CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 20 octobre 2015

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CROATIA   (Application no. 25703/11)                 JUDGMENT       STRASBOURG   20 October 2015           This judgment is final.   In the case of Dvorski v. Croatia, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Dean Spielmann, President ,   Josep Casadevall,   Guido Raimondi,   Mark Villiger,   Boštjan M. Zupančič,   Ján Šikuta,   Päivi Hirvelä,   Luis López Guerra,   Zdravka Kalaydjieva,   Paulo Pinto de Albuquerque,   Helen Keller,   Paul Mahoney,   Johannes Silvis,   Valeriu Griţco,   Faris Vehabović,   Ksenija Turković,   Jon Fridrik Kjølbro, judges ,   and Lawrence Early, Jurisconsult , Having deliberated in private on 21 January and 26 August 2015, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 25703/11) 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 Ivan Dvorski (“the applicant”), on 16 April 2011. 2.     The applicant was represented by Ms S. Maroševac-Čapko, a lawyer practising in Rijeka. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     The applicant alleged, in particular, that he had not had a fair trial because he had not been allowed to be represented by a lawyer of his own choosing during police questioning and that incriminating statements he had made had been used to convict him. 4.     The application was allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). On 28 June 2011 the President of the First Section decided to give notice of the application to the Government. On 5 November 2013 a Chamber of that Section, composed of Isabelle Berro-Lefèvre, President, Mirjana Lazarova-Trajkovska, Julia Laffranque, Linos-Alexandre Sicilianos, Erik Møse, Ksenija Turković and Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, gave judgment. They unanimously declared the complaint under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible. They held by a majority that there had been no violation of Article 6 § 1 of the Convention. The joint dissenting opinion of Judges Berro-Lefèvre and Laffranque was annexed to the judgment. 5.     In a letter of 21 February 2014, the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. A panel of the Grand Chamber granted the request on 14   April 2014. 6.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 7.     Judge Karakaş was subsequently prevented from taking part in the case and was replaced by the first substitute judge, Ján Šikuta (Rule 28). 8.     The applicant and the Government each filed further observations on the merits (Rule 59 § 1). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 21 January 2015 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Ms   Š. Stažnik,   Agent , Ms   N. Katić, Ms   M. Briški, Ms   S. Raguž, Mr   Z. Budimir,   Advisers ; (b)     for the applicant Ms   S. Maroševac-Čapko,   Counsel .   The Court heard addresses by Ms Maroševac-Čapko and Ms Stažnik, as well as their replies to questions put by Judges Griţco, López Guerra, Vehabović, Hirvelä, Pinto de Albuquerque, Zupančič, Kalaydjieva and Šikuta. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicant was born in 1986 and lives in Rijeka. A.     Background to the case 11.       On 13 March 2007, between 2 and 3.30 a.m., three murders, an armed robbery and an arson attack were committed in Vežica, a residential neighbourhood of Rijeka. 12.     Later that day, a number of people from Vežica were brought in for questioning at the Rijeka Third Police Station of the Primorsko-Goranska Police Department ( Policijska uprava Primorsko-goranska, Treća policijska postaja Rijeka – “Rijeka Police Station”). 13.     At about 1 p.m. the same day, the applicant was brought to Rijeka Police Station for questioning. Blood samples were taken from him for DNA analysis and the police searched his flat and through his mobile phone and seized a number of his personal items. 14.     The applicant was kept at Rijeka Police Station until his formal arrest at 9.50 a.m. on 14   March 2007 in connection with the above offences. B.     The applicant’s questioning by the police on 14 March 2007 1.     The applicant’s version of events 15.     According to the applicant, at about 10.40 a.m. on 14 March 2007 his mother, who lived and worked in Italy, called a lawyer, G.M., and asked him to represent the applicant. G.M. came to Rijeka Police Station at 10.45   a.m. but the police officers refused to let him see the applicant. G.M. remained in Rijeka Police Station until midday. He wanted to file a criminal complaint against an unknown person for abuse of power and unlawfully extracting a confession, but the police officers refused to accept his complaint on the ground that he had no power of attorney, and pushed him out of the police station. G.M. immediately informed the Rijeka County Deputy State Attorneys, D.K. and I.B., about the incident and they made a note in their case file. The Rijeka County Court was also immediately informed. 16.     At around 1.30 p.m. the applicant’s father signed a power of attorney in favour of G.M. to defend his son. A legal trainee, B.P., then tried to submit the power of attorney to the police but was told to leave. 17.     At some time between 3 and 3.30 p.m. G.M. again tried to contact the applicant in Rijeka Police Station but was denied access to him. 18.     