CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 octobre 2015

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CROATIA   (Application no. 45593/13)                 JUDGMENT       STRASBOURG   13 October 2015     FINAL   13/01/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Jović v. Croatia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Işıl Karakaş, President,   Paul Lemmens,   Helen Keller,   Ksenija Turković,   Egidijus Kūris,   Robert Spano,   Jon Fridrik Kjølbro, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 22 September 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 45593/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Čedo Jović (“the applicant”), on 8 July 2013. 2.     The applicant was represented by Mr T. Filaković, a lawyer practising in Osijek. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     The applicant alleged, in particular, that he had not been able to obtain an effective judicial review of his pre-trial detention by the Constitutional Court, contrary to Article 5 § 4 of the Convention. 4.     The application was initially allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 8 November 2013 it was communicated to the Government. On 1 September 2015, the Court changed the composition of its Sections (Rule 25 § 4). The present application was thus assigned to the newly composed Second Section (Rule 52 § 1). 5.     The Government of Serbia were informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court), but did not avail themselves of the possibility of doing so. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1963 and lives in Belgrade. 7.     On 7 July 2008 the applicant was arrested in Croatia on suspicion of war crimes against the civilian population. 8.     On 9 July 2008 an investigating judge of the Osijek County Court ( Županijski sud u Osijeku , hereinafter “the County Court”) ordered his pre-trial detention under Article 102 § 1 (1), (2) and (4) of the Code of Criminal Procedure (risk of absconding, risk of collusion and the seriousness of the charges). 9.     After the completion of the investigation, the applicant was indicted in the County Court on charges of war crimes against civilians. He was remanded in detention during the proceedings. The period of his detention was extended several times by the decisions of a three-judge panel of the County Court and by the Supreme Court ( Vrhovni sud Republike Hrvatske ). 10.     On 15 March 2011 the County Court found the applicant guilty on charges of war crimes and sentenced him to five years’ imprisonment. 11.     The applicant appealed to the Supreme Court, and on 22 February 2012 it quashed the first-instance judgment and remitted the case to the County Court on the grounds of procedural flaws during the trial. 12.     At the same time, the Supreme Court extended the applicant’s detention under Article 102 § 1 (1) of the Code of Criminal Procedure (risk of absconding) on the grounds that he lived in Serbia and had Serbian nationality, and therefore posed a flight risk if at liberty. 13.     On 2 April 2012 the Supreme Court extended the maximum period of the applicant’s pre-trial detention for a further year. 14.     On 18 April 2012 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) against the decision of 2 April 2012 challenging the lawfulness of and grounds for his continued pre-trial detention. 15.     On 1 June 2012 the County Court, after a retrial, found the applicant guilty on charges of war crimes against civilians and sentenced him to five years’ imprisonment. 16.     On the same day the County Court extended the applicant’s detention until the first-instance judgment became final. 17.     The applicant appealed to the Supreme Court against the decision extending his detention, and on 15 June 2012 it dismissed his appeal as ill-founded. 18.     On 20 July 2012 the applicant challenged the decision of the County Court on his detention of 1 June 2012, upheld by the decision of the Supreme Court of 15   June 2012, before the Constitutional Court ( see paragraphs 16-17 above). 19.     On 8 January 2013 the Constitutional Court dismissed as ill-founded the applicant’s constitutional complaint against the decisions extending his detention until the first-instance judgment became final (see paragraphs 15-18 above). 20.     On 14 January 2013 the Constitutional Court declared the applicant’s constitutional complaint of 18 April 2012 (see paragraph 14 above) inadmissible on the grounds that a new decision on his detention had been adopted in the meantime on 1 June 2012 (see paragraph 16 above). The decision of the Constitutional Court was served on the applicant’s representative on 17 January 2013. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant domestic law 1.     Constitution 21.     The relevant provision of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) reads as follows: Article 22 “Personal freedom and integrity are inviolable. No one shall be deprived of his liberty save in accordance with the law, and any deprivation of liberty must be examined by a court.” 2.     Constitutional Court Act 22.     The relevant parts of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 49/2002) read as follows: Section 62 “1.     Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person invested with public authority, on his or her rights and obligations or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government guaranteed by the Constitution (“constitutional right”) ... 2.     If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.” Section 72 “The Constitutional Court shall declare a constitutional complaint inadmissible if it does not have competence in the matter, or if [the complaint] is time-barred, incomplete, incomprehensible or inadmissible. The constitutional complaint is inadmissible if the relevant legal remedies have not been exhausted, that is, if the applicant has failed to use them in the proceedings before the lower courts, with the exception provided for in section 62 of this Act; the complaint has been lodged by a person not entitled to submit it; or if the complaint has been lodged by a legal entity not vested with constitutional rights.” 3.     Code of Criminal Procedure 23.     The Code of Criminal Procedure ( Zakon o   kaznenom postupku , Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, 178/2004 and 115/2006) in its relevant parts reads as follows: Grounds for Ordering Detention Article 102 “(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention: 1. Where there is evidence of a risk that [the defendant] will abscond (is in hiding or his or her identity cannot be established, and so on); 2. If there is a risk that he or she might destroy, hide, alter or forge evidence relevant to the criminal proceedings or might suborn witnesses, or where there is a risk of collusion ... 4. Where the charges relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, or where detention is justified by the modus operandi or other especially serious circumstances of the offence.” B.     Relevant practice 24.     On 13 January 2014 in its decision no. U-III-5449/2013, the Constitutional Court found that it should change its approach to cases where a constitutional complaint has been lodged against a decision on detention, which has since been replaced by a new decision on detention before the Constitutional Court has ruled on the complaint. It considered that in view of the requirements under Article 5 § 4 of the Convention, such complaints should be examined on the merits. The relevant part of the decision reads: “6. The [Court’s] case-law concerning Croatia shows that the Constitutional Court is obliged to re-examine its case-law in line with the requirements under Article 5 § 4 [of the Convention]....   The Constitutional Court is obliged, however, to align its practice with the requirements of Article 5 § 4 of the Convention. That means in the case at issue that the Constitutional Court is obliged to examine on the merits the appellant’s complaints against the disputed decisions to extend his pre-trial detention, irrespective of the fact that those decisions were set aside ... before the termination of the proceedings before the Constitutional Court. ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 25.     The applicant complained that he had not been able to obtain an effective judicial review of his pre-trial detention by the Constitutional Court, as provided for in Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A.     Admissibility 26.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ arguments 27.     The applicant contended that there had been no justification for the Constitutional Court’s refusal to examine his constitutional complaint of 18   April 2012 on the merits, since he had made proper use of that remedy as provided for in the relevant domestic law. He had thus allowed the Constitutional Court to deal with the substance of his complaints concerning the alleged unlawfulness and unreasonableness of his continued detention. Moreover, the applicant pointed out that the Constitutional Court’s practice of declaring constitutional complaints inadmissible merely because a new decision on detention had been adopted in the meantime was contrary to the Court’s well-established case-law concerning the requirements of an effective judicial review procedure under Article 5 § 4 of the Convention. 28.     The Government argued in particular that the domestic legal system had provided an effective procedure for the applicant to contest the grounds and duration of his detention before the Constitutional Court. They pointed out that the procedural requirements for the Constitutional Court to decide on the merits of a constitutional complaint depended on two conditions: that the applicant was detained; and that the disputed decision on his detention was in force at the time of the Constitutional Court’s decision. Such a practice had a legal and procedural justification in that the Constitutional Court wanted to keep its powers of review practical and effective by confining its examination to active decisions on detention. As the applicant had lodged (on 18 April 2012) a constitutional complaint against the decision on his detention of 2 April 2012 (see paragraphs 13 and 14 above), and as in the meantime a new decision on his detention had been adopted (1   June 2012, see paragraph 16 above), the Constitutional Court had declared his complaint inadmissible without examining it on the merits. However, the Constitutional Court had examined the applicant’s constitutional complaint of 20 July 2012 on the merits (see paragraphs 16-19 above). 2.     