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

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margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4B1E01CC { width:201.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     FIRST SECTION         CASE OF BERNOBIĆ v. CROATIA   (Application no. 57180/09)                 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 Bernobić 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. 57180/09) 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 Vedran Bernobić (“the applicant”), on 12 October 2009. 2.     The applicant was represented by Ms L. Horvat, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     On 10 September 2010 the President of the First Section decided to communicate the complaint under Article 5 § 3 of the Convention concerning the length of and the reasons for the applicant’s pre-trial detention; and the complaint concerning the conformity of the procedure by which the applicant sought to challenge the lawfulness of his detention with the requirements of Article 5 § 4 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 1984 and lives in Konjščina. 1.     Criminal proceedings against the applicant 5.     On 24 October 2008 an investigation was opened in the Zagreb County Court in respect of the applicant and seven other suspects in connection with a suspicion that during 2007 and 2008 they had committed the criminal offence of trafficking in illegal drugs such as marijuana, speed and LSD. 6.     On the same date, an investigating judge of that court heard evidence from four defendants, including the applicant, and on 13 November 2008 from a further two. 7.     Further hearings were held before the investigating judge on 14   November and 15 December 2008, 12, 15, 29 and 30 January, 2, 12, and 17   February, and 9 March 2009 at which he heard evidence from two defendants and nineteen witnesses. 8.     On 21 April 2009 the applicant and seven other defendants were indicted in the Zagreb County Court on charges of trafficking in illegal drugs. 9.     At a hearing held on 19 June 2009 in the Zagreb County Court the applicant confessed to the charges held against him. 2.     Decisions on the applicant’s detention 10.     On 24 October 2008 the investigating judge remanded the applicant and three other suspects in custody on the basis of Article   102 paragraph   1(2) of the Code of Criminal Procedure (risk of suborning witnesses). Before adopting the decision the judge heard the suspects concerned. The relevant part of the decision reads: “The documents in the case file show that some of the defendants, as well as witnesses whose evidence will be necessary in the proceedings, know each other well. ... The documents in the case file further show that witnesses Z.Š. and J.H.Š. know the first, second and third defendant ... Since, in addition to the evidence from the witnesses, the court will also have to hear evidence from defendants who have not yet given it and are at large, there is a risk of pressure being brought to bear on the witnesses and the co-accused by the first defendant I.F., the second defendant T.S., the third defendant Vedran Bernobić and the eighth defendant L.K., if at large, and a risk of collusion in order to avoid their criminal liability.” 11.     On 20 November 2008 the investigating judge extended the detention of the four defendants, again on the basis of Article   102 paragraph   1(2) of the Code of Criminal Procedure (risk of suborning witnesses). The relevant part of the decision reads: “... the defendants I.F., T.S., Vedran Bernobić and L.K. all know each other and are part of the same drug-dealing and drug-using scene as J.M., who buys illegal drugs and is also the boyfriend of L.K., and in view of the way the offences with which the defendants have been charged were committed, and in particular in respect of the first three defendants, it is necessary to hear evidence from the witness J.M., who has so far avoided giving evidence and whose evidence is relevant for establishing the facts in issue. It is to be concluded that the first defendant I.F., the second defendant T.S., the third defendant Vedran Bernobić and the eighth defendant L.K., if at large, would suborn the witness in question ... A hearing in this case is scheduled for 3 December 2008, when it is expected that the witness concerned will give evidence in view of the measures taken.” 12.     On 21 November 2008 the applicant requested that his detention be lifted, stating that he did not know the witness J.M. On 26 November 2008 he lodged an appeal against the decision of 20 November 2008. He explained that witnesses Z.Š. and J.H.Š., who in the previous decision on the applicants’ detention had been identified as those he might have suborned, had already given evidence which showed that they did not know the applicant. He reiterated that he did not know the witness J.M. and disputed the allegations in the decision stating that he had been part of a drug-dealing and drug-using scene, arguing that such allegations had not been based on any proof, nor had it been proved that he knew the witness J.M. Furthermore, some of the witnesses had stated that the witness J.M. had left Croatia and therefore it was improbable that evidence would be taken from him in the near future. 