At about 3.30 p.m. G.M. reported the events described above to the Chief of the Primorsko-Goranska Police Department, V., who made a note regarding their conversation. 19.     The applicant was never informed by the police that G.M. had been instructed to represent him and had come to Rijeka Police Station. 20.     According to the applicant, he had repeatedly asked the police officers in Rijeka Police Station to contact G.M., but was told that they had tried but there had been no answer. 2.     The Government’s version of events 21.     According to the Government, at 6 p.m. on 14 March 2007 the applicant agreed to be represented by a lawyer, M.R., a former chief of the Primorsko-Goranska Police. He arrived at Rijeka Police Station at about 7.45 p.m. The Government state that the applicant chose M.R. from a list of lawyers of the Rijeka Bar Association presented to him by the police and that the questioning of the applicant began at 8.10   p.m. According to the record of the applicant’s questioning, the police advised him of his right not to incriminate himself and his right to remain silent and he expressly stated for the record that his lawyer was M.R. 3.     Extract of the record of the applicant’s questioning 22.     The relevant part of the record of the police questioning of the applicant by Officers T.K. and Z.N. on 14 March 2007, which commenced at 8.10 p.m. and concluded at 11 p.m., reads as follows: “I have been informed of the reasons for my arrest, the criminal offences of which I am accused, my rights, the right not to answer and the right to be legally represented, as well as the right to have members of my family informed about my arrest. I have chosen and authorised a defence lawyer from Rijeka, M.R., to represent me in these proceedings, and I have consulted him in private; following the consultation with [M.]R. I have decided to give my evidence.” The record then gives the applicant’s description of the relevant events concerning the charges against him: he confessed that on the night of 13   March 2007, together with L.O. and R.Lj., he had gone to Đ.V.’s flat in Vežica, where he had taken a certain amount of money from Đ.V. and then shot and killed him, his girlfriend and his father. He had then set their flat on fire in order to destroy any trace of his having been there. He also stated that he had promised L.O. and R.Lj. that he would confess to the crimes and take the blame himself if they were arrested. The final part of the report reads: “I am not experiencing any withdrawal symptoms or any other crisis. I have given my evidence voluntarily in the presence of my lawyer and a County State Attorney. I have read the entire statement and am signing it as truthful.” Every page of the record of the applicant’s statement is signed by him. C.     Questioning by an investigating judge on 15 March 2007 at 1.15   p.m. 23.     The relevant part of the written record of the applicant’s questioning by an investigating judge reads as follows. “In response to a question by the court regarding the choice of defence counsel since the case file includes a record of the questioning of the suspect in the presence of defence counsel M.R., and also a power of attorney signed by his parents in favour of the lawyer G.M., the suspect answers: ‘I wish to sign the power of attorney for G.M., a lawyer from Rijeka, and I am hereby withdrawing the power of attorney for M.R.’ ... In response to a question by defence counsel as to whether he had instructed [M.]R. to represent him, the suspect answers: ‘No, I did not. I specifically told the police officers that I wanted G.M. to represent me. I do not know anything about G.M. coming to the police premises.’ ... In response to a further question by defence counsel as to whether he was under the influence of drugs, the accused answers: ‘I was under the influence of alcohol and drugs.’ ...” 24.     On 16 March 2007 G.M. applied to the investigating judge for the Rijeka County State Attorney and all his deputies to be removed from the case. The investigating judge forwarded the request to the Rijeka County State Attorney’s Office. The relevant part of the request reads as follows. “About thirty minutes ago, counsel for the defence learned that the Rijeka County State Attorney, D.H., had been present during the questioning of Ivan Dvorski as a suspect by police officers of Rijeka Police Station on 14 March 2007 at around 7 p.m., in the presence of the ‘defence lawyer’ M.R. On the same date, at around 10.40 a.m., the mother of Ivan Dvorski, Lj.D., who lives and works in Italy, called [G.M.] and asked him to defend her son Ivan, who was suspected of the offence of aggravated murder. At around 10.45 a.m., [G.M.] went to Rijeka Police Station but the police officers refused to let him see Ivan Dvorski and also did not tell [Ivan Dvorski] that his mother had instructed a lawyer. [G.M.] remained in Rijeka Police Station until 12 noon. He wanted to file a criminal complaint against an unknown person for abuse of power and unlawfully extracting a confession, but the police officers refused to accept his complaint on the ground that he had no power of attorney and pushed him out of the police station. [G.M.] immediately informed the Rijeka County Deputy State