CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 décembre 2010

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margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sE22B3CA2 { margin-top:10pt; margin-bottom:10pt; text-indent:14.2pt; text-align:justify }       FIRST SECTION             CASE OF GETOŠ-MAGDIĆ v. CROATIA   (Application no. 56305/08)               JUDGMENT     STRASBOURG   2 December 2010   FINAL   02/03/2011   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Getoš-Magdić 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,   Giorgio Malinverni,   George Nicolaou, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 9 November 2010 , Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 56305/08) 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, Ms Gordana Getoš-Magdić (“the applicant”), on 27 October 2008. 2.     The applicant, who had been granted legal aid, was represented by Ms   J.   Rinceanu, a lawyer practising in Freiburg, and by her sister, Ms   A.M.   Getoš. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     The applicant alleged that her right to be released pending trial had been violated, that the reasons relied on by the domestic courts for extending her detention had not been relevant and sufficient throughout the detention and that the proceedings to review the lawfulness of her detention had not complied with the requirements of Article 5 § 4 of the Convention. 4.     By a decision of 24 June 2010 the Court declared the application partly admissible. 5.     The applicant filed further written observations (Rule 59 § 1) on the merits. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1968 and lives in Osijek. A.     Background to the case 7.     In 1991 and 1992 the Osijek Police reported finding, at various locations in Osijek, a number of corpses showing signs that the victims had been murdered. At some point in 2001 the police, at the request of the State Attorney, commenced an inquiry into allegations that during the years 1991 and 1992 a number of civilians had been tortured and executed in Osijek, Croatia. A large number of individuals who had knowledge of these events were interviewed by the police. A voluminous case file was compiled and the inquiry resulted in the identification of the supposed perpetrators, one of whom was the applicant. 8.     On the afternoon of 18 October 2006 at about 8 p.m. the applicant, accompanied by her father, arrived at the Osijek Police Department, having answered a telephone call from the chief of the Osijek Police for an interview in connection with a suspicion that she had committed war crimes against the civilian population. The applicant was questioned until the early morning of 21 October 2006. B.     Criminal proceedings against the applicant 1.     Investigation 9.     On 20 October 2006 the Osijek-Baranja Police Department filed a criminal complaint against five individuals, including the applicant, alleging that there was a reasonable suspicion that during 1991 and 1992 they had committed war crimes against the civilian population. 10.     On 21 October 2006 the investigating judge heard evidence from the five suspects. 11.     On 22 October 2006 the investigating judge of the Osijek County Court opened an investigation in respect of the applicant and five other suspects in connection with suspected war crimes against the civilian population in 1991 and 1992 in Osijek. Several defendants lodged an appeal against the decision ordering the investigation. The appeals were dismissed on 2 November 2006 by a three-judge panel of the Osijek County Court. 12.     On 3 and 13 November 2006 two other investigations in respect of two further suspects were joined to that concerning the applicant. 13.     On 3 and 6 November 2006 the investigating judge of the Osijek County Court heard evidence from six witnesses. On 13 November 2006 the investigating judge examined the applicant. Since her counsel denied her further services, the judge appointed new counsel for the applicant. 14.     On 24, 27, 29 and 30 November and 1 December 2006 the investigating judge heard evidence from twenty witnesses. 15.     On 4 December 2006 the applicant found new counsel for herself. 16.     On 5 December 2006 the investigating judge ordered the exhumation of two unidentified corpses for DNA analysis. 17.     On 7 December 2006 the investigating judge heard evidence from four witnesses. On 11 December 2006 he heard evidence from two medical experts and six witnesses. On 12, 13 and 14 December he heard evidence from eighteen witnesses. On 15 December 2006 the judge ordered that a forensic examination be carried out. On the same day he heard evidence from a further six witnesses. On 18 December 2006 the forensic expert submitted his report. On the same day the investigating judge heard evidence from six witnesses and on 20 December 2006 from one more witness. On 21 December 2006 the judge heard evidence from the forensic expert. On 22 December 2006 the exhumation of two corpses was carried out. 18.     On 28 December 2006 the judge heard evidence from the applicant. 