CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 juin 2011

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CROATIA   (Application no. 56185/07)                 JUDGMENT     STRASBOURG   21 June 2011     FINAL   21/09/2011     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of Mađer v. Croatia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Anatoly Kovler, President,   Nina Vajić,   Peer Lorenzen,   Elisabeth Steiner,   Khanlar Hajiyev,   Julia Laffranque,   Linos-Alexandre Sicilianos, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 31 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 56185/07) 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 Josip Mađer (“the applicant”), on 10 December 2007. 2.     The applicant was represented by Mr M. Umićević, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3.     On 19 October 2009 the President of the First Section decided to communicate to the Government the complaints concerning: both the substantive and procedural aspects of Article 3; the complaints under Article   5 §§ 1, 2 and 3; as well as the complaints under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1950 and is currently serving a prison term in Lepoglava State Prison. 5.     The documents in the case-file reveal the following facts. 1.     The applicant’s arrest and police questioning 6.     On 1 June 2004 at 6 a.m. six police officers from the Zagreb Police Department came to the applicant’s house in Križ and asked the applicant and his wife to accompany them. The applicant and his wife complied and were taken by police car to the Zagreb Police Department ( Policijska uprava zagrebačka ). 7.     Shortly after 6 a.m. they arrived at the Zagreb Police Department in Heinzlova Street and the applicant was placed in the interview room. 8.     A polygraph test of the applicant was carried out on 1 June 2004 between 11 a.m. and 6.15 p.m. The file does not contain documents which could clarify the applicant’s whereabouts or treatment at the police station during the initial twenty-five hours. It is undisputed, however, that the applicant remained at the police station. 9.     A report on the applicant’s arrest drawn up by police officers states that the applicant was formally arrested at 7 a.m. on 2 June 2004 on suspicion of murdering one V.M., and was taken into police custody for twenty-four hours under Article 97 of the Code of Criminal Procedure (see “Relevant domestic law” below). The applicant was informed of his right to a defence lawyer and lawyer E.Z. was contacted on 2 June 2004 at 10 a.m., but did not come to the police station. The applicant signed the report without making any comments. 10.     In the afternoon of 3 June 2004 the dead body of V.M. was found in a vineyard near the town of Kutina, which came under the jurisdiction of the Sisak County Court. An investigating judge of the Sisak County Court carried out the on-site inspection between 12.30 p.m. and 3.30. p.m. 11.     According to the official record of the applicant’s police questioning in the Zagreb Police Department by police officer S.I., lawyer P.B. was called by the police at 11 p.m. on 3 June 2004 and arrived at the Zagreb Police Department at ten past midnight on 4 June 2004. The record of the questioning states that the questioning commenced at 25 minutes past midnight on 4 June 2004 and was completed at 2.30 a.m. the same day, with lawyer P.B. being present throughout. According to this record the applicant confessed that on 3 May 2004 during a fight with V.M. he had shot and killed the latter and then buried his dead body in a vineyard. The written record was signed by both the applicant and lawyer P.B. and also by S.I. and a typist. 2.     Investigation and trial 12.     On 4 June 2004 the Zagreb Police Department filed a criminal complaint against the applicant with the Zagreb County State Attorney’s Office and the investigating department of the Zagreb County Court, on charges of murdering V.M. The same day at 6.30 p.m. the applicant was brought before an investigating judge of the Zagreb County Court, in the presence of a defence lawyer chosen by the applicant who submitted a power of attorney to the investigating judge. The applicant decided to remain silent and merely stated that he had not called counsel P.B. to the Police Department. 13.     After being heard by the investigating judge, the applicant was transferred to Zagreb County Prison. The medical record from the prison does not indicate any injuries on the applicant’s arrival. 14.     On 7 June 2004 the applicant was again brought before the investigating judge, in the presence of his chosen counsel, and decided to remain silent. The investigating judge then ordered that the applicant be placed under investigation for murder. The applicant was placed in detention on remand. 15.     