13.     On 4 December 2008 a three-judge panel of the Zagreb County Court dismissed the appeal. The relevant part of the decision reads: “... there is a reasonable suspicion that the third defendant committed the criminal offence contained in Article 173 paragraph 6 of the Criminal Code ... It is still necessary to hear evidence from the witness J.M. in these proceedings, who had allegedly been buying illegal drugs from the defendant. The documents in the case file show, contrary to the arguments of the defendant ... that the statement of this witness is relevant. Therefore, this panel finds that there is a real risk of pressure being brought to bear on the witnesses by the ... third defendant, if at large ...” 14.     On 18 December 2008 the investigating judge extended the applicant’s detention on the basis of Article 102 paragraph 1(2 and 3) of the Code of Criminal Procedure (risk of suborning witnesses and of reoffending). The relevant part of the decision reads: “The investigation will not be completed before the detention order expires ... because it is necessary to hear evidence from at least thirty witnesses, to carry out a full toxicological examination of the confiscated drugs, prepare telecommunication reports after an examination of all mobile telephones and cards taken from the defendants as well as a computer owned by the second defendant ... (it is also to be noted that the investigating judge and his assistant are taking annual leave until 5   January 2009). ... the defendants I.F., T.S., Vedran Bernobić and L.K. all know each other and are part of the same drug-dealing and drug-using scene as J.M., who buys illegal drugs and is also the boyfriend of L.K., and in view of the way the criminal offences with which the defendants were charged were committed, and in particular in respect of the first three defendants, it is necessary to hear evidence from the witness J.M., who has so far avoided giving evidence and whose evidence is relevant to the establishment of the facts in issue. That witness did not attend a hearing on 15 December 2008. This court has been informed that a warrant to find and present the witness has been issued ( raspisana potraga ) and that all necessary measures will be taken to find the witness. It is to be concluded that there is a risk that, if at large, the ... the third defendant Vedran Bernobić might suborn the witness ... In their submissions of 25 November 2008 the Zagreb County State Attorney’s Office ... asked for the... third defendant Vedran Bernobić to be remanded in custody under Article 102 paragraph 1(3) of the Code of Criminal Procedure as well. This request ... is well-founded. The Zagreb County State Attorney’s Office asked that some thirty witnesses give evidence, in respect of whom a separate police report in the case file ... indicates that they had bought illegal drugs from the ... third defendant, Vedran Bernobić, on several occasions. The time frame which concerns these defendants, as well as the large number of buyers – about thirty – in respect of which there is a reasonable suspicion that the defendants were selling them various sorts of illegal drugs, leads to the conclusion that there was a certain degree of organisation in trafficking in illegal drugs and that those sales were a permanent source of income. This is corroborated by the list of payments into the bank accounts of the ... third defendant ... although he is not employed and has no assets. Another indication is the large number of mobile telephones and cards for such phones taken from the first and the second defendants ... ... The above circumstances, taken as a whole, show that ... there is reason to believe that the ... third defendant, if at large, might continue to commit the same or similar criminal offences ...” 15.     On 9 January 2009 the applicant lodged an appeal. He argued that, as to the danger of suborning witnesses, the court’s conclusions had been based on entirely unsupported statements that he had been part of the same drug-dealing and drug-using scene as the other defendants and witnesses. Contrary to these allegations, only one of the other defendants had been known to him. He had never met the witness J.M. and there had been no indication in the case file to the contrary. 16.     As regards the need to hear evidence from about a further thirty witnesses, the applicant argued that only a few of these witnesses were to give evidence concerning him and that the court had given no explanation as to why it had considered that there was a risk that he might suborn any of those witnesses. Furthermore, the names of these witnesses had not been listed. The applicant argued that the Supreme Court’s practice required that the risk that witnesses would be suborned had to be established by relevant facts and that relevant explanations as to why there was such a risk had to be given, as well as the names of the witnesses who might be suborned. The applicant also argued that the witnesses in respect of whom the court had previously established that risk had all, when finally heard, stated that they did not know the applicant. 17.     