19.     On 5 January 2007 medical experts submitted their report on the DNA analysis of the two exhumed corpses. 20.     On 12, 17, 22 and 30 January and 1 February 2007 the investigating judge heard evidence from a further eighteen witnesses. On 5 February 2007 the judge held consultations with defence counsel for all defendants. On 7   and 8 February 2007 the judge heard evidence from thirteen witnesses and on 9 February 2007 from two of the defendants. On 14 February 2007 the judge heard evidence from six witnesses. On 15 February 2007 he heard evidence from a medical expert. On 22, 23 and 27 February and 1, 5 and 7   March 2007 the judge heard evidence from one defendant and twenty ‑ three witnesses. On 22, 27 and 29 March and 2 and 3 April 2007 the judge heard evidence from two defendants and sixteen witnesses. 2.     Criminal trial 21.     On 16 April 2007 the applicant and six other defendants were indicted before the Osijek County Court for war crimes against the civilian population, an offence under Article 120 of the Croatian Criminal Code. The applicant was accused of the illegal arrest, torture and liquidation of a number of civilians. 22.     Between 20 and 30 April 2007 all defendants lodged objections to the indictment ( prigovor protiv optužnice ). The objections were all dismissed on 22 May 2007 by a three-judge panel of the Osijek County Court and the indictment became final. 23.     On 29 May 2007 the Supreme Court transferred jurisdiction to the Zagreb County Court ( Županijski sud u Zagrebu ) and the proceedings continued before that court. 24.     On 26 June 2007 the applicant's counsel informed the Zagreb County Court that she no longer represented the applicant. 25.     At the hearings held before the Zagreb County Court on 15, 17 and 18 October and 5 November 2007 the parties gave their lists of evidence, commenting on the evidence proposed by their opponents, and the court decided what evidence from the lists was to be called. At hearings on 3, 4, 5, 7, 14 and 20 December 2007 and 7 and 8 January 2008 the seven defendants gave their evidence. 26.     On 11 January 2008 the County Court commissioned a report from a graphology expert. The report was submitted on 17 January 2008. 27.     At hearings on 21, 22 and 23 January 2008 five witnesses gave evidence. 28.     On 25 January 2008 the County Court carried out an on-site inspection of a house in Dubrovačka Street in Osijek. 29.     At hearings on 31 January and 1 February 2008 two witnesses and the expert in graphology gave evidence. On 6 February 2008 the County Court commissioned an additional report from the same expert. The report was submitted on 11 February 2008. 30.     At hearings on 13, 14, 15, 18 and 25 February, 13, 14, 20 and 25   March, 24 April, 12, 13, 14, 28, 29 and 30 May, 3, 4, 9, 10, 11, 16, 17, 18 and 23 July, 2, 3, 4, 7, 8, 14 and 15 July, 29 August and 1 and 2   September 2008, thirty-nine witnesses gave evidence, as well as an expert in graphology and a medical expert. 31.     On 17 September 2008 the applicant was released, but the criminal trial continued. A judgment was delivered by the Zagreb County Court on 7   May 2009. The applicant was found guilty of committing war crimes against the civilian population and sentenced to seven years' imprisonment. The defendants all lodged appeals and the appeal proceedings are currently pending before the Supreme Court. C.     Decisions concerning the applicant's detention 32.     On 19 October 2006 at 1.30 a.m. the police formally arrested the applicant, who had already been on the police-station premises since 8 p.m. on 18 October 2006, and took her into police custody for twenty-four hours, under Article 97 of the Code of Criminal Procedure. 33.     On 19 October 2006 an investigating judge of the Osijek County Court ordered her to be held in police custody for a further twenty-four hours, until 1.30 a.m. on 21 October 2006, under Article 98 § 1 of the Code of Criminal Procedure. The relevant part of the decision reads: “In the submission ... of 19 October 2006 the Osijek-Baranja Police Department, Criminal Police Division, informed this investigating judge that police questioning of the suspect Gordana Getoš-Magdić had been carried out in connection with the criminal offence set out in Article 120 § 1 of the Criminal Code, committed in the territory of the city of Osijek in 1991 and 1992. They allege that Gordana Getoš-Magdić was arrested on 19 October 2006 at 1.30   a.m. in connection with a reasonable suspicion that she had committed the said criminal offence and that ... several other members of the [military] squad under her command had also been arrested; [they] were giving their statements on fresh relevant facts and indications, which additionally confirmed the reasonable suspicion that Gordana Getoš-Magdić had committed the said criminal offence; the identification of other members of that squad was also under way, as was identification of the murder victims whose identity had not yet been established, for all of which the first