On 13 July 2004 the investigating judge ordered a psychiatric examination of the applicant in order to ascertain his ability to understand his actions at the time when the criminal offence at issue was committed and his mental state during the police questioning. The report drawn up on 21 July 2004 found that the applicant was not suffering from any disorder capable of adversely affecting his capacity to answer the questions and that during the police questioning he had been fully conscious and mentally competent. The psychiatrist who drew up the report interviewed the applicant from 15 to 20 July 2004 and also based her conclusions on the police record of the applicant’s questioning. The psychiatric report was communicated to the applicant’s defence counsel. 16.     On 14 July 2004 an officially appointed lawyer, M.K., was assigned to the applicant, since meanwhile his chosen lawyer ceased to represent him. 17.     On 29 July 2004 the applicant was committed for trial on a charge of murder in the Velika Gorica County Court ( Županijski sud u Velikoj Gorici ). 18.     On 4 August 2004 the applicant asked the Velika Gorica County Court to serve the decision of 30 July 2004, ordering his continued detention, on his officially appointed counsel, M.K. He also complained that he had not yet seen his officially appointed counsel. He further alleged that as early as 1 July 2004 he had asked to consult the case file and that his request had not been answered. 19.     On 13 August 2004 the Velika Gorica County Court ordered Zagreb County Prison to bring the applicant to the Velika Gorica County Court on 19 August 2004 so that he could consult the case file. 20.     On 22 August 2004 the applicant asked the Velika Gorica County Court to allow him to consult the case file because on 19 August, when he had been brought to the Velika Gorica County Court, he had been given only thirty minutes to consult the file. This had not been sufficient to enable him to read even one third of the documents in the file. On 1   September 2004 the Velika Gorica County Court ordered Zagreb County Prison to bring the applicant to its premises on 6 September 2004. 21.     On 27 August 2004 the applicant complained to the judge responsible for the execution of sentences who was visiting the prison that he could not properly consult the case file. On 9 September 2004 the Velika Gorica County Court again ordered Zagreb County Prison to bring the applicant on 16 September 2004 to the premises of that court so that he could consult the case file. 22.     On 19 October the applicant again asked the County Court for permission to consult the case file. On 27 October 2004 the presiding judge informed the applicant that his request had been refused since he had already consulted the case file twice. 23.     The first hearing before the trial court was held on 8 December 2004 in the presence of the applicant and his counsel M.K. The applicant pleaded not guilty and made no other comments. 24.     On 9 December 2004 the applicant asked the Velika Gorica County Court to order another psychiatric examination which would establish whether on the morning of 4 June 2004 he had known what he was signing at the police station (see § 11 above). He asserted that he had learned about the content of the statement he had supposedly made to the police only when he had consulted the case file on 16 September 2004. He alleged that at that time he had been suffering from diabetes and high blood pressure and had not been given his medication, had not been given any food for twenty hours and had not slept from 6 a.m. on 1 June 2004 until 11 p.m. on 4 June 2004. During the entire police questioning he had been forced to sit on a chair and the record of his alleged statement which he had signed had not been read out loud to him. He could not read it himself because he had not had his glasses. Furthermore, he alleged that he had been ill-treated and still had traces of injuries and asked to be seen by a medical doctor. 25.     The applicant’s wife decided to avail herself of the right not to testify in the criminal proceedings against the applicant. 26.     A hearing was again held on 28 December 2004 in the presence of both the applicant and his counsel. The psychiatrist who had written the report of 21 July 2004 (see § 16 above) on the applicant during the investigation gave her oral evidence. She stated, inter alia , that: “... the changes in blood pressure and blood sugar levels had no effect on the defendant’s ability to understand his actions. Likewise, these changes, if they happened at all, had no effect on his questioning by the police. If such changes were present, they were of a mild nature. Had there been any drastic changes, they would have caused altered levels of consciousness and possibly unconsciousness; no such occurrence was recorded in the case file. My opinion is that the statement given to the police is sound and that there are no indications that the defendant suffered from any mental disturbances during questioning.” 27.     At the end of the hearing the applicant’s oral request for a further psychiatric examination aimed at establishing his mental state during the police questioning was rejected as being aimed at delaying the proceedings, since these issues had already been addressed by the psychiatrist at the hearing. 28.     Further hearings were held on 3 February and 19 May 2005 in the presence of both the applicant and his counsel. 29.     