CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 avril 2010

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CROATIA   (Application no. 40523/08)             JUDGMENT       STRASBOURG   8 April 2010   FINAL   08/07/2010   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Peša v. Croatia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 18 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 40523/08) 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 Robert Peša (“the applicant”), on 25 August 2008. 2.     The applicant was represented by Ms V. Drenški Lasan, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     On 26 August 2008 the President of the First Section decided to give priority treatment to the application in accordance with Rule 41 of the Rules of Court. 4.     On 25 November 2008 the President of the First Section decided to communicate to the Government the applicant's complaints concerning the conditions of and grounds for his detention, the proceedings concerning its lawfulness, and his right to a fair trial and to be presumed innocent. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1965 and lives in Zagreb. 1.     Criminal proceedings against the applicant (a) Investigation 6.     The applicant was a vice-president of the Croatian Privatisation Fund ( Hrvatski Fond za privatizaciju – “the CPF”), a State-run agency which is in charge of privatisation of all publicly owned property. On 16 June 2007 the applicant was arrested and remanded in custody on suspicion of accepting bribes. The applicant was placed in Zagreb Prison, where he stayed until 18   March 2009, when he was released. The case was known in the national press as the “Maestro” affair. 7.     Following a request filed on 19 June 2007 by the Anti-Corruption and Prevention of Organised Crime Office ( Ured za suzbijanje korupcije i organiziranog kriminala – “the Anti-Corruption Office”), on 20 June 2007 an investigating judge of the Zagreb County Court opened an investigation in respect of the applicant, several other employees of the CPF and some other persons. As regards the applicant, a reasonable suspicion was established that he had accepted bribes. Several times the investigation was extended to cover further criminal acts discovered subsequently. 8.     Several defendants lodged an appeal against the decision ordering the investigation. 9.     Between 12 and 21 June 2007 the police carried out searches of the offices the defendants used in the CPF, certain other premises, computer equipment and some of the vehicles the defendants used, and confiscated a large number of documents which were eventually submitted to the prosecuting and investigating authorities. 10.     Between 21 and 26 June 2007 the State Attorney's Office carried out interviews with two persons. 11.     On 2 July 2007 the Zagreb County Court dismissed the appeals against the decision ordering the investigation. 12.     Between 4 and 13 July 2007, following warrants issued by the investigation judge assigned to the case, searches of computer software and cellular telephones of some of the defendants and other persons were carried out. 13.     On 5 July 2007 the investigation judge ordered the Zagreb Bank and the Erste & Steiermärkische Bank to submit data concerning the defendants' accounts. 14.     On 11 July 2007 the police informed the Anti-Corruption Office, which acted as prosecuting authority in the case, of the steps taken, such as informative interviews with two persons and confiscation of further voluminous documentation relevant to the case. During August and September 2007 the police collected further documentation connected to the defendant's alleged criminal activities. On 20 September 2007 the police interviewed another person. 15.     On 3 October 2007 the investigation in respect of the applicant was extended to charges of abuse of his position. 16.     On 29 November 2007 the police interviewed another witness. 17.     On 30 November 2007 the investigation judge ordered an expert to make a transcript of 100 video recordings and 219 audio recordings and numerous telephone calls. 18.     During the investigation, the investigation judge heard evidence from the defendants on 18 and 20 June 2007, 2, 3 and 22 October 2007, and 3, 12 and 14 December 2007. He also heard evidence from fifty-four witnesses on 17, 19, 23 and 24 July 2007, 17, 19 and 21   September 2007, 3   October 2007, 19, 21 and 26 November 2007, 3 and 4   December 2007, and 8, 9 and 11 January 2008. (b) Criminal trial 19.     On 13 February 2008 the Anti-Corruption Office submitted an indictment against ten persons, including the applicant. The charges preferred against the applicant consisted of the criminal offences of accepting bribes and abuse of his position as a vice-president of the CPF. On 19 February 2008 the indictment was served on the defendants, all but one of whom lodged objections against it between 21   February and 6   March 2008. 