twenty-four hours after the arrest did not suffice. Therefore they ask that the detention in police custody be extended. The request is well-founded. The documents in the case file of this court, no. Kio-170/06, which also contains the police case file ..., show that a reasonable suspicion that Gordana Getoš-Magdić committed the criminal offence with which she has been charged arises from the defence given by M.S. ... Since a police investigation has been carried out in order to establish the identity of the other member of the [military] squad under the command of Gordana Getoš-Magdić and since several members of that squad have also been arrested and the interviews with them are ongoing, and since it is necessary to identify the victims ..., it is obvious that the first twenty-four hours following the arrest could not suffice for these tasks and that a further twenty-four hours in police custody is necessary and sufficient for collecting [further] information on the evidence. In respect of the suspect Gordana Getoš-Magdić, the grounds for detention under Article 102 § 1(2) of the Code of Criminal Procedure exist for the time being because there is a reasonable suspicion that, in order to exculpate herself, she could hinder the criminal proceedings by suborning witnesses. Grounds for detention also exist under Article 102 § 1(4) of the Code of Criminal Procedure since the criminal offence [for which she is being held] falls within the category of offences set out in Article 181 of the Code of Criminal Procedure, that is, the criminal offence under Title XII of the Criminal Code, which carries a sentence of imprisonment for twenty years. In view of the fact that [the charges involve allegations of] liquidation by firearms, after which the corpses were thrown into the river Drava, actions typical of an execution, the court finds that these [factors] characterise the circumstances of the offence as serious and thus call for a custodial measure ...” 34.     On 21 October 2006 at 1 a.m. the investigating judge of the Osijek County Court, relying on Article 98 of the Code of Criminal Procedure, ordered an extension of the applicant's detention in police custody for forty-eight hours, until 23 October 2006 at 1 a.m. 35.     On 22 October 2006 the investigating judge of the Osijek County Court ordered the detention of the applicant and four other suspects for a further month, until 1.30 a.m. on 19 November 2006. The relevant part of the decision reads: “Since it is necessary to interview a large number of witnesses during the investigation, many of whom are members of the Croatian Army, that is, colleagues of the defendants, the court finds that there is a reasonable suspicion that the defendants, if at large, might suborn these witnesses; this fulfils the conditions for detention under Article 102 § 1(2) of the Code of Criminal Procedure. Furthermore, the first to fifth defendants are suspected of having committed the criminal offence set out in Article 120 § 1 of the Criminal Code, which carries a sentence of twenty years' imprisonment, in that they illegally arrested some individuals of Serbian origin, then illegally interrogated and ill-treated them, after which they bound their hands and mouths with self-adhesive tape and took some of them to the banks of the river Drava, where they killed them with shots from firearms and threw their bodies into the river Drava. Therefore, since these are actions typical of an execution, the court finds that the circumstances of the offence can be characterised as particularly serious and thus call for a custodial measure ...” 36.     On 22 October 2006 the applicant was transferred to Zagreb Prison. The proceedings continued before the Osijek County Court, about three hundred kilometres away. 37.     On 25 October 2006 the applicant lodged an appeal against the decision of 22 October 2006 ordering her detention. She argued that she had cooperated with the investigative bodies and admitted that she had committed the offences of which she was accused, and that therefore the same purpose might have been achieved through other measures such as home detention, bail or preventive measures. Furthermore, she was ready to hand over her passport. She further stressed her young age and that she was the mother of a minor child who, owing to her age and health, had constant need of a mother's presence, and that she, the applicant, contributed to the subsistence of her family. 38.     