At the subsequent hearing held on 20 June 2005 the applicant, in the presence of his counsel, presented his defence. He denied the charges against him. As regards his questioning by the police he submitted that he remembered having been at the Zagreb Police Department but that he could not remember presenting his defence. He stated further that a lawyer had not been present although he had repeatedly asked the police officers for the questioning to be conducted in the presence of a defence lawyer. He had the telephone numbers of several lawyers listed on his mobile phone but had not been allowed to call any of them. At that time he had problems with his heart, high blood pressure and high levels of sugar and cholesterol in his blood. He remembered that he had signed something but had not known what it was. He had learned about it only on 16 September 2004 when he had consulted the case file. 30.     When a power of attorney given to the lawyer P.B. was shown to the applicant he confirmed that it contained his signature. 31.     He then proceeded to state that he remembered answering questions by the police officers, but could not remember what he had said. The police officers had insisted that he confess. He confirmed that the written record of the police questioning contained his signature. However, he also stated that he could not have read the documents he had signed at the police station because of his poor eyesight since during the police questioning he had had no glasses. They had been brought to him in prison on 14 June 2004. 32.     With regard to the lawyer P.B., none of the police officers present had told him who that person was and P.B. had not addressed him at all. The only persons present at the police questioning had been the police officers and a young woman who typed the record of the questioning. 33.     At the hearing held on 5 July 2005 the County Court heard evidence from lawyer P.B. The relevant part of his deposition reads as follows: “I agreed to be on the list of lawyers kept by the police who are willing to be called when suspects are being questioned by the police and such questioning might be used as evidence in the criminal proceedings. I don’t recall the exact date, but I remember that it was in 2004, the weather was warm and I was called sometime after midnight to go to the Zagreb Police Department in Heinzlova Street. I was told that a person suspected of murder was to be questioned and that I was needed as his defence lawyer. When I arrived I saw the accused immediately sign a power of attorney for me to represent him before the police. However, the police officers told me that the defendant had already been questioned and had confessed. I saw a handwritten record of the defendant’s deposition and it was then dictated to the typist. That was the defendant’s entire statement. He did not say anything in my presence. I only asked him whether he was sorry and whether the police had treated him correctly, that is to say whether any force had been used. The defendant denied that there had been any use of force. I did not read myself the handwritten record but, since I was sitting next to the police officer, as was the defendant, I saw that the officer was dictating from that handwritten record to the typist, who was typing on a computer. I was not served with a copy of the typed record of the defendant’s questioning because it is not the custom. Although the defendant had been questioned before my arrival I raised no objections in that respect. I would like to clarify that when the handwritten record was dictated to the typist, the police officer would sometimes repeat a question and ask the defendant whether it had truly been as he was dictating; neither the defendant nor I raised any objections. I did not ask the defendant any questions as regards the circumstances of the critical event because I was told that he had confessed, and he repeated his confession during further questioning when the written record was made. As regards the defence lawyer’s question, I may say that I did not speak with the defendant in private because there was no need for that since we all talked together, that is to say in the presence of the police officers. As to the defence lawyer’s further question, I did not inform the defendant of his rights, such as his right not to present a defence or answer any questions, because it was too late for that since he had already been questioned. The police officers gave him no information either. I would add that the defendant looked very tired and after the questioning in my presence, which lasted for an hour, he fell asleep at the table where he was sitting during the questioning, after he had eaten a sandwich and drunk a juice. I do not remember whether he had glasses. In reply to the question put by a member of the panel, I can say that the defendant raised no objections either as regards the record dictated by the police officer in his presence or as regards the police treatment when I asked him about it. As regards the question put by the defendant, I do not know what time he was taken to the police station and what time his questioning started.” 34.     