20.     On 30 April 2008 the Zagreb County Court returned the indictment to the Anti-Corruption Office in order to rectify it within three days. A rectification of the indictment was lodged with the Zagreb County Court on 9 May 2008. The indictment became final on 27 May 2008. 21.     On 27 May 2008 a non-trial panel of the Zagreb County Court excluded certain documents from the case file. On 6 June 2008 one of the defendants lodged an appeal, which was dismissed by the Supreme Court on 9 June 2008. 22.     On 24 October 2008 the trial court ordered an expert report on further audio and video recordings. The report was submitted on 7   November 2008. 23.     A number of hearings were held between 10 November 2008 and 12   May 2009, when the Zagreb County Court adopted a judgment finding the applicant guilty of taking bribes and sentenced him to two years' imprisonment. On 15 May 2009 the judgment was delivered publicly. The defendants lodged their respective appeals and the appeal proceedings are currently pending. 2.     Conditions of the applicant's detention 24.     From 18 June 2007 to 10 October 2008 the applicant shared a cell measuring 21.10 square metres with six other inmates. 25.     According to the applicant, the toilet area was not completely secluded and sometimes in the morning the inmates had to use bottles to urinate since they could not wait for their turn. The inmates smoked in the cell although there was no ventilation. All this created an unbearable foul smell, especially in the summer when temperatures rose above 30 degrees Celsius. Also, access to natural light was very poor. Food was served in the cell. However, since there was not enough space for all the inmates to consume food at the same time, quarrels over the food were frequent. The cell was furnished with seven beds, a table and four chairs. The cell was so overcrowded that there was no space to move about although movement was necessary for the applicant since he suffered from a vein ailment. Furthermore, he had problems with his prostate, for which he received no medical assistance. In April 2008 one other inmate attempted suicide and another broke the window pane with his hand. There were no recreational activities. The applicant alleged that these conditions had caused him mental problems but he had not seen a psychiatrist although he had requested to do so. 26.     According to the Government, the cell had four windows, each measuring 86 cm by 87 cm. The applicant had received three meals a day. He had been seen by a psychiatrist on several occasions and prescribed sleeping pills, which he had stopped taking in December 2008. He had also been seen by a surgeon in connection with the problems he had had with varicose veins and appropriate medication had been prescribed and administered. The applicant's request to obtain herbal medicine from outside the prison had been allowed. 27.     From 10 October to 18 December 2008 the applicant shared another cell of the same size and in similar conditions with five other inmates. 28.     From 18 December 2008 to 18 March 2008 the applicant was placed in a single-occupancy cell measuring 9.97 square metres. 29.     According to the applicant, he had requested to be placed in solitary confinement in order to be able to prepare his defence, which had been impossible for him in his previous cells owing to the overcrowded conditions described above and also in view of the complexity of the criminal case against him. As an illustration of the latter, the applicant submitted that the criminal case file against him consisted of over eight thousand pages and in his previous cells there had not been enough space even to keep a copy of all relevant documents from the file, let alone to study them. 30.     During his entire detention the applicant was allowed to spend two hours a day in the fresh air. 3.     Decisions concerning the applicant's detention 31.     On 17 June 2007 an investigation judge of the Zagreb County Court remanded the applicant in police custody until 4.45 p.m. on 18 June 2007, pursuant to Article 98 § 1 of the Code of Criminal Procedure. 32.     On 18 June 2007 an investigation judge of the Zagreb County Court remanded the applicant in custody until 5.45 p.m. on 19 June 2007, pursuant to Article 98 § 2 of the Code of Criminal Procedure. 33.     