Attorneys, D.K. and I.B., about the incident and they made an official note in their case file. Therefore, at around 12.30 p.m. the Rijeka County State Attorney already knew that [G.M.] had been retained by [Ivan Dvorski’s] mother and that he had not been able to contact his client. The [Rijeka] County Court was also immediately informed. At around 1.30 p.m. Ivan Dvorski’s father signed a power of attorney for the defence of his son. A legal trainee, B.P., [then] tried to submit the power of attorney to the police but was told to ‘fuck off with that power of attorney’ and therefore it was not submitted. At around 3 to 3.30 p.m. [G.]M. again tried to contact his client in Rijeka Police Station but was denied access to him ... However, the defendant was never informed that a defence lawyer had been instructed and had come to Rijeka Police Station. At around 3.30 p.m. [G.M.] informed the Chief of the Primorsko-Goranska Police Department ..., V., who apparently made an official note concerning their conversation. However, the defendant was never informed that a defence lawyer had been retained and was also never asked whether he wanted to be represented by the lawyer instructed by his family. Besides that, ever since he had been brought to Rijeka Police Station, [Ivan Dvorski] had asked on a number of occasions for [G.M.] to be contacted but was told by the police officers that they had tried but there had been no answer. When he was brought to the police station, blood samples were taken from the defendant. They showed that he had a high level of alcohol and drugs in his blood. Between 1 p.m. on 13 March 2007 and around 7 p.m. on 14 March 2007 (these time periods are only known to [G.M.] from informal sources because he had no access to the Rijeka County State Attorney’s case file), the defendant was not given any food. It is clear that, although all these facts were known to the Rijeka County State Attorney, D.H., he disregarded them and, although present in person, allowed the defendant to be questioned in the presence of a lawyer who had [neither been requested by him] nor ... instructed by his family. This amounts to unlawfully extracting a confession, in breach of Article 225 § 8 of the Code of Criminal Procedure, given that the Rijeka County State Attorney, since about 12.30 p.m. [on 14   March 2007], had known who the [applicant’s chosen] defence lawyer was. On the same date [G.M.] sent the power of attorney to the Primorsko-Goranska Police Department and written complaints were also sent to the Supreme Court of the Republic of Croatia, the State Attorney General of the Republic of Croatia, the Rijeka County State Attorney’s Office, the Croatian Bar Association, the Ministry of Justice, the Ministry of the Interior, the Chief of the Primorsko-Goranska Police Department and the Rijeka County Court. ...” D.     Investigation 25.     On 16 March 2007 an investigation was opened in respect of the applicant, L.O. and R.Lj. on suspicion of having committed the three aggravated murders and arson in Vežica on 13 March 2007. 26.     On 23 March 2007 the State Attorney General of the Republic of Croatia ( Glavni državni odvjetnik Republike Hrvatske ) dismissed G.M.’s request for the removal of the Rijeka County State Attorney on the ground that there were no reasons for disqualifying him from dealing with the case. The relevant part of the decision reads as follows. “... a statement from D.H., the Rijeka County State Attorney, has been obtained. In his statement the Rijeka County State Attorney states that on 14 March 2007 at about 10 a.m. he was on the premises of the Rijeka Police Station together with his colleague, I.B.-L., where they were informed of the evidence thus far obtained, and all the evidence that remained to be taken in connection with the events in issue. He came back to the County State Attorney’s premises at about 1 p.m., when the deputies, D.K. and I.B., informed him that G.M. had come to the premises of the County State Attorney and made a complaint regarding the conduct of the police officers of the Rijeka Police Station in refusing him access to Ivan Dvorski, even though he had been given an oral authorisation by Ivan Dvorski’s mother, [who had called him from] Italy. The lawyer had not presented any proof of his authority to represent Ivan Dvorski or of his telephone conversation with Ivan Dvorski’s mother. He had not been able to make contact with the suspect’s father, having been unable to find him since he had no fixed address. After [the Rijeka County State Attorney, D.H.], had left the premises of the County State Attorney, he had had no further information regarding the actions of the above-mentioned lawyer. At 5 p.m. [D.H.] returned to the Rijeka Police Station in connection with the case in issue. There, an inspector of the Primorsko-Goranska Police Department told him that Ivan Dvorski was willing to submit his defence in the presence of his defence counsel, M.R., and it was agreed that the questioning would start at about 7 p.m. M.R. arrived at the Rijeka Police Station at 6.40 p.m. and together they went to the room where Ivan Dvorski was. There, the suspect signed the power of attorney in favour of M.R. and agreed that [M.R.] would be present during his questioning by the police. After that, at the request of M.R., the suspect was allowed to talk to the lawyer in private. After ten minutes they all moved to another room, where the suspect, in the presence of his lawyer, the County State Attorney, two police inspectors and a typist, put forward his defence, which was recorded in writing, and all this lasted for more than three hours. After that they all signed the written record [of questioning] and he left the room with M.R.” 27.     