The applicant added that during the entire police questioning he had been half asleep and that the questioning had lasted the whole afternoon and evening before the arrival of lawyer P.B. 35.     The trial court then issued a decision ordering that the record of the applicant’s police questioning be removed from the case file on the ground that the applicant had been questioned by the police without the presence of a defence lawyer, although the written record of the questioning “had been drawn up in such a way as to suggest that the defence lawyer was present.” This decision was quashed by the Supreme Court, on an appeal by the State Attorney, on 28 July 2005. The Supreme Court found that all relevant circumstances surrounding the applicant’s police questioning had not been established. 36.     On 1 September 2005 the applicant asked the Velika Gorica County Court for permission to consult the case file before the hearing scheduled for 26 September 2005 because some fresh witnesses were supposed to give evidence. The applicant also stated that he had had no contact with his appointed defence lawyer. This request was not answered. 37.     At the hearing held on 26 September 2005 a police officer, S.I., who had questioned the applicant, gave his evidence. The relevant part of the record reads: “... his questioning as a suspect started on 4 June 2004. I conducted it and M.B. recorded it in writing. The questioning started some time after midnight because we were waiting for a defence lawyer. Therefore, it is wrongly stated in the written record of the questioning that it started at 12.25 p.m., because it started 25 minutes after midnight. Before the defence lawyer arrived I had talked to the accused and had made handwritten notes. The accused agreed to repeat what he had told me in the presence of his counsel. Therefore, I asked him to call a lawyer of his own choosing but the lawyer he chose was not available because he was away. He was then asked to choose a lawyer from our list of lawyers and he chose P.B., who came shortly after midnight and certainly before the questioning of the accused started. When the lawyer arrived he was able to talk in private with the accused and after that the questioning started. I emphatically confirm that the accused chose lawyer P.B. from the list of lawyers and that that lawyer was not called by the police. I remember that when the lawyer came into the room I told the accused that this was the lawyer he had chosen and I let them talk in private and after that the questioning started. When I talked informally to the accused and made my handwritten notes the typist was not present. She came in at the same time as the lawyer and when the formal questioning started. When the formal questioning started I did not dictate to the typist from my handwritten notes, but the accused repeated his statement and answered the questions. The accused gave his own account and I also asked him questions and he gave answers. I think that the defence lawyer also asked a few questions. As far as I remember there were no objections on the part of the accused or the lawyer, either during or after the questioning. I do not recall talking to the lawyer when he arrived at the police station, but I do not exclude that possibility. It is also possible that one of my colleagues may have talked to him. During questioning the accused appeared completely composed and I had the feeling that after giving his statement he felt relieved. In reply to the question by defence counsel I can say that after the defence lawyer arrived and before the accused started to present his defence, he had been informed of his right to remain silent and his right to a defence lawyer. The questioning was conducted in the presence of the typist M.B. and myself, but it is possible that some of my colleagues may have entered and exited the room. As far as I can recall the questioning lasted for about two hours, but I am not sure about that because a lot of time has elapsed since. I think that a copy of the written record was given to lawyer B., but I am not sure. In answer to the question by the presiding judge I can say that during the questioning in the presence of the defence lawyer I did use my handwritten notes but I did not dictate on the basis of those notes without questioning the accused again. The accused again gave an account of the entire incident and I asked questions on the basis of my handwritten notes. I am sure that during the questioning the accused was composed and did not appear sleepy and did not fall asleep. It is possible that he was yawning because it was quite late. In answer to the question by the accused I can say that neither I nor anyone else ill-treated him. At no time did the accused stay alone in the room; there were always some of the police officers present. After the questioning the written record was shown to the accused so that he could read it. I think that he only glanced at it and signed it. The defence lawyer also signed the record after the questioning. I do not remember whether there were any objections to the written record, although none was mentioned in the record.” 38.     