V.R. v. CROATIA - 55102/13 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2015] ECHR 875 (13 October 2015)

In the case of V.R. v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Işıl Karakaş, President,
          Paul Lemmens,
          Helen Keller,
          Ksenija Turković,
          Egidijus Kūris,
          Robert Spano,
          Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 22 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 55102/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr V.R. (“the applicant”), on 25 July 2013. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).

2. The applicant was represented by Ms L. Horvat, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged that he had not been able to obtain an effective judicial review of his pre-trial detention by the Constitutional Court, contrary to Article 5 § 4 of the Convention.

4. The application was initially allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 16 December 2013 the complaint was communicated to the Government and the remainder of the application was declared inadmissible. On 1 September 2015, the Court changed the composition of its Sections (Rule 25 § 4). The present application was thus assigned to the newly composed Second Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1992.

6. On 8 May 2013 he was arrested on suspicion of sexual abuse and indecent behaviour towards two children.

7. On 10 May 2013 an investigating judge of the Z. County Court (Županijski sud u Z. -“the County Court”) ordered his pre-trial detention under Article 123 § 1(2) and (3) of the Code of Criminal Procedure (risk of collusion and reoffending).

8. On 17 May 2013 the applicant appealed. On 21 May 2013 a three-judge panel of the County Court dismissed his appeal as ill-founded, upholding the decision of the investigating judge.

9. On 6 June 2013 the investigating judge extended the applicant’s detention under Article 123 § 1(3) of the Code of Criminal Procedure (risk of reoffending) on the grounds that he might commit the same offences against the victims again if at large.

10. The applicant appealed on 12 June 2013, arguing that there was no reason to suspect that he had committed the offences at issue and alleging numerous procedural flaws when his pre-trial detention was extended.

11. On 14 June 2013 a three-judge panel of the County Court dismissed the appeal as ill-founded, endorsing the view of the investigating judge. The decision was served on the applicant’s representative on 26 June 2013.

12. On 5 July 2013 the applicant lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the decision of 14 June 2013, challenging the decisions on his pre-trial detention. He argued, in particular, that they lacked the relevant reasoning, and that the procedure for ordering and extending pre-trial detention had not been duly complied with.

13. On 8 July 2013 the applicant was indicted in the Z. Municipal Criminal Court (Općinski kazneni sud u Z. -“the Municipal Court”) on charges of sexual abuse and indecent behaviour towards two children.

14. On the same day a three-judge panel of that court extended his pre-trial detention under Article 123 § 1(3) of the Code of Criminal Procedure (risk of reoffending). The decision was served on the applicant’s representative on 15 July 2013.

15. On 10 July 2013 the applicant challenged the decision by lodging an appeal with the County Court, arguing that it lacked the relevant reasoning and alleging procedural flaws in the Municipal Court’s conduct.

16. On the same day the Constitutional Court declared the applicant’s complaint of 5 July 2013 (see paragraph 12 above) inadmissible, on the grounds that a new decision on his detention had since been adopted (see paragraph 14 above) and he was no longer being detained in connection with the decision complained about.

17. The Constitutional Court’s decision was served on the applicant’s representative on 18 July 2013.

18. On 19 July 2013 a three-judge panel of the County Court, in its examination of the applicant’s appeal of 10 July 2013 (see paragraph 15 above), quashed the decision of 8 July 2013 extending the applicant’s pre-trial detention and remitted the case to the Municipal Court for re-examination.

19. On 22 July 2013 a three-judge panel of that court released the applicant from detention, imposing a number of conditions on his release.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

1. Constitution

20. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) reads as follows:

Article 22

“Personal freedom and integrity are inviolable.

No one shall be deprived of his liberty save in accordance with the law, and any deprivation of liberty must be examined by a court.”

2. Constitutional Court Act

21. The relevant part of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows:

Section 62

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person invested with public authority, on his or her rights and obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local and regional government guaranteed by the Constitution (“constitutional right”) ...

2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.”

Section 72

“The Constitutional Court shall declare a constitutional complaint inadmissible if it does not have competence in the matter, or if or if [it] is belated, incomplete, incomprehensible or inadmissible. A constitutional complaint is inadmissible if the relevant legal remedies have not been exhausted, that is, the applicant has omitted to use them in the proceedings before the lower courts, with the exception provided for in section 62 of this Act; if it has been lodged by a person not entitled to do so; or if it has been lodged by a legal entity not vested with constitutional rights.”

3. Code of Criminal Procedure

22. The relevant provision of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012 and 143/2012) provides:

Grounds for Ordering Detention

Article 123

“(1) A person may be placed in detention where there is reason to suspect that he or she has committed an offence and:

...

2. there is a risk that he or she might destroy, hide, alter or forge evidence or clues relevant to the criminal proceedings or influence witnesses, or where there is a risk of collusion;

3. there is a risk that the person concerned might reoffend; ...”

B. Relevant practice

23. On 13 January 2014, in its decision no. U-III-5449/2013, the Constitutional Court found that it should change its approach to cases where a constitutional complaint has been brought against a decision on detention which has in the meantime been replaced by a new decision on detention, before the Constitutional Court has decided on it. It considered that, in view of the requirements under Article 5 § 4 of the Convention, such complaints should be examined on the merits. The relevant part of the decision reads:

“6. The [Court’s] case-law with respect to Croatia shows that the Constitutional Court is obliged to re-examine its case-law in line with the requirements under Article 5 § 4 [of the Convention].

...