On 26 March 2007 the Rijeka County State Attorney dismissed the request for the removal of his deputies on the same grounds. The relevant part of that decision reads as follows. “A Rijeka County Deputy State Attorney, I.B.-L., stated that she had not participated at all in the questioning of Ivan Dvorski by the police, and that she had no knowledge of that stage of the proceedings and, in particular, that she had had no information regarding Ivan Dvorski’s representation by or choice of defence counsel during his questioning. She only knew that on 14 March 2007 G.M. had come to the premises of the Rijeka County State Attorney, where she had met him. He had made a complaint regarding the choice of defence counsel for Ivan Dvorski. He had said that he was Ivan Dvorski’s defence counsel, having been authorised by his mother in a telephone conversation. She [I.B.-L.] commented that that could not constitute a valid power of attorney ... The statements of the Rijeka County Deputy State Attorneys, D.K. and I.B., show that the only information they had regarding the conduct of the police came from [G.]M., who wanted to made a complaint regarding the conduct of police officers in connection with the choice of lawyer to represent and defend Ivan Dvorski. ... D.K. drew up an official note about this matter and presented it to G.M. The statements of the Rijeka County Deputy State Attorneys, D.K. and I.B., show that [G.M.] had mentioned a power of attorney given to him by Ivan Dvorski’s mother, who lived in Italy and with whom G.M. had talked on the telephone. The Deputies told him that a power of attorney given by telephone could not be considered valid. They had no knowledge of any other acts, including the obtaining of a power of attorney from Ivan Dvorski’s father ...” 28.     On 28 March 2007 G.M. informed the Rijeka County Court that he would no longer be representing the applicant and on 30 March 2007 the President of the Rijeka County Court appointed a legal-aid lawyer, Ms   Maroševac-Čapko, to represent the applicant. 29.     During the investigation, evidence was taken from a number of witnesses, and a report on the inspection of the crime scene and the search and seizure, as well as medical, fire and ballistics expert reports, were obtained by the investigating judge. E.     Proceedings on indictment 30.     On 12 July 2007 the Rijeka County State Attorney’s Office indicted the applicant, L.O. and R.Lj. in the Rijeka County Court on three counts of aggravated murder and one count of arson committed on 13 March 2007 in Vežica. 31.     The applicant, represented by Ms Maroševac-Čapko, lodged an objection against the indictment with the Rijeka County Court on 24 July 2007 on the ground that it contained numerous substantive and procedural flaws. He also argued that he had given his statement to the police under the influence of alcohol and drugs. He made no comments regarding his legal representation during the police questioning. 32.     The applicant’s objection against the indictment was dismissed as ill-founded by a three-judge panel of the Rijeka County Court on 28 August 2007. 33.     On 9 October 2007, the first day of the trial, the applicant and the other accused pleaded not guilty to all charges and the trial court heard evidence from seven witnesses. 34.     Another hearing was held on 11 October 2007, at which the trial court examined video-recordings of the crime-scene investigation and the autopsies of the victims. 35.     Further hearings were held on 12 November 2007 and 11   January 2008, at which the trial court heard evidence from nine witnesses. 36.     At a hearing on 14 January 2008, two experts in toxicology, a fingerprint expert, a ballistics expert and a DNA expert gave evidence. The defence made no objections in respect of their evidence. At the same hearing four other witnesses gave evidence. 37.     At a hearing on 15 January 2008, the trial court heard evidence from another expert in toxicology and a pathologist, as well as thirteen other witnesses. The defence made no objections in respect of the evidence of the expert witnesses but asked the trial court to commission a psychiatric report in respect of the applicant. 38.     At the same hearing the defence lawyer asked for a handwriting expert’s report to be commissioned in respect of the applicant’s signature on the record of his statement given to the police on 14 March 2007. She argued that the applicant had not signed any record during his questioning by the police. 39.     The trial court considered that for the time being it was not necessary to commission a psychiatric report and thus dismissed the applicant’s request to that effect. However, it commissioned a handwriting expert’s report in respect of the signature on the record of the applicant’s statement given to the police. 40.     