After that the typist M.B. gave her evidence. The relevant part of the record reads as follows: “... on the material occasion I was asked to go to the General Crimes Division to type the written record of the questioning of the suspect Josip Mađer. When I arrived I found the accused, my colleague S.I. and one lawyer ... Everything had been made ready for dictating and questioning. I remember that [police officer S.]I. informed the accused of his right to have defence counsel present during the questioning. It is possible that he also informed him of his other rights, but I do not remember that. I remember that during questioning the accused gave his statement and [police officer S.]I. dictated that statement to me. I saw that S.I. had his handwritten notes. I remember that [S.]I. asked the accused questions and the accused gave answers which [S.]I. dictated to me. I do not remember now how long the questioning lasted, possibly for about three hours. It is the usual practice that the written record is signed. I remember that I signed it, but I do not remember if anyone else also signed it. Because of the length of time which has elapsed I do not remember whether I or someone else signed the record. In answer to the question by the defence lawyer I can say that I do not remember whether a copy of the written record was given to the defence lawyer. I do remember that the lawyer was given a power of attorney but I cannot say anything more precise about it.” 39.     The same day the trial court refused a request by the defence for the record of the applicant’s questioning by the police to be excluded from the case file. The relevant part of the decision reads as follows: “After hearing evidence from the witnesses P.B., S.I. and M.B. this panel has concluded that the written record of the questioning of the accused by the police on 4   June 2004 was drawn up after the accused had been questioned in the presence of his defence lawyer P.B., a lawyer practising in Zagreb, and after the accused had been informed [about his rights] under Article 225 §§ 2 and 3 of the Code of Criminal Procedure, and that as such [the statement given to the police] can be used as evidence in the criminal proceedings, as provided for by Article 177 § 5 of the Code of Criminal Procedure. Therefore, there is no statutory ground for the exclusion of that record from the case file. This court assessed the evidence given by witness S.I. who, as a police officer, conducted the questioning of the suspect Josip Mađer, as entirely reliable because his statement was convincing and realistic. He remembered the details of the questioning such as the fact that the suspect was asked to call a lawyer of his own choice, which the defendant attempted to do, only to find that the lawyer was not available. This is supported by the statement of the accused that he had the telephone numbers of several lawyers listed on his mobile phone, a statement which contributes to the credibility of the witness evidence. The evidence of that witness shows that the accused repeated his statement in the presence of a lawyer, after he had been informed of his right to present his defence or to remain silent and of his right to a lawyer, after he had previously been questioned without a lawyer, when handwritten notes were made. [The accused] answered questions by S.I. and [S.]I. used his handwritten notes. The evidence [given by witness S.I.] is corroborated by the evidence given by M.B. when she said that the accused had given his statement in the presence of a defence lawyer, which was then dictated to her by [S.]I., as well as answers to his questions. This court has no reason not to trust the evidence given by this witness because she, as an official who simply typed the written record, has no interest in the outcome of these criminal proceedings and no motive for giving evidence against the accused. The above witness evidence clearly shows that neither the accused nor the defence lawyer raised any objections, either during or after the questioning, as regards the manner of the questioning of the accused or the written record. This is also confirmed by the evidence given by P.B. The court has not put trust in the evidence given by witness P.B. because it is illogical, unrealistic and obviously aimed at attempting to exculpate the accused. It is not logical that P.B., as a lawyer and defence counsel of a defendant accused of a serious criminal offence, would not raise any objections as to the manner of questioning and recording before the police if such questioning had been conducted in contravention of the law, because his main duty as a defence lawyer was to ensure the lawfulness of the police procedure and the protection of the rights of the accused. In his evidence at the trial, when he was no longer the accused’s defence lawyer, he tried to call into question the lawfulness of the written record of the accused’s confession because, as a professional, he is aware of the significance of that record for the decision on the accused’s guilt. The above undoubtedly shows that the accused was questioned by the police in the presence of a defence lawyer. His statutory rights were ensured and a written record was drawn up which the accused and the defence lawyer both signed without raising any objections. The said record can therefore be used as evidence in the criminal proceedings under Article 177 § 5 of the Code of Criminal Procedure.” 