The Constitutional Court is obliged, however, to align its practice with the requirements of Article 5 § 4 of the Convention. That means in the case at issue that the Constitutional Court is obliged to examine the appellant’s complaints against the impugned decisions extending his pre-trial detention on the merits, irrespective of the fact that those decisions were repealed...before the termination of the proceedings before the Constitutional Court ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

24. The applicant complained that he had not been able to obtain an effective judicial review of his pre-trial detention by the Constitutional Court, as provided for by Article 5 § 4 of the Convention, which reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A. Admissibility

25. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

26. The applicant contended that the Constitutional Court had acted contrary to the Court’s well-established practice by declaring his constitutional complaint inadmissible merely because a new decision on his detention had in the meantime been adopted, even though this had not essentially brought about any change to his position. Moreover, he pointed out that he had duly exhausted domestic remedies, including a constitutional complaint, and that there had been nothing in his conduct to suggest he had not been diligent in using the available remedies. Accordingly, in his view, this practice of the Constitutional Court had deprived the pre-trial detention review procedure of any meaningful purpose and effectiveness.

27. The Government argued, in particular, that the domestic legal system provided an effective procedure for the applicant to contest the grounds and duration of his detention before the Constitutional Court. They pointed out that the procedural requirements for a decision on the merits of a constitutional complaint was dependent on two conditions. Firstly, the applicant had to be detained and secondly, the impugned decision on his detention had to have been in force at the time of the Constitutional Court’s decision. Such practice had a legal and procedural justification, in that the Constitutional Court had wanted to keep its powers of review practical and effective by restricting its examination to existing decisions on detention. As the applicant had not lodged his constitutional complaint against the decisions on his detention of 6 and 14 June 2013 until 5 July 2013 (see paragraph 12 above), and as a new decision on his detention had in the meantime been adopted on 8 July 2013 (see paragraph 14 above), the Constitutional Court on 10 July 2013 had declared his complaint inadmissible without examining it on the merits. The applicant’s pre-trial detention had however later been examined by the Z. County Court and he had eventually been released from detention.

2. The Court’s assessment

(a) General principles

28. The Court reiterates that the purpose of Article 5 § 4 is to assure persons who have been arrested and detained the right to judicial supervision of the lawfulness of the measure to which they have been subjected (see, among many other authorities, Ismoilov and Others v. Russia, no. 2947/06, § 145, 24 April 2008, and Petkov and Profirov v. Bulgaria, nos. 50027/08 and 50781/09, § 66, 24 June 2014). A remedy must be made available during a person’s detention to allow him or her to obtain a speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004-VIII, and Margaretić v. Croatia, no. 16115/13, § 113, 5 June 2014).

29. The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, for instance, Čonka v. Belgium, no. 51564/99, §§ 46 and 55, ECHR 2002-I, and Stephens v. Malta (no. 2), no. 33740/06, § 83, 21 April 2009).

30. Furthermore, Article 5 § 4 enshrines, as does Article 6 § 1, the right of access to a court, which can only be subject to reasonable limitations that do not impair its very essence (see Shishkov v. Bulgaria, no. 38822/97, §§ 82-90, ECHR 2003-I, and Bochev v. Bulgaria, no. 73481/01, § 70, 13 November 2008). While Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of applications for release from detention, it nevertheless requires a State which institutes such a system to in principle accord detainees the same guarantees on appeal as at first instance (see Peša v. Croatia, no. 40523/08, § 126, 8 April 2010).

(b) Application of these principles to the present case

31. The Court notes that the applicant’s constitutional complaint of 5 July 2013 against the decisions of 6 and 14 June 2013 extending his detention (see paragraph 12 above) was declared inadmissible by the Constitutional Court on 10 July 2013, on the grounds that a fresh decision extending his detention had been adopted on 8 July 2013 (see paragraphs 14 and 16 above).

32. The Court has already examined, in other Croatian cases, the Constitutional Court’s practice of declaring constitutional complaints inadmissible where a fresh decision extending detention has been adopted before it has given its decision. In this connection, the Court has found a violation of Article 5 § 4 of the Convention in that the Constitutional Court’s failure to decide on the applicants’ constitutional complaints on the merits made it impossible to ensure the proper and meaningful functioning of the system for the review of their detention provided for by national law (see Peša, cited above, § 126; Hađi v. Croatia, no. 42998/08, § 47, 1 July 2010; Bernobić v. Croatia, no. 57180/09, § 93, 21 June 2011; Krnjak v. Croatia, no. 11228/10, § 54, 28 June 2011; Šebalj v. Croatia, no. 4429/09, § 223, 28 June 2011; Getoš-Magdić v. Croatia, no. 56305/08, § 106, 2 December 2010; Trifković v. Croatia, no. 36653/09, §§ 139-140, 6 November 2012; and Margaretić, cited above, §§ 119-121).

33. While the Court notes the positive changes in the approach of the Constitutional Court introduced in January 2014, removing any lack of effectiveness of the review procedure before it (see paragraph 23 above), it observes that the applicant’s case was dealt with under the old approach, which was found to be contrary to the requirements of Article 5 § 4 of the Convention. The Court therefore sees no reason to depart from its findings in the cases cited above (see paragraph 32 above).

34. There has accordingly been a violation of Article 5 § 4 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

35. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

36. The applicant claimed 794.56 euros (EUR) in respect of pecuniary damage for loss of earnings during the period of his detention, and EUR 7,000 in respect of non-pecuniary damage.

37. The Government considered the applicant’s claim excessive, unfounded and unsubstantiated.

38. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

39. The applicant also claimed EUR 4,302.63 for the costs and expenses incurred before the domestic courts and before the Court.

40. The Government considered this claim excessive and unsubstantiated.

41. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 3,300 covering costs under all heads, plus any tax that may be chargeable.

C. Default interest

42. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 5 § 4 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas (HRK) at the rate applicable at the date of settlement:

(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,300 (three thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Işil Karakaş
Registrar President

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