On 31 October 2006 the appeal was dismissed by a three-judge panel of the Osijek County Court. The relevant part of the decision reads: “Contrary to the allegations in the defendants' appeals, the investigating judge correctly found that the legal grounds for the defendants' detention under Article 102 § 1 (2 and 4) of the Code of Criminal Procedure did exist. There is a reasonable suspicion that the defendants committed a criminal offence against humanity and international law, namely war crimes against the civilian population as set out under Article 120 § 1 of the Criminal Code. A decision by the investigating judge ... of 22 October 2006 ordered that an investigation be carried out in respect of the said defendants, in connection with a reasonable suspicion that in the period from the middle of October to the end of December 1991 in Osijek, during the defence of the city from the joint aggression by the Y[ugoslav] P[eople's] A[rmy] and rebels from the local Serbian population against the constitutional order of the Republic of Croatia, they [acted] contrary to Article 3 of the [Fourth] Geneva Convention Relative to the Protection of Civilian Persons in Time of War and Article   4 §§ 1 and 2(a), Article 5 § 3 and Article 13 § 2 of the Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), in that B.G., as the secretary of the Secretariat for People's Defence of the Osijek Municipality, acting as the de facto , and from 7 December 1991 also the formal, commander-in-chief of the defence of the city of Osijek, ordered the first defendant, I.K., and the ... defendant Gordana Getoš ‑ Magdić to form a [military] squad of dependable and loyal persons for special reconnaissance and sabotaging tasks, which would be under his supervision. After they had formed such a squad, on a number of occasions he illegally ordered them to arrest civilians of Serbian origin, and ordered their ill-treatment and killing; the first defendant, I.K., as the squad commander, and the ... defendant, Gordana Getoš ‑ Magdić, as commander of one of the subdivisions of the squad, accepted and carried out these orders or transmitted them to the members of the squad ... The investigating judge's order accepted a request by the Osijek County State Attorney's Office to hear evidence from thirty-one persons in connection with the commission of the said criminal offences ... Furthermore, the investigation order states that some of these witnesses had been members of the same squad as the defendants ... None of the witnesses has been examined so far. Therefore, the investigating judge's conclusion that, once at large, the defendants might hinder the criminal proceedings by suborning witnesses was justified. There is therefore a legal ground for detention under Article 102 § 1 (2) of the Code of Criminal Procedure. Furthermore, in view of the manner in which the criminal offences of which the defendants were accused had been committed, and because of a reasonable suspicion that they had committed the criminal offence of war crimes against the civilian population, carrying a sentence of twenty years' imprisonment, and in view of the illegal arrests, interrogations and ill-treatment, binding of hands and mouths [of the victims] with self-adhesive tape and subsequent liquidation of a large number of civilians, the investigating judge correctly found that these factors, taken together, characterised the circumstances of the offence as particularly serious and held that detention was necessary because the legal grounds set out in Article 102 § 1(4) of the Code of Criminal Procedure had been fulfilled.” 39.     On 17 November 2006 the investigating judge of the Osijek County Court extended the detention of the applicant and four other defendants until 19 January 2007, again on the grounds set out in Article 102 § 1(2) and (4) of the Code of Criminal Procedure. This decision was upheld by a three-judge panel of the Osijek County Court on 29 November 2006. 40.     On 22 December 2006 the applicant was transferred to Osijek Prison. 41.     On 18 January and 17 February 2007 the investigating judge of the Osijek County Court again extended the detention of the applicant and four other defendants, on the grounds set out in Article 102 § 1(2) and (4) of the Code of Criminal Procedure. 42.     On 3 April 2007 the applicant requested that her detention measure be lifted. 43.     On 16 April 2007 the Osijek County State Attorney's Office filed an indictment against the applicant in the Osijek County Court, on charges of having committed war crimes against the civilian population. On the same day a three-judge panel of the Osijek County Court ordered the applicant's further detention under Article 102 § 1(4) of the Code of Criminal Procedure. The relevant part of the decision reads: “Defence counsel for the third defendant, Gordana Getoš-Magdić, relied in particular on the health ailments of the defendant and her minor child. She argued that the same aim could have been achieved by preventive measures. ... In the indictment filed by the Osijek County State Attorney ... on 16 April 2007 the defendants ... were accused of having ordered killings and ill-treatment of members of the civilian population, ... and thus of committing a criminal offence against humanity and international law – war crimes against the civilian population – as set out in Article 120 § 1 of the Criminal Code. The factual description from the indictment alleged that in November and December 1991 in Osijek, in the period when the city was being defended from the joint aggression by the YPA and the paramilitary formations of the rebel local Serbian population against the constitutional order of the Republic of