40.     On 11 October the defence lawyer, and on 13 October 2005 the applicant himself, lodged appeals against the decision of 26   September 2005. They argued that the applicant had been questioned by the police between 1 June 2004 at 6 a.m. and 4 June 2004 without the presence of his defence lawyer. They now argued that during that time he had not been allowed to sleep and had not been given any food or his medication. When finally the police officer dictated his alleged statement to the typist he had been asleep at the table. As to the presence of P.B., they argued that he had not been the applicant’s chosen lawyer but had been called by the police from the list of lawyers who had agreed to answer urgent calls by the police, as P.B. himself had stated. Furthermore, they pointed out that P.B. had said that he had been called by the police after midnight, whereas the written record of the questioning noted that he had been called at 11 p.m. and had arrived at ten minutes past midnight and that the questioning had started at twenty-five minutes past midnight. The questioning of the applicant by the police had ended at 2.30 a.m. Therefore, the lawyer had been present for about an hour, which would certainly not have been sufficient for the applicant to give his full statement and have it typed, since the written statement contained seven and a half pages. They further pointed to the part of P.B.’s statement according to which it was the usual practice of the Zagreb police to call defence lawyers after the questioning of suspects had already been completed. They also stressed that no copy of the written record of the applicant’s statement to the police had been given either to the applicant or to the defence lawyer. 41.     On 3 November 2005 the Supreme Court dismissed the appeals. The relevant part of the decision reads as follows: “... the evidence from the case file, and in particular the written record of the questioning of the accused on 4 June 2004, show that the first-instance court correctly found that the accused had been questioned by the police in the presence of a defence lawyer to whom he had previously issued a power of attorney, and that his statutory defence rights were respected. A written record was drawn up to this effect, which was signed by the accused and the defence lawyer without any objections. The fact that the questioning of the accused was in accordance with the law was confirmed by the witnesses S.I., the police officer who questioned the accused and M.B., who typed the written record of the questioning. The first-instance court rightly accepted these witnesses’ statements as truthful because they were logical and detailed, whereas it rightly did not believe the statement given by witness P.B. because it contradicted his own actions as a defence lawyer who was present during the questioning and signed the written record of it without raising any objections, and whose statement is obviously intended to favour the accused. The allegations in the appeal that the defendant was not allowed to choose his defence lawyer but that the latter was chosen by the police is unfounded in view of the evidence given by witness S.I. that he offered the accused the possibility of choosing a defence lawyer, which the latter attempted to do. The chosen lawyer had not been available, so he then chose P.B. as his defence lawyer from the list of lawyers and issued a power of attorney to him. This procedure is in accordance with Article   177   §   5 of the Code of Criminal Procedure, which provides that where the circumstances show that a chosen defence lawyer will be unable to arrive within three hours, the police should enable the suspect to choose another lawyer from the list of lawyers on duty for each county, compiled and submitted by the Croatian Bar Association to the police departments and county courts. ... The allegation by the accused that the defence lawyer was not present during his questioning and that the questioning took place before the arrival of the defence lawyer and was recorded by the police and dictated for the written record in the lawyer’s presence, is also unfounded. The notes made by the police are handwritten notes made by witness S.I. in his capacity as a police officer. He collected information from the suspect in accordance with Article 177 § 5 of the Code of Criminal Procedure, after which he waited until the arrival of the defence lawyer. The witness said that he used his handwritten notes during the questioning of the accused in the presence of the defence lawyer, which is not against the law, and that the suspect repeated his defence and answered the questions. ...” 42.     After the final hearing was held on 16 January 2006 the trial court, relying mainly on the applicant’s confession to the police, found him guilty of aggravated murder and sentenced him to twenty-eight years’ imprisonment. At the same time his detention was extended. 43.     