part of that decision reads as follows: “This court finds that the ground for ordering the applicant’s detention under Article 102 paragraph 1(4) of the Code of Criminal Procedure still exists because of ... a suspicion that in the period between 15 October 1991 and the end of April 1992 the first defendant, Željko Šuput, as a member of the intervention brigade of the Militia of the so-called Krajina Autonomous Region, on several occasions brutally ill-treated prisoners of war in the cells, corridor and courtyard of the Korenica Militia building by beating them with wooden sticks, rods and chains, kicking them and administering electric shocks until they lost consciousness. These circumstances indicate utterly cruel and inhuman treatment of the prisoners of war, which significantly exceeded the basic features of the crime in question ... which represent an offence committed under particularly grave circumstances, which clearly warrant that the defendant remain in custody on the grounds under Article 102 paragraph 1(4) of the Code of Criminal Procedure.” 44. As to the applicant’s request that his detention be lifted, the County Court held: “This court finds the first defendant’s request for his detention to be lifted unfounded. The purpose of placing the first defendant Željko Šuput in Zagreb Prison Hospital is precisely to be able to administer adequate medical care appropriate to his needs and state of health. [The Hospital] is able to provide continuous monitoring and urgent medical interventions. There it is possible to administer the medical assistance the defendant needs, identical to that which he would receive in any other situation, irrespective of whether or not he is in detention.” This decision was upheld by the Supreme Court on 21 May 2008. The relevant part of the decision reads: “... the finding of the first-instance court that the ground for further detention of the defendant Željko Šuput under 102 paragraph 1(4) of the Code of Criminal Procedure still applied is correct. The indictment shows a relevant degree of reasonable suspicion that the defendant Željko Šuput committed the criminal offence under Article 122 of the Criminal Code, by which a general statutory condition under Article 102 paragraph 1 of the Code of Criminal Procedure for extending detention has been fulfilled. The factual background of the indictment shows that the defendant Željko Šuput, in his capacity as a member of the intervention squad of the so-called Krajina A[utonomous] R[egion] Militia, in the period from 15 October 1991 to the end of April 1992, together with other members of that militia, on many occasions, in cells, hall and courtyard of the building [where they were detained] kicked prisoners and beat them with wooden sticks, rods and chains on the head and body and administered electric shocks until they lost consciousness, all of which resulted in numerous and grave injuries. The above-described manner in which the offences were committed shows an exceptionally high degree of brutality, ruthlessness, unscrupulousness and cruelty, which surpasses by far the usual manner of committing such crimes and represents an offence committed under particularly grave circumstances which necessitates the defendants’ remaining in custody under Article 102 paragraph 1(4) of the Code of Criminal Procedure, as correctly found and explained by the first-instance court in the decision referred to. The defendant’s arguments that there was no proof that he had committed the criminal offences at issue are not decisive for deciding on his further detention, because for such a decision the relevant degree of reasonable suspicion suffices, and that suspicion is shown in the indictment. In considering [the reasons for] detention, this panel does not assess evidence and its probative value – that assessment is made by the trial court at the end of the trial. Contrary to the allegations of the appeal, the extension of his detention on the grounds under Article 102 paragraph 1(4) of the Code of Criminal Procedure contravenes neither the Croatian Constitution nor the Convention. Unlike the aim of the grounds for detention under Article 102 paragraph 1(1,2 and 3) of the Code of Criminal Procedure, the aim of the ground for detention under Article 102 paragraph 1(4) of the Code of Criminal Procedure is not to remove threats to the efficient and unobstructed conduct of the criminal proceedings but is preventive, intended to prevent the release of individuals who have committed criminal offences such that their release would diminish the reputation of and trust in the justice system by the public. Article 5 of the Convention gives only examples of the grounds for detention (exempli gratia) and these grounds are not exclusive (numerus clausus). Therefore, Article 102 paragraph 1(4) does not contravene the said provision of the Convention. Other security measures under Article 90 of the Code of Criminal Procedure, in view of their essence and character, could not fulfil the same purpose as detention. The applicant’s needs as regards medical care may be satisfied with medical treatment in prison, in view of the nature of his illness, and exceptionally by out-patient treatment.” 