Croatia, the defendants had acted contrary to Article 3 of the [Fourth] Geneva Convention relative to the Protection of Civilian Persons in Time of War, as well as Article 4 §§ 1 and 2(a), Article 5 § 3 and Article 13 § 2 of the Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), in that the first defendant, B.G., initially as the secretary of the Secretariat for People's Defence of the Osijek Municipality and from 7 December 1991 as the commander-in-chief of the defence of the city of Osijek, the second defendant, I.K., as a commander of the special [military] squad for reconnaissance and sabotaging tasks, the third defendant, Gordana Getoš ‑ Magdić, as a commander of one of the subdivisions of that squad and the fourth to seventh defendants as members of that subdivision, had participated in illegal arrests, kidnappings, inhuman treatment and killings of civilians of Serbian origin. In November and December 1991 in Osijek, they had arrested an unknown man, and bound with self-adhesive tape J.G., M.K., S.V., an unknown woman and B.G., and had taken them to the banks of the river Drava. Once there they had shot them in the head with firearms and thrown their bodies into the river. They had also taken B.L. and A.Š. to 30 Dubrovačka Street, where they had struck A.Š. all over his body, and had then taken them to the banks of the Drava, where they had shot them with firearms before throwing them into the river. They had beaten M.S., thus causing him multiple injuries, and had then tied him up with rope and killed him by throwing him from a railway bridge into the Drava. They had arrested P.L., taken him to the banks of the Drava, shot him with firearms and thrown [his body] into the river. They had arrested R.R. and taken him to 30   Dubrovačka Street and then to the banks of the Drava, where they had shot him at least twice with firearms and thrown him into the river, but he had nevertheless survived; [the defendants] had thus committed the criminal offence of war crimes against the civilian population under Article 120 § 1 of the Criminal Code. The existence of a reasonable suspicion that the defendants committed a criminal offence is a general ground for ordering and extending their detention. The said criminal offence carries at least five years' imprisonment or imprisonment for twenty years. Taken together, the above-mentioned circumstances of the offence, involving particularly brutal and ruthless actions by the defendants against the victims, constitute particularly serious circumstances, which require that the custodial measure imposed on the defendants ... be extended ... under the legal grounds set out in Article 102 § 1(4) of the Code of Criminal Procedure. ...” 44.     In an appeal of 19 April 2007 the applicant argued, inter alia , that the court had failed to give adequate reasons for the necessity of her detention, particularly in view of her difficult health and family situation. She relied on medical documentation showing that she had suffered from post-traumatic stress disorder since 1999, together with back problems and epilepsy. She also relied on medical documentation showing that her daughter, born in 1999, suffered from nightmares. 45.     On 27 April 2007 the Supreme Court quashed the impugned decision on the ground that the County Court had failed to give adequate reasons for extending the applicant's detention and that the reasons given had been contradictory. 46.     On 30 April 2007 a three-judge panel of the Osijek County Court extended the applicant's detention on the grounds set out in Article   102 §   1(4) of the Code of Criminal Procedure. The relevant part of the decision reads: “This panel finds that since the last decision on detention ordered under Article 102 §   1(4) of the Code of Criminal Procedure there have been no significant changes as regards the relevant circumstances in respect of the defendant ... Gordana Getoš ‑ Magdić. That is to say that the acts of which the defendants are accused, as regards their modus operandi and entire criminal activity, surpassed the usual manner of committing the criminal offence of war crimes against the civilian population. This is indicated by the facts in the indictment showing that the defendants had acted as an organised group, had been mutually connected and that [their acts] had all been motivated by national hatred. ...” 47.     In an appeal of 5 May 2007 the applicant reiterated her previous arguments. 48.     