On the same day the applicant asked that a new defence lawyer be assigned to him. He alleged that his officially assigned counsel had visited him only once, on 2 May 2005, the 333 rd day of his detention, and then only to ask for money. 44.     On 18 January 2006 the applicant asked the Velika Gorica County Court for permission to consult the case file. On 22 January 2006 he asked that lawyer M.U. be allowed to consult the case file and visit him in prison so that he could lodge an appeal. On 13 February 2006 he informed the court that he had received the first-instance judgment and needed the assistance of a lawyer to file an appeal. 45.     On 15 February 2006 the presiding judge informed the applicant that his requests of 18 and 22 January 2006 to consult the case file had been granted and fixed for 21 February 2006 with permission to consult the case file for two hours. The presiding judge refused the applicant’s request of 13   February 2006 for another defence counsel to be officially assigned to him, on the ground that the conditions for relieving the appointed counsel of his duties had not been met. The applicant was advised that he was free to appoint counsel of his own choosing. 46.     On 19 February 2006 the applicant reiterated that he did not wish to be represented by lawyer M.K. On 20 February he again complained that lawyer M.K. had not visited him in prison and that he had had no contact with him. 47.     On 21 February 2006 M.K. lodged an appeal against the first ‑ instance judgment on the applicant’s behalf. He argued that the judgment was based on the applicant’s confession given to the police without a defence lawyer being present. He reiterated all the previously stated arguments in that respect. 48.     On the same day the presiding judge allowed the lawyers M.U., LJ.P. and S.E. to visit the applicant in prison. On 23 February 2006 M.U. submitted a power of attorney to represent the applicant. 49.     On 27 February 2006 the applicant lodged an appeal against the first-instance judgment. He analysed in detail the outcome of the proceedings and also reiterated his previous allegations regarding his questioning at the police station, repeating his arguments from appeals of 11   and 13 October 2005 (see § 42 above). 50.     On 15 March 2006 M.U. also lodged an appeal reiterating the same arguments regarding the applicant’s police questioning. 51.     On 5 April 2006 the presiding judge relieved lawyer M.K. of his duties. 52.     On 14 September 2006 the Supreme Court upheld the first-instance judgment. The relevant part of the appeal judgment reads as follows: “The accused’s defence rights were not violated because an infringement of Article 367 § 3 of the Code of Criminal Procedure can occur only during the trial and preparations for the trial, while what is complained of here are measures taken at the pre-trial stage of the criminal proceedings. Irrespective of the above, the right of the accused to a defence lawyer has not been violated. The case file shows that immediately after the accused had been arrested, the police officers, at his request, called lawyer E.Z., who could not come because he was abroad, and then lawyer V.M., who also did not come. The police then asked the accused to choose a lawyer from the list of duty lawyers submitted by the Croatian Bar Association for each county. The accused agreed and issued a power of attorney to lawyer P.B. Thus the requirements of Article 177 § 5 of the Code of Criminal Procedure were satisfied and it cannot be said that the applicant’s right to a lawyer of his own choice was denied. Whether that lawyer, who was present at the questioning and signed the written record without any objections, truly provided the accused with adequate legal assistance in accordance with the rules of the Bar Association and its code of ethics, is a question of the lawyer’s professional beliefs and ethics and not a matter for discussion by this court as regards the issue of the lawfulness of the evidence consisting of the defence presented by the accused before the police in the presence of his chosen defence lawyer. Further allegations in the appeal lodged by the lawyer M.U. concerning the supposed ill-treatment of the accused by the police and refusal to provide him with food and drink, which the accused interpreted as mental and physical pressure, have no basis either in the statements of the officials S.I. and M.B. or in the statement of the lawyer P.B., who said that the accused had eaten a sandwich and drunk a juice in front of him. Furthermore, the accused’s mental and physical state at the time of the police questioning was assessed by a psychiatrist, D.K.K., who concluded that, on the basis of the written record and the manner in which the accused expressed himself, nothing indicated that he had any mental problems during the questioning ... Hence, the allegations in the appeal that some kind of pressure or similar means were used during the accused’s police questioning in order to make him confess to the criminal offence are unfounded.” 53.     