45. On 27 May 2008 the applicant again asked for his detention to be lifted on health grounds. 46. On 29 May 2008 the Constitutional Court declared the applicant’s constitutional complaint against the Supreme Court’s decision of 10 December 2007 inadmissible on the grounds that meanwhile a fresh decision extending the applicant’s detention had been adopted by the Rijeka County Court on 8 February 2008 and that therefore the original decision was no longer in effect. 47. On 10 June 2008 the applicant’s request of 27 May 2008 was dismissed by the Rijeka County Court on the grounds that the applicant’s health did not require treatment outside prison. The relevant part of the decision reads: “As regards the health of the first defendant Željko Šuput ... this panel finds that for now the treatment it requires is not incompatible with his detention. The medical documentation of 29 May 2007 shows that a haematoma which developed ... in the brain, is slowly diminishing. The neurosurgeons did not recommend surgery but only further supervision and rest. The next examination ... is scheduled for the end of June. His health is expected to become stable.” 48. On 18 July 2008 the Rijeka County Court extended the applicant’s detention on the grounds of the gravity of the charges. 49. On 3 October 2008, after finding the applicant guilty of war crimes against prisoners of war, the Rijeka County Court lifted his detention. The applicant was released the same day. A security measure of withdrawal of his passport and prohibition on leaving his place of residence was applied. The relevant part of the decision lifting the applicant’s detention reads: “ ... there is no ground for further detention of the defendant because the same purpose may be achieved by the use of a preventive measure of prohibition on leaving his place of residence and obligation to report periodically to the Korenica Police Station as well as temporary seizure of his passport.” 50. The applicant’s medical record shows that before his arrest he was suffering from discopathy of the lumbar spinal area. 51. He was seen by the prison doctor on 10 August 2007 for severe pain in the lumbar area of the spine and the left leg. He was diagnosed with lumboischialgia (chronic neck pain), and prescribed painkillers and rest. At his next examination on 27 August 2007 the doctor noted that the pain was decreasing and the same therapy was prescribed. On further examinations by the prison doctor on 30 August, 18, 19, 20, 21 24 and 28 September 2007 it was noted that the applicant was still suffering pain and he was prescribed various painkillers. 52. On 3 October 2007 the doctor recommended that the applicant be seen by an orthopedic specialist. On 10 October 2007 the applicant stated that he wanted to see a specialist at his own expense at a hospital of his choice. On 11 October 2007 a trial judge in the applicant’s case before the Rijeka County Court allowed the request and a visit to a clinic was scheduled for 16 October 2007. 53. At the beginning of November 2007 the applicant was sent for an Xray examination of his spine. 54. On 21 January 2008 the applicant asked permission to undergo a computer tomography of his spine in a private clinic. The request was allowed on 21 January 2008 by the trial judge and the visit to the clinic was scheduled for 25 January 2008. 55. On 8 February 2008 the trial judge allowed the applicant a specialist examination at the expense of the Rijeka County Court. 56. On 11 February 2008 the trial judge allowed the applicant’s treatment in the Zagreb Prison Hospital (ZPH) at the expense of the Rijeka County Court. The applicant stayed in the ZPH from 22 February to 6 March 2002. He was diagnosed with disc protrusion and surgery on his spine was scheduled for 28 March 2008. 57. On 10 March 2008 the Rijeka Prison doctor submitted a report on the applicant’s health to the Rijeka County Court. She stated that he was suffering from disc protrusion and that surgery was scheduled for 2 April 2008 at a civilian hospital - the Dubrava Hospital in Zagreb (Klinički bolnički centar Dubrava). She further noted that he had been taking painkillers for a long time and recommended that he rest every hour because he was not able to sit for a long period in the same position. 58. At a hearing held in the Rijeka County Court on 10 March 2008 an independent medical expert recommended that a fifteen-minute break be taken every hour during the hearing on account of the applicant’s health problems. 59. On 26 March 2008 the trial judge allowed the applicant’s hospitalisation in the Dubrava Hospital in Zagreb for him to undergo surgery on his spine on 1 April 2008. 60. On 29 March 2008 the applicant was admitted to the ZPH. On 9 April 2008 he was transferred to Dubrava Hospital where he underwent surgery on his spine on 14 April 2008. On 17 April he was returned to the ZPH. 61. After the surgery the applicant developed a haematoma in the cerebellum. He underwent physiotherapy. A number of laboratory tests were carried out as well as several brain nuclear magnetic resonances, computer tomography of his spine and head, X-ray of his mouth cavity and electrocardiography. He was seen by an oral surgeon, neurologist, physiologist, ophthalmologist and a psychologist. A neurosurgeon examined him on 19 and 23 May 10 and 11 June 2008. 62. On 27 June 2008 he was returned to Rijeka Prison. 63. At a hearing held on 30 June 2008 in the Rijeka County Court, the trial judge asked for an opinion from a medical expert. On 14 July 2008 an independent medical expert, who saw the applicant on 10 July 2008, submitted his opinion, stating that the applicant’s health was not incompatible with his ability to attend and follow the criminal trial against him. He further recommended a brain examination at the end of July or beginning of August, an examination by a neurosurgeon and physiotherapy. 64. Section 122 of the Basic Criminal Code (Osnovni krivični zakon, Official Gazette no. 31/1993) reads as follows: Whoever, in violation of the rules of international law, orders the killing, torture or inhuman treatment of prisoners of war, including biological, medical or other scientific experiments, the removal of tissue or organs for transplantation, or the causing of great suffering or injury to their physical integrity or health; or compels a prisoner of war to serve in the forces of a hostile power, or deprives a prisoner of war of the right to a fair trial; or commits any of the foregoing acts, shall be sentenced to not less than five years’ imprisonment or up to twenty years’ imprisonment. 65. The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides as follows: “(1) Where the conditions for ordering detention under Article 102 of this Code have been fulfilled, and where the same purpose may be achieved by other preventive measures under this Article, the court shall order that one or more preventive measures are to be applied ... (2) Preventive measures are: 1) prohibition on leaving one’s place of residence; 2) prohibition on being in a certain place or area; 3) obligation on the defendant to report periodically to a certain person or a State body; 4) prohibition on access to a certain person or on establishing or maintaining contact with a certain person; 5) prohibition on undertaking a certain business activity; 6) temporary seizure of a passport or other document necessary for crossing the State border; 7) temporary seizure of a driving licence. ...” “(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, a 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) Judicial authorities conducting criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review ex officio whether the grounds and legal conditions for detention have ceased to exist, in which case detention shall immediately be lifted.” “(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention: 1. where there are circumstances which show that there is a risk hat [the defendant] will abscond [is in hiding or his or her identity cannot be established etc.); ... 4. where the charges relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, or where detention is justified by the modus operandi or other especially grave circumstances of the offence.” 66. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows: “(1) Inmates shall have the right to complain about an act or decision of a prison employee. (2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open ...” “(1) Inmates shall be provided with medical treatment and proper care of their physical and mental health...” “... (2) A doctor shall examine a sick or injured inmate ... and undertake all measures necessary to prevent or cure the illness and to prevent deterioration of the inmate’s health.” “(1) An inmate has the right to seek a specialist examination if such an examination has not been ordered by a prison doctor. ...” ... (2) Temporary release may be allowed on the following grounds: 1) to an inmate suffering from a serious acute illness or whose chronic illness worsens and where his or her medical treatment is not possible in prison. ...”