On 11 May 2007 the Supreme Court dismissed the appeal. The relevant part of the decision reads: “At this stage of the proceedings, now that the indictment has been lodged ... this court considers that there is a high degree of suspicion that the defendants committed the criminal offences with which they have been charged. The decision on their further detention must be based exclusively on an assessment of the elements which, judging from the facts alleged in the indictment, might lead to the conclusion that in this case ... the manner in which the offence was committed, or the fact that it was committed in particularly serious circumstances, justify detention under Article 102 §   1(4) of the Code of Criminal Procedure. The defendants are correct in their assertion that the gravity of the offence in itself does not suffice to conclude that there are particularly serious circumstances which make detention necessary. However, the first-instance court found that such circumstances did exist on the basis of the concrete facts and acts of which the defendants are accused. The criminal offence of war crimes against the civilian population may be constituted by various acts. The defendants have been charged with the gravest acts, involving illegal arrests, ill-treatment and killings of civilians who had not given any cause for such acts. All the victims were citizens of Osijek, whose security the first defendant was under an obligation to defend, a fact correctly pointed out by the first-instance court when assessing the gravity of the charges against him. The Supreme Court considers the finding of the first-instance court that the offence was committed in particularly serious circumstances to have been correct. The charges against the defendants include the fact that, on the order of the first defendant, B.G., the defendants I.K. and Gordana Getoš-Magdić formed a [military] squad for special reconnaissance and sabotaging tasks and ordered the members of the squad to illegally arrest civilians of Serbian and other national origins, torture and kill them, which orders the defendants M.S., D.K., T.V. and Z.D. carried out. Thus they, tempore criminis , organised the liquidation of the civilian population in that territory, in that they systematically arrested, detained, tortured and killed individuals. The treatment of victims was exceptionally brutal and utterly inhuman. Some of them had been severely beaten, bound with self-adhesive tape and then taken to the banks of the river Drava, where they had been executed by shots from firearms to their heads and bodies, before being thrown into the river. In the case of the victim R.R., who had survived being shot in the head and being thrown into the river, an additional order that he be killed in hospital had been issued. The court also considers that the above acts by the defendants represent particularly serious circumstances, which exceed the ordinary form of such crimes. Further detention of the defendants on the grounds provided for under Article 102 § 1(4) of the Code of Criminal Procedure is therefore justified. The defendants' assertion that the criminal proceedings could be conducted without their detention because the same purpose could be achieved by other preventive measures cannot be accepted. The aim of detention under Article 102 § 1(4) of the Code of Criminal Procedure is not to remove possible obstacles to the efficient and unhindered conduct of the criminal proceedings as is the case with the grounds for detention set out in Article 102 § 1(1), (2) and (3) of the Code of Criminal Procedure. The aim of detention under [Article 102 § 1(4) of the Code of Criminal Procedure] is that persons whose acts cause special moral reproach should not be kept at large, as this could influence the public in such a way as to diminish trust in the criminal justice system.” 49.     On 29 May 2007 the Supreme Court ordered that the further proceedings be conducted before the Zagreb County Court. 50.     On 11 July 2007 a three-judge panel of the Zagreb County Court extended the applicant's detention on the grounds set out in Article 102 §   1(4) of the Code of Criminal Procedure. That decision was quashed by the Supreme Court on 27 July 2007 because defence counsel had not been duly summoned to the hearing on the defendants' detention. 51.     On 2 August 2007 a three-judge panel of the Zagreb County Court extended the applicant's detention. That decision was upheld by the Supreme Court on 21 September 2007. On 23 November 2007 the Zagreb County Court extended the applicant's detention. That decision was upheld by the Supreme Court on 12 December 2007. All the courts concerned relied on the particularly serious circumstances in which the applicant had allegedly committed the offence, on the basis of Article 102 § 1(4) of the Code of Criminal Procedure. 52.     On 13 December 2007 the applicant lodged a request for the custodial measure against her to be lifted. She relied, inter alia , on Article 5 of the Convention, arguing that the courts ordering and extending her detention had not made any relevant assessment as to her personal contribution to the offences with which she had been charged or to her personal situation, in particular her health. The request was dismissed by the Zagreb County Court on 14 December 2007. 53.     