On 3 July 2007 the applicant lodged a constitutional complaint, arguing that his right to a lawyer had been violated throughout the proceedings, and in particular during his questioning by the police, and that his alleged confession to the police had been obtained unlawfully. He also complained that from 1 to 4 June 2004 he had been kept at the police department, all the time sitting on a chair without sleep and food and that when he had arrived at Zagreb Prison he had had injuries on his body. 54.     The applicant’s constitutional complaint was dismissed by the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 11 March 2009. The court found that the applicant had benefited from all the guarantees of a fair trial throughout the criminal proceedings against him and that there was no evidence to support the allegation that the lengthy questioning by the police had reduced the applicant to a state of physical and mental exhaustion capable of leading him to falsely incriminate himself. The relevant part of the decision reads as follows: “The applicant complains of a lack of legal assistance during his questioning by the police between 2 and 4 June 2004 (the constitutional complaint wrongly gives the date as 1 June 2004 since the documents in the case file show that the applicant was arrested on 2 July 2006 at 7 a.m.). The second-instance judgment established that the choice of lawyer P.B. was not imposed on the applicant. Immediately after his arrest, and at the applicant’s request, the police officers attempted to inform lawyer E.Z., but the latter was absent, travelling abroad. After that the applicant engaged lawyer V.M., who did not arrive either. The police then asked the applicant to choose a lawyer from the list of lawyers on duty for each county, compiled and submitted by the Croatian Bar Association, and he signed a power of attorney in respect of lawyer P.B. Thus ... the applicant was not denied the right to a lawyer of his own choosing. Whether the lawyer thus chosen truly offered a satisfactory professional service to the applicant in accordance with the Croatian Bar Association Statute is a question of the lawyer’s professional ethics and not a matter to be assessed in the appeal proceedings, as correctly stressed by the Supreme Court. ... As regards the applicant’s allegations that he was ill-treated (mentally and physically by being deprived of food and drinks and otherwise) by the police officers at the time the statement of his confession was drawn up ... the second-instance court found that these allegations had no basis in the statements of the police officers or the statement of lawyer P.B., who had been present at the time. The mental and physical condition of the applicant at the time he was questioned by the police was assessed by the psychiatric expert, who concluded that nothing in the written record [of the applicant’s questioning by the police] and the manner of his expression, as recorded, indicated that the applicant was suffering from a mental disorder or altered state of consciousness. Furthermore, that court established that the in-depth six-page statement by the applicant contained numerous details, names, dates and locations which could be known only to a person who was speaking from his own experience. This detailed statement is corroborated by other facts established during the proceedings. Furthermore, it was established that there was no medical report showing that the applicant suffered from any health problems at the time the criminal offence was committed ( tempore criminis ). The day the applicant committed the criminal offence he had chopped down an oak tree, which is a demanding physical job. The applicant is quite a heavy person (at the time the criminal offence was committed he weighed about a hundred kilos) and thus obviously physically strong. The psychiatric expert ... also gave her written and oral opinion about the physical and mental state of the applicant during his questioning by the police, and the Supreme Court found that there was no need for a further psychiatric examination and that the questioning of the applicant before the police had not been unlawful. In view of all the above facts concerning the applicant’s questioning by the police, the Constitutional Court finds that there is no evidence showing that the lengthy questioning by the police reduced the applicant to a state of physical and mental exhaustion capable of leading him to falsely incriminate himself. Although the applicant spent the period between 2 June 2004 at 7 a.m. and 4 June 2004 with the police while the written record was drawn up, the analysis of all the documents in the case file concerning the pre-investigation stage does not disclose any ill-treatment which could lead to [a finding of] a violation of his constitutional rights. ...” 3.     Decisions adopted during the trial concerning the applicant’s detention 55.     On 3 June 2004 the investigating judge of the Zagreb County Court ordered the applicant to be held in police custody for a further twenty-four hours, until 7 a.m. on 4 June 2004, under Article 98 § 1 of the Code of Criminal Procedure. The decision expressly stated that the applicant had been arrested on 2 June 2004 at 7 a.m. This decision was served on the app