On 20 June 2007 an investigation judge of the Zagreb County Court remanded the applicant in custody pursuant to Article 102 § 1(2) and (3) of the Code of Criminal Procedure and stated that his detention was to be counted from 16 June 2007 at 4.45 p.m. and could last one month at most. The relevant part of the decision reads as follows: “I find that there are grounds for ordering the suspects' detention under Article 102 § 1(2) of the Code of Criminal Procedure in view of the fact that a large number of witnesses due to give evidence during these criminal proceedings have obtained information from the suspects about the criminal offences. The first, second, third and fourth suspects are employees of the Croatian Privatisation Fund, as are the witnesses G.I., the President of the CPF, F.J., the Registrar of the CPF, B.S., a secretary in the CPF, M.B., an administrator in the CPF, Z.R. and V.S., also employed in the CPF, Lj.Ž. and J.I., employed in the Sales Department of the CPF, and other individuals well known to the first to fourth suspects. Therefore, there is a reasonable fear that the suspects, if released, might suborn these and other witnesses so as to adjust the witnesses' evidence with their defence. ... The second suspect, Robert Peša, showed a high degree of criminal resolve in undertaking a number of illegal steps over a long period of time by which he caused substantial material damage when he, in his capacity as an employee of the CPF, violated the statutory code of conduct. ... The above-mentioned acts of the suspects justify the fear that they, and particularly the first to fourth suspects, who are still employees of the CPF, in view of their functions and the influence they exert in their capacity as the vice-presidents of the CPF, ... if released, would continue their criminal activity...” 34.     On 29 June 2007 the applicant was dismissed from his post by a decision of the President of the CPF. 35.     The applicant and the other suspects appealed against the above decision. On 2 July 2007 a three-judge panel of the Zagreb County Court upheld the applicant's detention, relying on Article 102 § 1(2) of the Code of Criminal Procedure and quashed the impugned decision as regards the ground under Article 102 § 1 (3) of the Code of Criminal Procedure. In that part the impugned decision was remitted to the investigation judge for fresh consideration. The relevant part of the appellate decision reads as follows: “ The appeals of the accused in respect of the ground for ordering detention under Article 102 § 1(3) of the Code of Criminal Procedure This panel considers that the ground for detention under Article 102 § 1(3) of the Code of Criminal Procedure in respect of the ... second ... accused exists. The decision ordering an investigation [is based on a] suspicion that ... the second accused had committed the criminal offence under Article 347 § 1 of the Criminal Code ... ... There is a well-founded suspicion that the second accused, as a vice-president of the CPF, that is to say a high-ranking State official, abused his position by accepting a proffered gift in order to undertake an official act ... which he was not supposed to undertake because his primary duty was to protect the economic interests of the Republic of Croatia. He showed a high degree of criminal resolve and determination in his unlawful activities. ... In the opinion of this panel the foregoing amounts to specific circumstances which justify a genuine fear that ... the second ... accused, if released, might continue his criminal activity in committing the same or similar criminal offences. Therefore, the measure of detention is necessary in respect of ... the second accused ... also on the ground under Article 102 § 1(3) of the Code of Criminal Procedure. Ex officio , in respect of the ground for detention under Article 102 § 1(2) of the Code of Criminal Procedure ... In the operative part of the impugned decision the detention against ... the second accused ... is ordered on the ground under Article 102 § 1(3) of the Code of Criminal Procedure, while the reasoning of the impugned decision ... refers to the ground under Article 102 § 1(2) of the Code of Criminal Procedure. In view of this contradiction, it is not possible to examine whether the appeals were founded or not because it is not clear whether the investigation judge ordered detention solely on the ground under Article 102 § 1(3) of the Code of Criminal Procedure or also on the ground under Article 102 § 1(2) of the same Code.” 36.     In a decision of 5 July 2007 the investigation judge of the Zagreb County Court ordered the applicant's detention also on the ground under Article 102 § 1(2) of the Code of Criminal Procedure. He reiterated the same reasons as in his previous decision of 20 June 2007. 37.     On 12 July 2007 the same judge extended the applicant's detention until 16 September 2007 on the ground under Article 102 § 1(2) and (3) of the Code of Criminal Procedure. 38.     On 13 February 2008 an indictment was filed against the applicant and other defendants before the Zagreb County Court. 39.     