As to the danger of reoffending, the applicant argued that it was not clear why this ground had only been introduced in the latest decision extending his detention. If such a danger had not existed at the time of his arrest, there was no reason to believe that it would now exist. 18.     The period during which the defendants had been followed by the police had covered only a few months, and, if the transcripts of the conversations recorded by the police were taken as relevant, there were only five witnesses who had ever referred to the applicant. Even if they were to be regarded as “buyers”, the fact that they were so few in number could not in any way indicate that there was a danger that the applicant, if at large, would continue with the same criminal activity. 19.     As regards the payments of small amounts of money into his bank account, the applicant explained that these had mostly been made by his father and occasionally also by his mother and brother. The total sum of payments during a period of eleven months was 7,500 Croatian kuna   (HRK), which did not appear to be a large sum. 20.     As regards the allegations concerning his unemployment, it was true that he had not been permanently employed, but in July and August 2008 he had started to work on a casual basis in the Carpe Diem student hostel in Zagreb. The applicant also enclosed a letter from the hostel’s director informing him of an opportunity to continue working at the hostel. 21.     The applicant further argued that he did not have a criminal record and that the fact that he had no assets was not unusual for his age (he was twenty-four at the time). 22.     On 15 January 2009 a three-judge panel of the Zagreb County Court dismissed the appeal. The relevant part of the decision reads: “... there is a reasonable suspicion that the third defendant committed the criminal offence of abusing illegal drugs ... which is a basic condition for ordering and then extending his detention. The witness J.M still has to give evidence in these proceedings because, as the documents in the case file show, he has knowledge relevant to these proceedings. Therefore, there is a risk of pressure being put on that witness by the third defendant, if at large... Furthermore, the manner in which the third defendant committed the criminal offence shows his resolve in acting illegally, because he sold various types of illegal drugs on many occasions and to a number of persons. Also, he is unemployed and has no regular monthly income. The above factors taken as a whole amount to specific circumstances which justify the risk that the third defendant, if at large, might continue with the same illegal criminal activity. ...” 23.     On 20 February 2009 the Zagreb County Court extended the applicant’s detention on the basis of Article 102 paragraph 1(3) of the Code of Criminal Procedure (risk of reoffending). The relevant part of the decision reads: “The time frame which concerns these defendants, as well as the large number of buyers – about thirty – in respect of which there is a reasonable suspicion that the defendants were selling them various sorts of illegal drugs, leads to the conclusion that [the defendants showed] a certain degree of organisation in trafficking in illegal drugs and about such sales as a permanent source of income. This is corroborated by the list of payments into the bank accounts of the ... third defendant ... although he is not employed and has no assets. Another indication is the large number of mobile telephones and cards for such telephones taken from the first and second defendants ...” 24.     On 26 February 2009 the applicant lodged an appeal, in which he argued that the suspicion that he had committed the criminal offence at issue had not been established. The only indication that he had been connected with the sale of illegal drugs were transcripts of some of his telephone conversations in which words such as “picture” and “speed” were mentioned, which could not with certainty be seen as referring to illegal drugs. The report drawn up by an expert had showed that the powder found on him by the police had not been an illegal drug. Furthermore, none of the more than twenty witnesses already heard in the proceedings had mentioned the applicant in connection with trafficking in illegal drugs. 25.     The police surveillance had lasted three months and the tapping of the applicant’s telephone had lasted for only fifteen days, which could not be seen as a long period. The applicant also reiterated his arguments from his previous appeals. 26.     On 6 March 2009 a three-judge panel of the Zagreb County Court dismissed the appeal. The relevant part of the decision reads: “The time frame which concerns ... the third defendant, as well as the large number of buyers in respect of which there is a reasonable suspicion that the defendants were selling them various sorts of illegal drugs, shows a high degree of criminal resolve on [his] part... Furthermore, [he] is unemployed and has no regular monthly income. The above factors, taken as a whole, irrespective of the fact that [he] has no prior criminal record, amount to specific circumstances which justify the risk that the ... third defendant, if at large, might continue with the same illegal criminal activity. ...” 