On 12 February 2008 the Zagreb County Court extended the applicant's detention and at the same time dismissed her request for the custodial measure to be lifted. The relevant part of the decision reads: “A reasonable suspicion that the third [the applicant], fifth and sixth defendants committed the criminal offences defined in the indictment still exists, this being a general statutory requirement under Article 102 § 1 of the C[ode of] C[riminal] P[rocedure] for extending the detention. The third, fifth and sixth defendants have been indicted for criminal offences against humanity and international law – war crimes against the civilian population – under Article 120 § 1 of the Criminal Code, carrying a minimum of five years' imprisonment or imprisonment for twenty years; this is one of the criteria for detention under Article 102 § 1(4) of the CCP. Furthermore, the third, fifth and sixth defendants have been indicted for the gravest acts which could possibly be committed against the civilian population, namely illegal arrests, torture and killings of civilians. The civilians were tortured and killed for no reason and the motive was national hatred. The charge against the third defendant, Gordana Getoš-Magdić, states that she, together with the second defendant, I.K., on the order of the first defendant, B.G., formed a [military] squad for special reconnaissance and sabotaging tasks and illegally arrested civilians of Serbian and other national origins, tortured and killed them, and transmitted such orders to their subordinates in the said squad... The victims were severely beaten and then taken to the banks of the river Drava, bound with self-adhesive tape and shot in the head, their bodies then being thrown into the river. A further charge against the third defendant, Gordana Getoš-Magdić, states that, together with the sixth defendant, T.V., and the seventh defendant, Z.D., she took B.L. from his family house ..., arrested him and detained him in a house at 30 Dubrovačka Street. ... In respect of the victim R.R., who had been shot in the head on the orders of the first defendant, B.G., but nevertheless survived, it is alleged that the third defendant, Gordana Getoš-Magdić, ordered that he be killed in hospital. The above descriptions of the acts of the third, fifth and sixth defendants contain a number of aspects which, by their nature and intensity, can be characterised as particularly serious circumstances of the offence; for this reason, detention under Article 102 § 1(4) of the CCP remains necessary. ... Judging from the gravity of the offences with which they are charged and the sentences that could be expected on the basis of the information in the case file, the length of time for which the third, fifth and sixth defendants have so far been detained does not appear disproportionate to a degree that is decisive in ordering their further detention. The request of the third defendant Gordana Getoš-Magdić that her detention be replaced by house arrest is not well-founded, because the measure of house arrest has not been prescribed as an alternative for detention under Article 102 § 1(4) of the CCP. Rule 3 of the Rules on House Arrest (Official Gazette no. 3 of 7 January 2008) provides that the freedoms and rights of a detainee under house arrest may be restricted to the extent needed for the fulfilment of the purpose for which house arrest has been ordered; to prevent the detainee from absconding; to prevent the repetition, completion or commission of a criminal offence he or she has been threatening to commit; and to prevent communication between the detainee and other persons, save for those he or she lives with or who provide him or her with the necessary means of subsistence. Since the allegations in the request for the detention measure to be lifted are not of such a nature as to justify the lifting of that measure, in the opinion of this panel the conditions for ordering an alternative preventive measure have not yet been fulfilled, and the request has to be dismissed ...” 54.     In an appeal of 14 February 2008 the applicant reiterated her arguments from her previous request for the custodial measure imposed on her to be lifted. On 22   February 2008 the Supreme Court dismissed the applicant's appeal. It reiterated its previous conclusions as to the gravity of the offence and the particularly serious circumstances in which the offence was committed, and further held as follows: “The acts of the defendants as described above show a high degree of ruthlessness, brutality and cruelty towards civilians, which resulted in the grave consequence of the killing of these persons. Therefore, this appellate court finds that such acts by the defendants went significantly beyond the usual acts and consequences of such offences and, in their intensity and nature, show that the offence was committed in particularly serious circumstances, such that detention under Article 102 § 1(4) of the CCP remains necessary. The arguments of the defendant Gordana Getoš-Magdić ... that the facts in the indictment had not been proven are not of decisive importance for extending her detention, because it is sufficient for there to be a relevant degree of reasonable suspicion; this follows from the indictment and the evidence so far presented, although the final assessment of all evidence and the defendants' defence, and the subsequent assessment of whether the relevant facts have or have not been