On 15 February 2008 a three-judge panel of the Zagreb County Court extended the applicant's detention on the ground under Article 102 §   1(4) of the Code of Criminal Procedure. The relevant part of the decision reads as follows: “The indictment reveals a well-founded suspicion that the first to fifth ... defendants committed the criminal offences listed, which is a general statutory condition under Article 102 § 1 of the Code of Criminal Procedure for ordering detention. ... the second defendant Robert Peša is indicted for having committed criminal offences in his capacity as a vice-president of the Croatian Privatisation Fund ('the CPF') ... Section 3 of the CPF Act (Official Gazette nos. 84/1992, 70/1993, 76/1993, 19/1994, 52/1994 and 87/1996) provides that the CPF was founded for the purpose of conducting and completing the process of privatisation of assets which were temporarily transferred to the CPF ... Section 4 of the CPF Act entrusts the CPF with expert and administrative tasks concerning privatisation ... The importance of the CPF in the economic life of the Republic of Croatia, the role of the defendants in the activities of which they are accused, the fact that they held certain functions in the CPF and that, according to the indictment, they abused those functions by committing various wrongful acts and falsely presenting their acts as legal in order to secure substantial material gain by which they harmed the reputation of the CPF, which was entrusted, inter alia , with conducting and completing the process of privatisation and managing the assets of the Republic of Croatia, and the distrust, [the defendants] stirred up among the public as regards the legality of the CPF's activities, amount, in the opinion of this panel, to particularly grave circumstances which justify the necessity of extending the detention of ... the second defendant ... on the grounds under Article 102 § 1(4) of the Code of Criminal Procedure.” 40.     Both the applicant and the State Attorney's Office lodged appeals against the above decision. On 14 March 2008 the Supreme Court dismissed the applicant's appeal. It allowed the State Attorney's appeal and ordered the applicant's detention also on the ground under Article 102 §   1(2) of the Code of Criminal Procedure. The relevant part of the decision read as follows: “The acts of the defendants show that they were motivated by personal gain and acted in a corrupt manner contrary to their duties in the process of privatisation and thus also contrary to the purposes for which the Fund was established. These activities, apart from securing substantial material gain to the defendants, also presented a public image of the deviant nature of privatisation, by which the defendants harmed the reputation of the basic State institutions. In the privatisation process these defendants were obliged to protect the economic interests of the CPF and the Republic of Croatia as the owner of the immovable property which is the subject of the accusations. In the context of the market economy, their duties included securing fair competition, enabling all bidders to participate under equal conditions in public tenders and making proposals to the Government as regards the best offers exclusively in the interest of the seller, the Croatian Privatisation Fund, that is to say the Republic of Croatia and the companies which were the subject of the sale, and all that in order to achieve the purposes defined in the Privatisation Act. Given the functions of the defendants in the Croatian Privatisation Fund, it being of exceptional importance in the process of privatisation, they significantly damaged the reputation of the Croatian Privatisation Fund in conducting and completing the privatisation process and managing the assets of the Republic of Croatia. All this resulted in arousing public doubts as to the legality and correctness of the entirety of the activities of the Croatian Privatisation Fund. These circumstances taken as a whole surpass by far the essential elements ... of the criminal offence in respect of which these proceedings are conducted. Thus, they amount to particularly grave circumstances in relation to a criminal offence, justifying the necessity of extending the detention against ... Robert Peša ... on the grounds under Article 102 § 1(4) of the Code of Criminal Procedure. ... ... this court considers that ... a legal ground for the extension of detention in respect of the defendant ... Robert Peša also exists under Article 102 § 1(2) of the Code of Criminal Procedure ... ... the witness J.K. has not given his evidence yet. This witness is to testify about crucial facts concerning the alleged activities of the defendants who know him ... which justify a fear that these defendants, if released, might suborn that witness ...” 41.     On 9 April 2008 the applicant lodged a constitutional complaint. On 30 April 2008 the Constitutional Court upheld the part of the Supreme Court's decision extending the applicant's detention on the ground under Article 102 § 1(4) of the Code of Criminal Procedure. However, it quashed the part of the impugned decision as regards the grounds under Article 102 §   1(2) of the Code of Criminal Procedure. In that part the case was remitted to the Supreme Court for fresh consideration. 42.     On 12 May 2008 the Supreme Court dismissed an appeal lodged by the State Attorney's Office against the Zagreb County Court's decision of 15   February 2008. Thus, the applicant's further detention was ordered only on the ground under Article 102 § 1(4) of the Code of Criminal Procedure. 43.     On 12 May 2008 the applicant lodged an application for the detention order against him to be lifted. 44.     On 14 May 2008 a three-judge panel of the Zagreb County Court extended the applicant's detention on the ground under Article 102 § 1(4) of the Code of Criminal Procedure and at the same time dismissed his application for the detention order against him to be lifted. 45.     On 20 May 2008 the applicant appealed against the above-mentioned decision. On 9 June 2008 the Supreme Court dismissed the applicant's appeal. On 24 June 2008 the applicant lodged a constitutional complaint against the above-mentioned decisions of the County and Supreme Courts. The applicant also alleged that the conditions of his detention had been inhuman. 46.     On 10 July 2008 the Zagreb Prison Administration allowed supervised telephone calls between the applicant and his defence counsel, Mrs   V.D.L. 47.     On 8 August 2008, a three-judge panel of the Zagreb County Court extended the applicant's detention on the grounds under Article 102 §   1(4) of the Code of Criminal Procedure, repeating the same reasoning as in its decision of 15 February 2008. On 11 August 2008 the applicant lodged an appeal in which, inter alia , he repeated his allegations that the conditions of his detention were inhuman. On 19 September 2008 the Supreme Court dismissed the applicant's appeal, without referring to the applicant's allegations about the conditions of his detention. It addressed the issue of the legality of the applicant's detention and analysed in detail the gravity of the charges and the specific circumstance of the alleged manner in which the offences had been committed. 48.     The applicant's constitutional complaint of 24 June 2008 was declared inadmissible on 25 September 2008 on the ground that the impugned decisions were no longer in effect since, meanwhile, a fresh decision on his detention had been adopted on 8 August 2008. 49.     On 29 September 2008 the applicant lodged a constitutional complaint against the Zagreb County Court's decision of 8 August 2008 and the Supreme Court's decision of 19 September 2008. Among other things, he reiterated his complaints about the conditions of his detention. 50.     On 24 October 2008 the Zagreb Prison Administration allowed unsupervised telephone calls between the applicant and his defence counsel. Mrs   V.D.L. 51.     On 19 November 2008 the Zagreb County Court extended the applicant's detention. The applicant appealed. 52.     On 18 December 2008 the Constitutional Court declared the applicant's constitutional complaint of 29 September 2008 inadmissible on the ground that the impugned decisions were no longer in effect since, meanwhile, a fresh decision on his detention had been adopted on 29   November 2008. 53.     On 4 February 2009 the Supreme Court upheld the Zagreb County Court's decision of 19 November 2008. The applicant lodged a constitutional complaint. 54.     On 17 March 2009 the Constitutional Court accepted the applicant's complaint and quashed the Supreme Court's decision of 4 February 2009 and the Zagreb County Court's decision of 19 November 2008. In the operative part of the decision it found a violation of the applicant's right to human treatment and respect for his dignity. It also ordered the Government to adjust the facilities at Zagreb Prison to the needs of detainees within a reasonable time, not exceeding five years. The relevant part of the decision reads: “[As to the right to personal liberty] 4.     ... the impugned decision of the Supreme Court found that these rights of the applicant had not been infringed since the first condition for ordering detention had undoubtedly been met by the fact that the existence of a reasonable suspicion that the applicant had committed criminal offences had been established with certainty, which was a general requirement for ordering detention under Article 102, paragraph 1, of the C[ode of] C[riminal] P[rocedure]. The Supreme Court also deemed unfounded [the applicant's] understanding that detention under Article 102 paragraph 1(4) of the C[ode of] C[riminal] P[rocedure] should be in keeping with the aim of ensuring the attendance of an accused in criminal proceedings and was to be ordered only where the same aim could not be achieved by another measure. ... 8.     ...when a person is deprived of liberty only owing to the reasonable suspicion that he or she has committed a specific (grave) criminal offence, then the requirement for the bodies conducting the criminal proceedings to examine with special diligence any extension of detention on such grounds carries even greater weight. The persistence of a reasonable suspicion as such no longer suffices after a certain lapse of time for justifying detention. According to the case-law of the European Court of Human Rights, in such cases it is necessary to establish two conditions for ordering [further detention]: (a) whether the grounds justifying [deprivation of liberty] are still 'relevant and sufficient'; and (b) whether the competent authorities displayed 'special diligence' in the conduct of the proceedings. Only where both conditions are met can the duration of continued detention be seen as reasonable... 9.     ...By disregarding, without a good reason, the principle of proportionality as to the appropriateness, necessity and adequacy of the applicant's continued detention on the grounds under Article 102, paragraph 1(4), of the C[ode of] C[riminal] P[rocedure] and by limiting its findings to saying that '... the applicant's placement in detention has not for the time being jeopardised this principle', the Supreme Court has, in the view of the Constitutional Court, infringed the applicant's constitutional right to personal liberty. ... 9.2.     ... the Supreme Court correctly noted that the principle of proportionality required, 'apart from the duration of detention, an assessment of the relationship between the gravity and the number of the criminal offences held against the accused and [the severity of] the penalty he risked on the basis of the case file in the event of being found guilty'. However, it overlooked two important factors: (a) the fact that the applicant is accused of criminal offences punishable by one to ten years' imprisonment and that ... under Article 109, paragraph 1(4), of the C[ode of] C[riminal] P[rocedure] his detention, before the adoption of the first-instance judgment, cannot exceed two years, while section 28, paragraph 3, of the Anti-corruption Office Act ... allows for its extension for a further six months; and (b) the fact that the applicant has so far spent more than a year and eight months in detention and at this time it is not possible to say with any certainty how much longer the taking of evidence and the trial before the first-instance court might last. Paying full regard to the principle of proportionality, as to its above-mentioned test of appropriateness, necessity and adequacy, surely requires consideration of these two factors. Only then can the question whether in the case at issue the public interest in the applicant's continued detention during the criminal proceedings against him – in which the judgment as to his guilt is yet to be given – outweighs the right to personal liberty guaranteed by the Constitution and the Convention be correctly assessed. ... [As to the right not to be ill-treated] 17.1.     ... the Constitutional Court notes that section 74, paragraph 3, of the Enforcement of Prison Sentences Act, inter alia , defines the standard occupancy space per prisoner in the following terms: 'Premises in which the prisoners dwell shall be clean, dry and sufficiently spacious. There shall be a minimum space of 4 square metres and 10 cubic metres per prisoner in each dormitory.' ... overcrowded conditions in Zagreb Prison cannot serve as acceptable justification for the poor condition of the cell the applicant occupies. In the light of the principle of presumption of innocence, the Constitutional Court stresses that the applicant's right to personal freedom, since he is in pre-trial detention and not convicted, must not be restricted to a more severe degree than that of a convicted person. 17.2.     In assessing the quality of medical care, the Constitutional Court accepts the allegations of the Zagreb Prison Administration that it is at a satisfactory level. However, the Prison Administration must, taking into account the need to minimise any damaging consequences of overcrowded conditions, establish standards in respect of additional medical care for detainees by employing the services of out-of-prison medical assistance not dependent on the discretionary assessment of the Prison Administration. 17.3.     Lastly, the Constitutional Court finds the family visits regime inadequate, in view of the overcrowded conditions, both as regards the duration of visits and the procedure applied in respect of family members, which, ..., significantly diminishes the purpose of such contact ... ... 22.     For the reasons set out in points ... 17 [of this decision] the Constitutional Court finds that the general conditions of the applicant's detention amount to degrading treatment and thus infringe his constitutional rights guaranteed under Article 23 and Article 25(1) of the Constitution as well as his rights under Article 3 of the Convention. The Constitutional Court has not addressed the possibility of granting the applicant just satisfaction for the above infringements of his constitutional and Convention rights because in the Croatian legal system there exists another, effective legal remedy in that respect (see the Constitutional Court's decision no. U-III-1437/07 of 23 April 2008. ...” 55.     On 18 March 2009 the applicant was released. 56.     On 29 April 2009 the applicant filed a claim for damages with the State Attorney's Office, asking that a settlement be reached in the matter. 4.     Statements by certain high-ranking State officials in the media 57.     On 17 June 2007 an article entitled “Bribery in the CPF – 6 arrested” was published in a Sunday edition of the national daily newspaper Nedjeljni Jutarnji . The article starts as follows: “ZAGREB – six arrested, three of whom are vice-presidents of the Croatian Privatisation Fund, the search for the seventh person [still on] and more than 800,000 or maybe even 1.3 million euros from the State budget given as bribes to individuals in the CPF: these are the results of a year-long criminal investigation ...” 58.     In the article the following statement by the Head of the Police was quoted: “'To have a coffee with you and allow you into the game, into making deals for purchasing CFP property, a sum of 50,000 euros was required in payment,' said Marijan Benko, the Head of the Police ...” 59.     On 17 June 2007 an article entitled “They took millions of euros” was published in the national daily newspaper 24 sata . It quoted the following statement by the State Attorney: “Just for listening to you, that is to say having a coffee with you, they asked for 50,000 euros.” 60.     On 18 June 2007 an article entitled “The biggest corruption scandal” was published in the national daily newspaper 24 sata . It again quoted the following statement by the State Attorney: “The State Attorney Mladen Bajić said that the investigation [showed that] the suspects were ravenously greedy. Just for initiating any conversation about business they asked for 50,000 euros, for coffee, as they said.” 61.     On 21 June 2007 the following quotation from a statement made by Mr Ivo Sanader, the Prime Minister, was published in the national daily newspaper Večernji list : “'There was organised crime in the Privatisation Fund,' said Prime Minister Sanader. 'The three vice-presidents did not necessarily participate in each project of the Fund but it is probable that each of them acted together with a number of other individuals and in that sense it is possible to talk about organised crime.'” 62.     On 22 June 2007 an article entitled “President Mesić: The three tenors will be supplied with an orchestra” was published in the national daily newspaper Jutarnji list . The relevant part of the article reads: “ZAGREB – The investigation of corruption will be extended to other institutions; it is not enough to deal with the Croatian Privatisation Fund only. It is the centre of corruption, but extends further like an octopus. The Maestro action is only one of the leads to follow, and there will be more. The melody is known and is now practised and the parts are allocated. The three tenors will be supplied with an orchestra, said President Stjepan Mesić.” II.     RELEVANT DOMESTIC LAW AND PRACTICE 63.     The relevant articles of the Croatian Constitution ( Ustav Republike Hrvatske ) provide: Article 23 “No one shall be subjected to any form of ill-treatment ...” Article 25 “All detainees and convicted persons shall be treated in a human manner and with respect for their dignity. ...” Article 28 “Everyone shall be presumed innocent and nobody shall be held guilty of a criminal offence until his or her guilt has been established in a final judgment of a court of law.” 64.   Section 62(1) of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu , Official Gazette no. 29/2002) reads: “1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt ) of a State body, a body of local and regional self-government, or a legal person with public authority, which has decided about his or her rights and obligations, or about a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...” 65.     