The Court’s assessment (a)     General principles 29.     The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, amongst many other authorities, Ismoilov and Others v. Russia , no. 2947/06, § 145, 24   April 2008, and Petkov and Profirov v. Bulgaria , nos. 50027/08 and 50781/09, § 66, 24 June 2014). A remedy must be made available during a person’s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading where appropriate to his or her release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Vachev v. Bulgaria , no. 42987/98, § 71, ECHR 2004 ‑ VIII, and Margaretić v. Croatia , no. 16115/13, § 113, 5 June 2014). 30.     The accessibility of a remedy implies, inter alia , that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, for instance, Čonka v. Belgium , no. 51564/99, §§   46 and 55, ECHR 2002 ‑ I, and Stephens v. Malta (no. 2) , no. 33740/06, § 83, 21 April 2009). 31.     Furthermore, Article 5 § 4 enshrines, as does Article 6 § 1, the right of access to a court, which can only be subject to reasonable limitations that do not impair its very essence (see Shishkov v.   Bulgaria , no.   38822/97, §§   82-90, ECHR 2003-I, and Bochev v. Bulgaria , no. 73481/01, §   70, 13   November 2008). While Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of applications for release from pre-trial detention, it nevertheless requires that a State which institutes such a system must in principle accord detainees the same guarantees on appeal as at first instance (see Peša v. Croatia , no.   40523/08, § 126, 8 April 2010). (b)     Application of these principles to the present case 32.     The Court notes that the applicant’s constitutional complaint (of 18   April 2012) against the decision (of 2 April 2012) extending his detention pending trial (see paragraphs 13-14 above) was declared inadmissible by the Constitutional Court on 14 January 2013, on the grounds that a fresh decision extending his detention had been adopted on 1   June 2012 (see paragraph 20 above). 33.     The Court has already examined, in other Croatian cases, the Constitutional Court’s practice of declaring each constitutional complaint inadmissible merely on the grounds that a fresh decision extending detention has been adopted before it has given its ruling. In this respect the Court has found a violation of Article 5 § 4 of the Convention in that the Constitutional Court’s failure to decide on the applicants’ constitutional complaints on the merits made it impossible to ensure the proper and meaningful functioning of the system for review of their detention provided for under domestic legislation (see Peša , cited above, § 126; Hađi v. Croatia , no.   42998/08, § 47, 1 July 2010; Bernobić v.   Croatia , no.   57180/09, § 93, 21 June 2011; Krnjak v. Croatia , no. 11228/10, §   54, 28   June 2011; Šebalj v.   Croatia , no. 4429/09, § 223, 28 June 2011; Getoš-Magdić v. Croatia , no.   56305/08, § 106, 2 December 2010; Trifković v.   Croatia , no. 36653/09, §§ 139-140, 6 November 2012; and Margaretić , cited above, §§ 119-21). 34.     While the Court notes the positive changes in the approach of the Constitutional Court introduced in January 2014, removing any such lack of effectiveness of the review procedure before it (see paragraph 24 above), it observes that the applicant’s case was dealt with under the old approach, which was found to be contrary to the requirements of Article 5 § 4 of the Convention. The Court therefore sees no reason to depart from its findings in the cases cited above (see paragraph 33 above). 35.     There has accordingly been a violation of Article 5 § 4 of the Convention. II.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 36.     The applicant invoked Article 6 §§ 1 and 2 of the Convention, reiterating his complaints concerning the decision of the Constitutional Court and without providing any further relevant arguments. 37.     In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court considers that this part of the applicant’s application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article   35 § 3 as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 38.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 39.     The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 40.     The Government considered the applicant’s claim excessive, unfounded and unsubstantiated. 41.     Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR   1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him. B.     Costs and expenses 42.     The applicant also claimed EUR 2,500 for the costs and expenses incurred before the domestic courts and before the Court. 43.     The Government considered this claim excessive and unsubstantiated. 44.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed by the applicant in full, plus any tax that may be chargeable to him. C.     Default interest 45.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the applicant’s complaint about the lack of an effective judicial review procedure of his pre-trial detention before the Constitutional Court under Article 5 § 4 of the Convention admissible, and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 5 § 4 of the Convention;   3.     Holds (a)     that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement: (i)     EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley Naismith   Işil Karakaş   Registrar   President