27.     On 6 April 2009 the applicant lodged a constitutional complaint, in which he repeated arguments from his previous appeals. 28.     On 21 April 2009 the Zagreb County Court extended the applicant’s detention on the basis of Article 102 paragraph 1(3) of the Code of Criminal Procedure (risk of reoffending). The relevant part of the decision reads: “The fact that the indictment has been lodged provides a sufficient degree of suspicion that the first, second, third and eighth defendants committed the criminal offences alleged therein ... The factual background [of the indictment] indicates that ... for a period of several months the defendants were selling various types of illegal drugs and thus showed resolve in illegal behaviour. ... all that, despite the fact that ... the third defendant has no prior criminal record, indicates that there is a justified risk that these defendants, if at large, might reoffend ...” 29.     On 27 April 2009 the applicant lodged an appeal with the Supreme Court in which, relying on Article 5 of the Convention, he argued that the mere fact that the indictment had been lodged could not suffice to establish reasonable doubt that he had committed the criminal offence alleged therein. As regards the allegations about his criminal resolve, the applicant pointed out that the charges in the indictment referring to him alleged that he had sold illegal drugs to third parties on two occasions and therefore that it could not be seen as a high degree of criminal resolve on his part. He also argued that there had not been any indications that he might reoffend. 30.     On 29 April 2009 the Constitutional Court declared the complaint of 6   April 2009 inadmissible on the grounds that the impugned decisions were no longer in effect, as a fresh decision on his detention had meanwhile been adopted on 21 April 2009. 31.     On 13 May 2009 the Supreme Court quashed the Zagreb County Court’s decision of 21 April 2009 on account of a procedural defect, namely that the applicant’s defence counsel had not been summoned to the panel meeting when it was deliberating his detention. It noted that neither the defendants’ defence counsel nor the State Attorney had been summoned to the panel session on 21 April 2009 because the case file had been forwarded to the panel at 3.45 p.m. that day, that is to say after regular working hours. 32.     On 20 May 2009 a three-judge panel of the Zagreb County Court extended the applicant’s detention on the basis of Article   102 paragraph   1(3) of the Code on Criminal Procedure (risk of reoffending). The relevant part of the decision reads: “It is alleged in the indictment that ... in the period between July and September 2008 the third defendant, Vedran Bernobić, bought from an unknown person the illegal drugs LSD and speed with the aim of selling them on to their final consumers. He made further arrangements concerning the sale of the illegal drugs on his mobile telephones with six other persons and with the fourth defendant M.Š., to whom he on two occasions sold a package of LSD. The above described activity of ... the third defendant, in view of the fact that this criminal activity took place over a period of several months in which the defendants were selling various types of illegal drugs, indicates a high degree of organisation and criminal resolve. ... All that, despite the fact that ... the third defendant has no prior criminal record, indicates that there is a justified risk that these defendants, if at large, might reoffend. ...” 33.     On 27 May 2009 the applicant lodged an appeal with the Supreme Court, arguing that in the period between 21 April and 20 May 2009 he had been detained without any decision ordering his detention because the decision of the Zagreb County Court of 21 April 2009 had been quashed by the Supreme Court on 13 May 2009. The decision of the Supreme Court, while it quashed the decision extending the applicant’s detention, did not make a further detention order. A fresh detention order was issued only on 20   May 2009 by the Zagreb County Court. Therefore, in the period from 21   April to 20 May 2009 the applicant should have been released. 34.     He further argued that there was no reasonable suspicion that he had committed the criminal offences alleged in the indictment. The four witnesses who had given evidence before the investigating judge and who had been named in the indictment as the “final consumers” had in no way implicated the applicant in drug trafficking. However, this was not at all mentioned in the indictment. The impugned decision in no way explained what constituted a reasonable suspicion that the applicant had committed the criminal offence in question. No reasons were given for the alleged risk that if at large he might reoffend. 35.     He also argued that he had already spent seven months in detention and that the measure of detention had become disproportionate to the grounds for ordering it. In the applicant’s view, the same purpose could have been achieved by placing him under house arrest. 36.     On 5 June 2009 the Supreme Court dismissed the appeal. The relevant part of the decision reads: “According to the indictment, there is a reasonable suspicion that ... the third defendant, Vedran Bernobić, committed the criminal offence contained in Article 173 paragraph 2 of the Criminal Code, by which the general statutory requirement for ordering detention under Article 102 paragraph 1 of the Code of Criminal Procedure has been satisfied. ... The factual background of point 3 of the indictment alleges that in the period between July and September 2008 the defendant, Vedran Bernobić, bought the illegal drugs LSD and amphetamines (speed) with the aim of selling them on to individual consumers. He made arrangements for such sales with the six persons identified in the indictment and on two occasions sold a package of LSD to M.Š. ... Thus described, the defendant’s actions manifest resolve, determination and persistence in repeating criminal activity, all with the aim of securing material gain, especially in view of the large number of persons with whom he negotiated sales, the type of illegal drugs concerned and the period in which the criminal activity took place. The documents in the case file show that the defendant has no steady employment and thus no steady income and no assets from which he could draw income to meet his everyday needs. All these circumstances in which the criminal activity of the defendant Bernobić [took place], together with [his] unemployment and poor financial situation, taken as a whole, amount to specific circumstances showing that the defendant, if at large, might reoffend, irrespective of the fact that he has no prior criminal convictions. ... The appeal allegations of ... the defendant, Vedran Bernobić, as to the assessment of evidence and the degree of the criminal offences being proved are not relevant for deciding on his further detention because for such a decision ... the relevant degree of reasonable suspicion suffices, and that suspicion is shown in the indictment and the evidence presented so far. Contrary to the arguments of the defendant, Vedran Bernobić, neither the measure of house arrest nor other measures under Article 90 of the Code of Criminal Procedure could satisfy the same purpose as detention ... The defendant’s ... arguments concerning the issue of proportionality are ill-founded. The test of balancing ... the gravity of the criminal offence at issue ..., the likely punishment and the need for extended detention on the one hand and the time the defendant has already spent in detention on the other shows that the principle of proportionality has not been disturbed ... ... Contrary to the arguments of the defendant, Vedran Bernobić, although the first-instance decision of 21 April 2009 extending the defendant’s detention had been quashed by this court ... and the case was remitted, the first-instance court, in the decision presently challenged, correctly extended the defendant’s detention under Article 107 paragraph 1 of the CCP because the previous decision of this court did not quash the detention, [rather] it was only the decision of the first-instance court which did [so].” 37.     After the applicant had confessed to the charges against him at a hearing held on 19 June 2009, the Zagreb County Court ordered his release. II.     RELEVANT DOMESTIC LAW 38.     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: 8.     General Provisions on Detention Section 101 “(1)     Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure. (2)     The detention measure 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, and the need to order and determine the duration of the detention. (4)     The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is being held in detention and shall review as a matter of course whether the grounds and legal conditions for detention have ceased to exist, in which case the custodial measure shall immediately be lifted.” 9.     Grounds for Ordering Detention Section 102 “(1)     Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention: 1.     where circumstances justify a risk of absconding ...; 2.     if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might suborn witnesses, or where there is a risk of collusion; 3.     where special circumstances justify the suspicion that the person concerned might reoffend ... ...” Article 106 “(1)     Detention ordered by an investigating judge ... shall not exceed one month ... (2)     During the investigation the investigating 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 duration of 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 continue to exist ...” Appeal against a decision ordering, lifting or extending a custodial measure Article 110 “(1)     A defendant, defence counsel or the State Attorney may lodge an appeal against a decision ordering, extending or lifting a custodial measure, within two days thereof ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 39.     The applicant complained that his detention between 13 and 20   May 2009 had not been covered by any decision, contrary to the requirements of Article 5 § 1 of the Convention, which reads as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a)     the lawful detention of a person after conviction by a competent court; (b)     the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c)     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 or fleeing after having done so; (d)     the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e)     the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f)     the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A.     Admissibility 40.     The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 41.     The applicant argued that when the appellate court quashed (owing to a procedural error) the decision of 21 April 2009 extending his detention on 13 May 2009, it had made no order as to his further detention. A fresh decision ordering his detention had been issued by the trial court on 20   May 2009. Thus, there had been no decision in effect ordering his detention in the period between 13 and 20 May 2009 and therefore he should have been released in that period. 42.     The Government did not submit any observations on this point. 1.     General principles 43.     The principles relevant for the examination of the applicant’s complaint under Article 5 § 1 of the Convention were set out by the Court in the Mooren judgment (see Mooren v. Germany [GC], no. 11364/03, ECHR   2009 ‑ ...). The relevant passages read as follows: “(i)     Recapitulation of the relevant principles 72.     Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, inter alia , Erkalo v. the Netherlands , 2 September 1998, § 52, Reports of Judgments and Decisions 1998 ‑ VI; Steel and Others v. the United Kingdom , 23 September 1998, §   54, Reports 1998 ‑ VII; and Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008 ‑ ...). The Court must further ascertain in this connection whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein, notably the principle of legal certainty (compare Baranowski v.   Poland , no. 28358/95, §§ 51-52, ECHR 2000 ‑ III; Ječius v. Lithuania , no. 34578/97, § 56, ECHR 2000 ‑ IX; and Nasrulloyev v. Russia , no. 656/06, § 71, 11 October 2007). (α)     Principles governing the examination of compliance with domestic law 73.     Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should therefore review whether this law has been complied with (see, inter alia , Benham v. the United Kingdom , 10 June 1996, § 41, Reports 1996 ‑ III; Baranowski , cited above, § 50; Ječius , cited above, § 68; and Ladent v. Poland , no. 11036/03, § 47, ECHR 2008 ‑ ... (extracts)). 74.     However, the Court has clarified, particularly in its more recent case-law, that not every fault discovered in a detention order renders the underlying detention as such unlawful for the purposes of Article 5 § 1. A period of detention is, in principle, “lawful” if it is based on a court order. A subsequent finding of a superior domestic court that a lower court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention (see, inter alia , Benham , cited above, § 42; Douiyeb v. the Netherlands [GC], no.   31464/96, § 45, 4 August 1999; Minjat v. Switzerland , no. 38223/97, § 41, 28   October 2003; and Khudoyorov v. Russia , no. 6847/02, § 128, ECHR 2005 ‑ X (extracts)). 75.     In its more recent case-law, the Court, referring to a comparable distinction made under English law (compare Benham , cited above, §§ 43-46; and Lloyd and Others v. the United Kingdom , nos. 29798/96 and others, §§ 102, 105 et seq., 1 March 2005), further specified the circumstances under which the detention remained lawful in the said underlying period for the purposes of Article 5 § 1: For the assessment of compliance with Article 5 § 1 of the Convention a basic distinction has to be made between ex facie invalid detention orders – for example, given by a court in excess of jurisdiction (see Marturana v. Italy , no. 63154/00, § 78, 4 March 2008) or where the interested party did not have proper notice of the hearing (see Khudoyorov , cited above, § 129; and Liu v. Russia , no. 42086/05, § 79, 6 December 2007) – and detention orders which are prima facie valid and effective unless and until they have been overturned by a higher court (ibid.). A detention order must be considered as ex facie invalid if the flaw in the order amounted to a “gross and obvious irregularity” in the exceptional sense indicated by the Court’s case-law (compare Liu , cited above, §   81; Garabayev v. Russia , no. 38411/02, § 89, 7 June 2007, ECHR 2007 ‑ ... (extracts); and Marturana , cited above, § 79). Accordingly, unless they constitute a gross and obvious irregularity, defects in a detention order may be remedied by the domestic appeal courts in the course of judicial review proceedings. (β)     The required quality of domestic law 76.     The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied (see Baranowski , cited above, §§ 51-52; Ječius , cited above, § 56; and Khudoyorov , cited above, § 125). In laying down that any deprivation of liberty must be “lawful” and be effected “in accordance with a procedure prescribed by law”, Article 5 § 1 does not merely refer back to domestic law; like the expressions “in accordance with the law” and “prescribed by law” in the second paragraphs of Articles 8 to 11, it also relates to the “quality of the law”, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. “Quality of the law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Amuur v. France , 25 June 1996, § 50, Reports 1996 ‑ III; and Nasrulloyev , cited above, § 71). (γ)     Principles governing the notion of arbitrary detention 77.     No detention which is arbitrary can be compatible with Article 5 § 1, the notion of “arbitrariness” in this context extending beyond the lack of conformity with national law. As a consequence, a deprivation of liberty which is lawful under domestic law can still be arbitrary and thus contrary to the Convention. While the Court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Article 5 § 1, key principles have been developed on a case-by-case basis. It is moreover clear from the case-law that the notion of arbitrariness in the context of Article 5 varies to a certain extent depending on the type of detention involved (see Saadi , cited above, §§   67-68). 78.     One general principle established in the case-law is that detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities (compare Bozano v.   France , 18 December 1986, § 59, Series A no. 111; and Saadi , cited above, § 69) or where the domestic authorities neglected to attempt to apply the relevant legislation correctly (see Benham , cited above, § 47; Liu , cited above, § 82; and Marturana , cited above, § 80). 79.     Furthermore, in the context of sub-paragraph (c) of Article 5 § 1, the reasoning of the decision ordering detention is a relevant factor in determining whether a person’s detention must be considered as arbitrary. The Court has considered the absence of any grounds given by the judicial authorities in their decisions authorising detention for a prolonged period of time to be incompatible with the principle of the protection from arbitrariness enshrined in Article 5 § 1 (see Stašaitis v. Lithuania , no.   47679/99, § 67, 21 March 2002; Nakhmanovich v. Russia , no. 55669/00, § 70, 2   March 2006; and Belevitskiy v. Russia , no. 72967/01, § 91, 1 March 2007). Conversely, it has found that an applicant’s detention could not be said to have been arbitrary if the domestic court gave certain grounds justifying the continued detention on remand (compare Khudoyorov , cited above, § 131), unless the reasons given are extremely laconic and without reference to any legal provision which would have permitted the applicant’s detention (compare Khudoyorov , cited above, § 157). 80.     Moreover, the Court has acknowledged notably in the context of sub-paragraphs   (c) and (e) of Article 5 § 1 that the speed with which the domestic courts replaced a detention order which had either expired or had been found to be defective is a further relevant element in assessing whether a person’s detention must be considered arbitrary. Thus, the Court considered in the context of sub-paragraph (c) that a period of less than a month between the expiry of the initial detention order and the issuing of a fresh, reasoned detention order following a remittal of the case from the appeal court to a lower court did not render the applicant’s detention arbitrary (see Minjat , cited above, §§ 46 and 48). In contrast, a period of more than a year following a remittal from a court of appeal to a court of lower instance, in which the applicant remained in a state of uncertainty as to the grounds for his detention on remand, combined with the lack of a time-limit for the lower court to re-examine his detention, was found to render the applicant’s detention arbitrary (see Khudoyorov , cited above, §§ 136-37). 81.     In the context of sub-paragraph (e) of Article 5 § 1, the Court considered that an interval of two weeks between the expiry of the earlier order of detention in a psychiatric hospital and the making of the succeeding renewal order could in no way be regarded as unreasonable or excessive so that this delay did not involve an arbitrary deprivation of liberty (see Winterwerp v. the Netherlands , 24 October 1979, § 49, Series A no. 33). In contrast, a delay of eighty-two days between the expiry of the initial order of detention in a psychiatric institution and its renewal and the lack of adequate safeguards to ensure that the applicant’s detention would not be unreasonably delayed was found to be inconsistent with the purpose of Article 5 §   1 to protect individuals from arbitrary detention (see Erkalo , cited above, §§ 57-60 in respect of both sub-paragraphs (a) and (e) of Article 5 § 1).” 2.     Application of these principles in the present case 44.     In examining whether the applicant’s detention was “lawful” within the meaning of Article 5 § 1, including the issue of whether “a procedure prescribed by law” was followed, the Court will first review whether the applicant’s detention complied with Croatian law. 45.     In the present case, it has to be noted that starting from 24   October 2008 the national judicial authorities ordered and then periodically extended the applicant’s pre-trial detention in connection with the criminal proceedings instituted against him on the grounds that there was a risk that, if at large, he might suborn witnesses and reoffend. 46.     However, on 13 May 2009 the Supreme Court found that the detention order issued by the Zagreb County Court on 21 April 2009 had failed to comply with the formal requirements of domestic law laid down in Article 105 § 1 of the C