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, 178/2004 and 115/2006) provide as follows: Article 3 “Everyone shall be presumed innocent and nobody shall be held guilty of a criminal offence until his or her guilt has been established in a final judgment of a court of law.” Preventive Measures Article 90 “(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. ...” 8. General Provisions on Detention Article 101 “(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure. (2) The detention order 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, the 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) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case the detention order shall immediately be lifted.” 9. Grounds for Ordering Detention Article 102 “(1) Where a reasonable suspicion exists that a person has committed a criminal offence, he or she may be placed in detention if: ... (2) there is a reasonable suspicion that the person concerned may destroy, hide, alter or forge evidence or traces important for the criminal proceedings or may impede the proceedings by suborning witnesses, accomplices or accessories after the offence. (3) special circumstances justify the fear that the person concerned will repeat a criminal offence ... (4) the charges involved 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, when detention is justified by the modus operandi or other especially grave circumstances of the offence.” Article 106 “(1) Detention ordered by an investigation judge ... shall not exceed one month ... (2) During the investigation the investigation judge ... may, for justified reasons, extend detention for the first time for a maximum of two months and then for a further maximum of three months. (3) The maximum detention during the investigation shall not exceed six months ...” Article 107 “... (2) After the indictment has been lodged ... a [judicial] panel ... shall examine every two months whether the statutory conditions for detention have continued to exist ...” Grounds for appeal against a [first-instance] judgment Article 366 “An appeal against a [first-instance] judgment may be lodged on account of: (1) grave procedural errors; (2) infringements of the Criminal Code; (3) an incorrect or insufficient assessment of the facts; (4) decisions on criminal sanctions, forfeiture, costs of proceedings and pecuniary claims and orders to publish a judgment in the media.” 66.     The relevant provisions of the Civil Obligations Act ( Zakon o obveznim odnosima , Official Gazette nos. 35/2005 and 42/2008) read as follows: Section 19 “(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act. (2) The right to respect for one's personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one's name and privacy of personal and family life, freedom et alia . ...” Section 1046 “Damage is ... infringement of the right to respect for one's personal dignity (non-pecuniary damage).” 67.     The relevant part of section 186(a) of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) reads as follows: “A person intending to bring a civil suit against the Republic of Croatia shall first submit a request for a settlement to the competent State Attorney's Office. ... Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court. ...” 68.     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: JUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE PRISON ADMINISTRATION Section 17 “(1)     An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act. (2)     Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.” Section 74 “... Premises in which the prisoners dwell shall be clean, dry and sufficiently spacious. There shall be a minimum space of 4 square metres and 10 cubic metres per prisoner in each dormitory. ...” 69.     In decision no. U-III-1437/2007 of 23 April 2008 the Constitutional Court found that the conditions of detention of a prisoner, P.M., in Lepoglava State Prison amounted to inhuman treatment. It also addressed the question of P.M.'s claim for just satisfaction. The relevant parts of the decision read: “In particular, the Constitutional Court finds unacceptable the [lower] courts' opinion that in this case a claim for non-pecuniary damage cannot be awarded under section 200 of the Civil Obligations Act on the ground that such a compensation claim is unfounded in law. ... Section 1046 of the Civil Obligations Act defines non-pecuniary damage as infringement of the right to respect for one's personal integrity. In other words, every infringement with one's right to personal integrity amounts to non-pecuniary damage. Section 19(2) of the Civil Obligations Act defines the right to personal integrity for the purposes of that Act as: the right to life, physical and mental health, reputation, honour, respect for one's dignity and name, privacy of personal and family life, freedom and other aspects. ... it is to b