proven in respect of the criminal offences at issue, is in the hands of the trial panel ... Contrary to the arguments advanced by the defendant Gordana Getoš-Magdić, the provisions of the Code of Criminal Procedure concerning detention do not run counter to the Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention'), since Article 5 of the Convention provides for the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence of fleeing after having done so, and this is not at odds with Article 102 § 1 of the CCP. The state of health of the defendant Gordana Getoš-Magdić does not preclude the existence of the statutory ground for extending her detention, because any necessary medical care could be provided in prison or, exceptionally, outside the prison. Likewise, any necessary medical, psychological or other assistance can be given to her child in suitable institutions, staffed by appropriate experts. Contrary to the objections of the defendant Gordana Getoš-Magdić ..., the preventive measures under Article 90 of the CCP could not fulfil the aim of extended detention [under Article 102 § 1(4) of the Code of Criminal Procedure], nor can this measure be replaced by house arrest, because Article 102 of the CCP does not provide for such an option.” 55.     On 25 March 2008 the applicant lodged a constitutional complaint, arguing, inter alia , that the duration of the investigation and of her detention had exceeded a reasonable time and that her detention could no longer be extended solely on the ground of the gravity of the charges against her. 56.     On an unspecified date the applicant again lodged a request for the custodial measure against her to be lifted. 57.     On 22 April 2008 a three-judge panel of the Zagreb County Court extended the applicant's detention and dismissed her request. It reiterated its previous reasoning from its decision of 12 February 2008. 58.     In an appeal of 26 April 2008 the applicant again relied on her family and state of health as grounds for lifting the custodial measure. On 7   May 2008 the Supreme Court dismissed the appeal. 59.     On 29 May 2008 the Constitutional Court declared the applicant's constitutional complaint of 25 March 2008 inadmissible, on the ground that the impugned decisions had ceased to exist since, in the meantime, a fresh decision extending the applicant's detention had been issued. 60.     In a constitutional complaint of 9 June 2008 the applicant reiterated her arguments from her previous constitutional complaint of 25 March 2008. 61.     On 4 July 2008 a three-judge panel of the Zagreb County Court extended the applicant's detention on the same grounds as before. On 28   July 2008 the Supreme Court upheld that decision. 62.     The applicant lodged a constitutional complaint in which she reiterated her previous arguments. 63.     On 17 September 2008 the Constitutional Court accepted the constitutional complaint and quashed the decisions of the Zagreb County Court of 4 July 2008 and of the Supreme Court of 28 July 2008, on the ground that the lower courts had failed to apply the principle of proportionality when assessing the necessity and appropriateness of the applicant's further detention. It further held as follows: “Owing to their particular gravity and the possible public reaction, certain criminal offences may cause public unrest which could justify detention. In the view of this court, when assessing whether further detention of an applicant is justified under the grounds set out in Article 102 §   1(4) of the CCP, the gravity of the offence in itself does not suffice but, in addition, the [above] ground for detention must exist in reality. The extension of detention should not amount to the anticipated prison term. In the court's opinion, the significance of the initial grounds for the applicants' detention, in view of the passage of time and the fact that the applicants have so far been detained for almost two years, does not suffice to justify further extension of their detention. The Constitutional Court considers that in the present case (apart from the fact that the detention has already lasted too long) the public interest in extending the applicants' detention during the criminal proceedings against them – in which their guilt for the alleged criminal offences has yet to be decided – does not carry more weight than the right of personal liberty guaranteed by the Constitution and the European Convention on Human Rights. ...” The applicant was released on the same day. II.     RELEVANT DOMESTIC LAW 64.     The relevant part of the Croatian Constitution ( Ustavni sud Republike Hrvatske , Official Gazette nos. 41/2001 and 55/2001) reads: Article 140 “International agreements concluded and ratified in accordance with the Constitution and made public, and which are in effect, are incorporated into Croatian law and are, in terms of legal effect, above statutes. ...” 65.     The relevant provisions of the Code of Criminal Procedure ( Kazneni zakon Republike Hrvatske , Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006) read as follows: