CASE OF KRASNIQI v. CROATIA
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
5. The applicant was born in 1959 and lives in Sisak, Croatia. 6. The Novska Police authority lodged a criminal complaint against the applicant with the Sisak County State Attorney’s Office on 30 December 1991, alleging that he had committed four murders. The applicant was arrested on 6 January 1992 and placed in pre-trial detention. 7. By a judgment of 5 October 1992 the Zagreb Military Court acquitted the applicant and he was released. On 7 July 1993, however, the Supreme Court quashed the first-instance judgment and ordered a retrial. 8. On 2 April 1998 the Sisak County State Attorney’s Office indicted the applicant in the Sisak County Court on four counts of murder. The applicant was tried in his absence because his whereabouts were unknown to the authorities. On 25 March 1999 he was found guilty of all four counts of murder and sentenced to twenty years’ imprisonment. This judgment was upheld by the Supreme Court on 14 January 2003, likewise in the absence of the applicant. 9. An international arrest warrant was issued in respect of the applicant. He was arrested in Germany on 8 April 2006, extradited to Croatia on 1 February 2007 and was placed in pre-trial detention in Croatia on that date. 10. On 21 February 2007 the criminal proceedings against the applicant were reopened. 11. On 1 March 2007 the Sisak County Court ordered the applicant’s pre-trial detention under Article 102 § 1(1) and (4) of the Code of Criminal Procedure. The applicant’s pre-trial detention was regularly extended on the same grounds. 12. The Sisak County Court confirmed its previous verdict on 7 May 2008, sentencing the applicant to twenty years’ imprisonment. On the same date it extended the applicant’s detention until 1 June 2009 or until the judgment entered into force. 13. The applicant lodged an appeal against the decision extending his detention. It was dismissed by the Supreme Court on 25 August 2008. 14. The first-instance judgment was upheld by the Supreme Court on 3 December 2008 in its capacity as an appeal court. On 17 March 2009 the applicant lodged a further appeal with the Supreme Court, in its capacity as a court of third instance. 15. On 20 March 2009 the applicant lodged with the Sisak County Court an application for the detention order against him to be lifted. He argued that the maximum statutory detention period where an appellate judgment had been adopted and against which an appeal was allowed was three months. That period had expired on 3 March 2009. He therefore asked for his release. On 27 March 2009 the Sisak County Court dismissed the complaint without addressing the issue raised by the applicant. 16. The applicant’s subsequent constitutional complaint of 27 April 2009 was declared inadmissible on 26 May 2009 on the grounds that the impugned decision was not an act within the meaning of section 62 of the Constitutional Court Act. This decision was served on the applicant on 23 June 2009. 17. In the meantime, on 1 June 2009 the Sisak County Court extended the applicant’s detention under Article 109 § 3 of the Code of Criminal Procedure for a further nine months, i.e. until 1 March 2010. On 12 June 2009 the applicant lodged an appeal, arguing that the maximum period for which he could be detained had expired. This appeal was dismissed by the Supreme Court on 22 July 2009. The relevant part of that decision reads: “The Supreme Court, as the court of second instance, considers that the first-instance court correctly established that in the present case the conditions for the extension of the overall detention of the accused, Zenel Krasniqi, under Article 109 § 2 of the Code of Criminal Procedure had been satisfied, and thus extended his overall detention for a further nine months. In a non-final judgment of the Sisak County Court of 7 May 2008 ... the accused Zenel Krasniqi was found guilty ... and sentenced to twenty years’ imprisonment. That judgment ... was upheld by a judgment of the Supreme Court on 3 December 2008 ... against which the accused lodged an appeal. In view of the sentence given, the detention of the accused is obligatory under Article 102 § 4 of the Code of Criminal Procedure. The accused was in detention between 6 January and 5 October 1992 (nine months) and also since 1 March 2007, so that the maximum period of detention [applicable to him], being three years under Article 109 § 1(5) of the Code of Criminal Procedure, was set to expire on 1 June 2009. Since the accused was, inter alia, convicted of the criminal offence of aggravated murder ... [which is] punishable by twenty years’ imprisonment, a court may, under Article 109 § 2 of the Code of Criminal Procedure, extend his overall detention for one quarter [of the term referred to in subparagraphs 4 and 5 of paragraph 1 of Article 109 of the Code of Criminal Procedure], that is to say for a further nine months. Therefore, the Supreme Court finds that the extension of the accused’s detention for a further nine months by the first-instance court was well founded and lawful ... ... The accused’s submissions based on Article 109 § 4 of the Code of Criminal Procedure in which he argued that his detention had to be lifted because more than three months had passed since the second-instance judgment was adopted are also unfounded. The Supreme Court considers that where, as in the present case, a first-instance judgment and a second-instance judgment against which an appeal is allowed have been adopted within the time-limit for detention under Article 109 § 1 of the Code of Criminal Procedure, the overall duration of detention may be extended under Article 109 § 2 of the Code of Criminal Procedure, and after that time-limit expires, it may still be extended under Article 109 § 4 of the Code of Criminal Procedure.” 18. The applicant then lodged a constitutional complaint, whereby he reiterated the arguments from his appeal as regards the issue of the lawfulness of his detention. On 16 September 2009 the Constitutional Court dismissed the complaint, endorsing the reasoning of the Supreme Court. 19. On 22 October 2009 the Supreme Court in its capacity as a court of third instance upheld the applicant’s conviction. Thus it became final and enforceable. 20. 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) provide as follows: “(1) Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of: 1. six months for offences carrying a statutory maximum sentence of three years’ imprisonment; 2. one year for offences carrying a statutory maximum sentence of five years’ imprisonment; 3. eighteen months for offences carrying a statutory maximum sentence of eight years’ imprisonment; 4. two years for offences carrying a sentence of more than eight years’ imprisonment; 5. three years for offences carrying a sentence of long-term imprisonment. (2) In cases where a judgment has been adopted but has not yet entered into force, the maximum term of pre-trial detention may be extended for one sixth of the term referred to in subparagraphs 1 to 3 of paragraph 1 of this provision until the judgment becomes final, and for one quarter of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision. (3) Where a first-instance judgment has been quashed on appeal, following an application by the State Attorney and where important reasons exist, the Supreme Court may extend the term of detention referred to in subparagraphs 1 to 3 of paragraph 1 of this provision for another six months and the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision for another year. (4) Following the adoption of an appellate judgment against which an appeal is allowed, detention may last until the judgment becomes final, for a maximum period of three months. (5) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is committed to prison, but for no longer than the duration of his prison term.” 21. The relevant part of the guidelines adopted at a meeting of the Criminal Division of the Supreme Court on 23 March 2006 and published by the Supreme Court, reads: “... Where a first-instance judgment and a second-instance decision quashing the first-instance judgment were adopted within the time prescribed for detention under Article 109 § 1 of the CPP, the overall duration of detention may be extended under Article 109 § 2 of the CPP and after the expiry of that period also under Article 109 § 3 of the CPP. The overall duration of detention under Article 109 § 3 of the CPP is to be extended only after the time-limit prescribed in Article 109 § 2 of the CPP has expired, irrespective of whether the first-instance court has adopted a fresh judgment in the retrial proceedings. The maximum period of detention where a judgment has been adopted but has not yet become enforceable is to be fixed according to the criminal offence the accused was found guilty of, even where the State Attorney has filed an appeal on any grounds. Where a first-instance judgment or a second-instance judgment against which an appeal is allowed have been adopted within the time-limits set by Article 109 § 1 of the CPP, the overall duration of detention may be extended under Article 109 § 2 of the CPP. After the time-limit set by that Article expires, detention may be extended under Article 109 § 4 of the CPP. Where a first-instance judgment or a second-instance judgment against which an appeal is allowed have been adopted within the time-limits set by Article 109 § 2 of the CPP, the overall duration of detention may be extended under Article 109 § 2 of the CPP. After the time-limit set by that Article expires, detention may be extended under Article 109 § 4 of the CPP, after the expiration of the time-limit under Article 109 § 2 of the CPP. Where a second-instance decision against which an appeal is allowed has been adopted within the time-limit set by Article 109 § 3 of the CPP, the overall duration of detention may be extended under Article 109 § 4 of the CPP, after the expiration of the time-limit set by Article 109 § 3 of the CPP. Where a second-instance decision against which an appeal is allowed has been quashed within the time-limit set by Article 109 § 1 of the CPP, the overall duration of detention may be extended under Article 109 § 2 of the CPP, after the expiration of the time-limit set by Article 109 § 3 of the CPP. Where a second-instance decision against which an appeal is allowed has been quashed within the time-limit set by Article 109 § 2 of the CPP, the overall duration of detention may be extended under Article 109 § 3 of the CPP. ...” 22. The Supreme Court’s practice as regards the interpretation of Article 109 of the Code of Criminal Procedure may be found in its case-law. It’s decision no. II 5 Kr 5/04-2 of 28 April 2004 reads in its relevant part as follows: “... the Supreme Court has established that the accused, M.M., has been detained since 3 October 2003 on the basis of Article 102 § 1(3) of the Code of Criminal procedure (“CPP”) and that the maximum period of detention under Article 109 § 1(1) of the CPP expired on 3 April 2004. Since the appeal decision quashing [the first-instance judgment] was adopted on 23 April 2004, the detention during the appeal proceedings from the adoption of the first-instance judgment on 26 March 2004 was based on the time-limits set by Article 109 § 2 of the CPP. Therefore, the statutory requirements for extending the accused’s detention for a further six months under Article 109 § 3 of the CPP have been satisfied ...” The relevant part of decision no. II 5 Kr 8/07-2 of 23 November 2007 reads: “The accused, V.D., has been detained since 27 February 2004 and the maximum period of detention under Article 109 § 1(1) and § 2 of the Code of Criminal Procedure (“CPP”) expires on 27 November 2007. The criminal proceedings are currently pending at third instance. The first-instance judgment of the Vukovar County Court was quashed by this court. After that, a fresh first-instance judgment was adopted, which was upheld by a judgment of the Supreme Court of 27 September 2007 ... by which the accused was sentenced to long-term imprisonment for forty years on account of two criminal offences of aggravated murder ... Under Article 109 § 1(1) and § 2 of the CPP, the maximum period of detention is three years and nine months, as the criminal offence in issue is punishable with long-term imprisonment. That period expires on 27 November 2007. Since the proceedings in which the first-instance judgment has been quashed are still pending, the accused’s detention may be extended for one more year.”