On 23 January 2008 the handwriting expert submitted her report. She found that the applicant had signed the record of his statement given to the police on 14 March 2007. 41.     Another hearing was held on 12 March 2008, at which a medical expert, fire expert witnesses and one other witness gave evidence. The handwriting expert also gave oral evidence confirming her previous findings. The applicant’s lawyer challenged the veracity of these findings and applied to have another report commissioned, but the application was rejected by the trial court. At the same hearing, the trial court commissioned a psychiatric report in respect of the applicant and the other accused. 42.     On 2 April 2008 the applicant asked the Rijeka County Court to call the lawyer, G.M., as a witness in connection with the alleged unlawful extraction of his confession by the police. He pointed out that G.M. had not been allowed to see him while he had been in police custody and stated that he had been forced to confess by the police officers. 43.     On 24 April 2008 the two psychiatric experts submitted their report to the Rijeka County Court. They found that the applicant suffered from borderline personality disorder and addictions to heroin and alcohol. However, they found no distinctive mental disorder or illness. They concluded that, even assuming that he had been intoxicated at the time the murders had been committed, he had retained the mental capacity to understand the nature of his acts, although it had been diminished to a certain degree. As to his mental capacity concerning the charge of arson, they concluded that, at the time the offence had been committed, the applicant had been able to understand the nature of his acts and to control his actions. 44.     At a hearing on 26 June 2008, the psychiatric experts confirmed their findings and the parties made no objections in respect of their evidence. The trial court also dismissed the applicant’s request for G.M. to be heard as a witness, on the ground that all the relevant facts had already been established. 45.     At the same hearing one of the accused, R.Lj., confirmed the course of the events as described by the applicant in his statement given to the police on 14 March 2007. R.Lj. claimed, however, that he had not personally participated in the killings, because he had panicked and had left the flat when he had heard fighting. 46.     After R.Lj. had given his statement, the Rijeka County Deputy State Attorney amended the indictment. The applicant was charged with three counts of aggravated murder, armed robbery and arson, and L.O. and R.Lj. were charged with armed robbery and aiding and abetting the perpetrator of an offence. The applicant and the other accused pleaded not guilty to the charges listed in the amended indictment. 47.     On 27 June 2008 L.O. gave oral evidence confirming the course of the events as described by R.Lj. He stated that after the applicant had got into a fight with Đ.V. he had heard gunshots, after which he had panicked and left the flat. 48.     At the same hearing the parties submitted their closing arguments. The applicant’s defence lawyer argued that it had not been proved that the applicant had committed the offences he was charged with. She pointed out, however, that if the trial court took a different view, then the applicant’s confession to the police and his sincere regret had to be taken into consideration in sentencing him. 49.     On 30 June 2008 the Rijeka County Court found the applicant guilty of the three counts of aggravated murder and of the charges of armed robbery and arson and sentenced him to forty years’ imprisonment. The trial court first examined the applicant’s confession against those of the other co-accused, L.O. and R.Lj., and found that his confession was essentially consistent with the evidence provided by them. In finding the applicant guilty, the trial court also assessed his confession against the evidence from the case file. 50.     The trial court relied in particular on the search and seizure records and photographs depicting L.O. holding the same type of handgun as had been used for the murders. On the basis of the witness statements and the recording of a nearby video surveillance camera, the trial court concluded that the applicant and the other co-accused had gone to Đ.V.’s flat on the date in question. Furthermore, the ballistics reports and the crime-scene reports indicated that the details of the statements of the applicant and his co-accused were accurate, and the course of the events was ascertained on the basis of the fire, ballistics, toxicology and DNA reports. The trial court also found that the statements of the accused as to the manner in which the murders had been carried out were supported by the autopsy reports, the evidence of the pathologist provided at the trial, the crime-scene report and the witness statements about the gunshots that had been heard in Đ.V.’s flat. Furthermore, as to the arson charge, the trial court examined the material from the crime-scene investigation and the evidence from the fire expert report, as well as medical records and damage reports submitted by the victims, and the statements of a number of residents in the building where the fire had occurred. 51.     As regards the applicant’s questioning by the police and the request made by the defence to hear evidence from G.M. (see paragraphs 42 and 44 above), the Rijeka County Court noted as follows. “The first accused, Ivan Dvorski, confessed to the criminal offences of robbery, aggravated murder of Ɖ.V., M.Š. and B.V. ..., exactly as is stated in the operative part of this judgment, to the police and in the presence of a defence lawyer. He later tried to contest that statement, claiming that he had not instructed the defence lawyer, M.R., that he had told the police officers that he wanted G.M. as his lawyer, that at the time he had been taken to the police station he had been under the influence of alcohol and drugs, and so on. However, this defence is not acceptable. The written record of arrest shows that Ivan Dvorski was arrested on 14 March 2007 at 9.50 a.m. at the Rijeka Police Station, and [M.]R., in favour of whom Ivan Dvorski signed the power of attorney, came to the police station on 14   March 2007 at 7.45 p.m. The written record of the questioning of the then suspect Ivan Dvorski shows that M.R. was informed at 6.15 p.m. and that the questioning started at 8.10 p.m. Besides the officers of the Rijeka Police, a typist and the defence lawyer of the then suspect Ivan Dvorski, the County State Attorney was also present during the questioning. The introductory part of the written record [indicates] that the then suspect Ivan Dvorski clearly stated that he had chosen and authorised M.R. to act as his defence lawyer and had consulted with him, after which he decided to give his statement. The written record is properly signed by the persons present. The first accused Ivan Dvorski had read the written record before signing it. Thus, the above shows without doubt that the contentions of Ivan Dvorski that he had not retained M.R. as his lawyer are unfounded. During the trial, at the request of Ivan Dvorski’s defence, a handwriting expert gave her opinion regarding the signature of Ivan Dvorski on the written record of his questioning by the police. The expert opinion proved beyond any doubt that the contested signature was that of Ivan Dvorski. The panel accepts such findings in their entirety; the findings were further explained at a hearing by the expert Lj.Z. Her findings were given in an objective, impartial and professional manner. Therefore, the questioning of Ivan Dvorski by the police was carried out in compliance with the provisions of the Code of Criminal Procedure. ... The request made by [Ivan Dvorski’s] defence to call G.M. as a witness ... was dismissed as irrelevant, since the documents from the case file do not reveal that there was any extraction of a confession by the police, but only [record] the time at which [M.]R. came [to the police station], whereupon the questioning of [Ivan Dvorski] in the presence of the lawyer for whom he had signed a power of attorney started ... Nobody, including [Ivan Dvorski’s] defence lawyer who was present during the police questioning – [M.]R. – has alleged any unlawful extraction of a confession and there is no indication of this in the record of the statement given by Ivan Dvorski, [who] at the time [was] only a suspect.” 52.     The applicant lodged an appeal against the first-instance judgment with the Supreme Court ( Vrhovni sud Republike Hrvatske ) on 6 November 2008. He complained, inter alia , that the conviction had been based on his confession to the police, which had not been given in the presence of a lawyer of his own choosing, namely G.M., but in the presence of a lawyer, M.R., who had been offered to him by the police. The applicant also referred to the request for the removal of the Rijeka County State Attorney and all his deputies lodged by G.M. on 16 March 2007, highlighting the part of that request which stated that he had been denied food during his detention in police custody. The relevant part of the applicant’s appeal reads as follows. “The statement given by the first accused to the police was unlawfully obtained, for the following reasons. When the first accused was brought to the Rijeka Police Station his defence rights were seriously infringed. However, during the trial this infringement was ignored. On 14 March 2007, the first accused’s mother and then also his now late father retained G.M. as his defence lawyer before the police, after he had been arrested. However, G.M. was not allowed access to the accused, and subsequently informed the relevant authorities thereof, but they ignored this. G.M.   therefore lodged an action in the Rijeka Municipal Court in respect of an unlawful act, as well as a request for the removal of the Rijeka County State Attorney and all his deputies. In that request he alleged that the first accused had not been given any food by the police from 13 March 2007 at 1 p.m., when he had been brought to the Rijeka Police Station, until he had agreed to be represented by M.R. on 14 March at about 7 p.m. so as to give a self-incriminating statement, which was in violation of Article 225 § 8 of the Code of Criminal Procedure. Because of that, the defence asked for G.M. to be examined [at the trial] since he had knowledge about the questioning of the first accused by the police.” 53.     On 8 April 2009 the Supreme Court dismissed the applicant’s appeal as ill-founded. As regards his complaints concerning his statement to the police, that court noted: “... The lawfulness of [the statement given to the police] was not put in doubt by the appellant’s complaints that M.R. was not his lawyer and that his lawyer was G.M., who had been retained by his father and mother on the same day, or by the appellant’s complaints that he had been denied food in the period between 1 p.m. on 13 March 2007 and 7 p.m. on 14 March 2007 until he had agreed to instruct M.R. to act as his lawyer, since according to the record of his arrest ..., the appellant was arrested at 9.50   a.m. on 14 March 2007 and the lawyer M.R. arrived [at the police station] at 6.45   p.m. on the same day.” 54.     The applicant lodged a further appeal against the judgment of the Court of Appeal with the Supreme Court on 14 September 2009, reiterating his previous arguments. The relevant part of the appeal reads as follows. “The first accused has to comment on the conclusions of the appeal court that the allegation that food was denied to him from 1 p.m. on 13 March 2007 until he agreed to be represented by M.R. at 7 p.m. on 14 March 2007 had no bearing on the lawfulness of the evidence [(the record of his questioning)] because the written record of his arrest showed that he had been arrested on 14 March 2007 at 9.50 a.m. and that M.R. had arrived on the same day at 6.45 p.m. The Record of Attendance F/949, which is in the case file, shows that the first accused was brought to the police station on 13 March 2007 at 2 p.m. and was kept there. He was arrested the next day, as found by the first-instance court. However, it is not true that M.R. came to the police station at 6.45 p.m.: he came at 7.45 p.m., which shows that the allegations of the first accused are true. That fact could have been verified by the evidence of G.M., who represented the first accused during the investigation ...” 55.     On 17 December 2009 the Supreme Court, acting as the court of final appeal, dismissed the applicant’s appeal as ill-founded. That court pointed out that the record of the applicant’s statement suggested that he had chosen M.R. to represent him during police questioning and that M.R. had provided him with adequate legal advice. The Supreme Court also noted that there was nothing in the case file to indicate that the applicant had been ill-treated or forced to confess. The relevant part of the judgment reads as follows. “The appellant erroneously argues that the first-instance court committed a grave breach of criminal procedure, contrary to Article 367 § 2 of the Code of Criminal Procedure, in basing his conviction on the statement he gave to the police in the presence of a defence lawyer, which [in the appellant’s view] constitutes unlawfully obtained evidence for the purposes of Article 9 § 2 of the Code of Criminal Procedure, and that the record of his questioning as a suspect by the police (in the presence of a defence lawyer) should thus have been excluded from the case file. In so doing, the appellant challenges the reasoning of the second-instance judgment to the effect that the lawfulness of the evidence was not affected by the appellant’s arguments that during his apprehension and arrest he had not been given food until he had agreed to be represented by M.R. These arguments of the appellant were refuted by the second-instance court on the basis of all the formally established information contained in the record of [his] questioning in the presence of a lawyer on 14 March 2007. This Court notes that [the complaint] regarding the question of the presence of a lawyer [during the questioning], as a legal requirement for the lawfulness of evidence obtained in this way during the police investigation, relates to two objections. The first objection concerns the restriction of access to the lawyer of [the defendant’s] own choosing, and the second objection relates to the pressure exerted on the suspect through the denial of food (Article 225 § 8 of the Code of Criminal Procedure), which, according to the appeal, eventually made him accept legal representation by the lawyer imposed on him, M.R., although his parents had already engaged the services of G.M. on the morning of 14 March 2007. It is to be noted that during the police criminal investigation a number of persons with a background of drug abuse, and with links to the victim Đ.V., were arrested, in particular from the neighbourhood of Gornja Vežica, and it was in the course of this action that the accused, Ivan Dvorski, was also apprehended. Only when a probable cause was established that the accused could have been the perpetrator of the offences in issue was he arrested on 14 March 2007 at 9.50 a.m. At the same time the father of the accused, who was in Croatia, whereas the accused’s mother was in Italy, was informed [of the arrest] by the police at 2.10 p.m., which shows that from that moment the father of the accused (after a telephone conversation with his mother) could have engaged the services of a lawyer for the accused, for which he would most certainly have needed some time. In such circumstances, this Court finds that the parents of the accused could not have already signed a power of attorney for the lawyer of the accused’s choice by 1.30   p.m. on the day in question. The other information from the record of the accused’s arrest and from the record of his questioning by the police shows that on 14 March 2007, as is indicated by the record of the arrest, the accused was brought to the Rijeka Police Station and, as is apparent from the record of Ivan Dvorski’s questioning by the police, the defence lawyer, M.R., was informed at 6.15 p.m. and came to the police station at 7.45 p.m. The questioning itself commenced at 8.10 p.m. and ended at 11 p.m., with a break between 10.35 p.m. and 10.38 p.m. It should be emphasised that in the introductory part of the record [of his questioning] the suspect, Ivan Dvorski, expressly stated that he had chosen M.R. as his defence lawyer and had signed the power of attorney in favour of him, and the record of the questioning shows that the defence lawyer had almost half an hour for consultation with the suspect before the questioning, in which time he was able to advise him of his rights. Thus, the relevant fact which follows from the formal procedural action described in the record of the suspect’s questioning is that the chosen lawyer came at least half an hour before the questioning commenced, and in the consultation with [the suspect] before the questioning he was able to give [the suspect] genuine legal advice as his chosen lawyer. It should also be noted that the essence of the suspect’s right to have a lawyer present during his questioning by the police lies in the necessity for legal protection of his rights, which is why the beginning, conduct and end of this formal [procedural] action is fully registered in the record [of the questioning]. This is why all arguments to the contrary, as set out in the appeal against the second-instance judgment, and particularly those relating to the need to question G.M. as the second concurrent lawyer of [the suspect’s] choosing, have no support in the content of the formal record of the suspect’s questioning of 14 March 2007, because the record contains formally registered information regarding the contact with the chosen lawyer, the time the chosen lawyer came into the Rijeka Police Station, the time the questioning of the suspect commenced, the period in which a short break took place, and the time the procedural action finished, all of which was confirmed by the suspect and the defence lawyer of his choosing by signing the record without any objections as to its content. However, irrespective of the fact that the defence of the accused in the context of police questioning formally satisfied the requirements of Article 177 § 5 of the Code of Criminal Procedure, the general thrust of the defence, as well as the substance of the defence as regards particular acts, and the confession, were provided voluntarily by the suspect, and his chosen lawyer was most certainly unable to have any influence on this, which at the same time rules out the possibility of any mental pressure being exerted on the suspect, as well as his subsequent arguments regarding the lawyer having been imposed on him during the police investigation. On the contrary, the suspect’s defence rights were fully secured, as required under the Constitution and the Code of Criminal Procedure. There is therefore no breach of Article 367 § 2 in conjunction with Article 9 § 2 of the Code of Criminal Procedure. The refusal of the request to have the record of the suspect’s questioning by the police in the presence of a lawyer of his choosing excluded from the case file as unlawfully obtained evidence does not constitute a breach of his defence rights because the record of the suspect’s questioning by the police clearly and undoubtedly shows that the lawyer who was present [during the questioning] was the lawyer of the suspect’s free choice, and this also follows from the signed power of attorney in favour of the lawyer in question, who protected the suspect’s rights during the questioning. Accordingly, the refusal of the defence’s request did not have any bearing on the lawfulness and correctness of the judgment. At the same time, it was not necessary to question the new chosen lawyer as a witness and, for the reasons set out above, the facts of the case were not insufficiently or erroneously established, as was argued in the defendant’s appeal against the second-instance judgment.” 56.     The applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 11 March 2010. He complained, inter alia , that he had been ill-treated while in police custody and that he had been forced to confess. He also complained that he had been denied the chance to have a lawyer of his own choosing conduct his defence. He reiterated his arguments from his previous appeals and added: “It is also important to stress that at the session of the Supreme Court as the court of third instance, held on 17 December 2009, the defence indicated that the applicant had been brought to the police station at 2 p.m. on 13 March 2007, and that that fact was shown in the Record of Attendance F/949, which was in the case file. The defence asked the panel [of the Supreme Court] to have a look at that record. However, after a brief examination of the case file it was established that the document in question could not be found, and that it would be looked at later. However, the judgment of the Supreme Court, acting as a third-instance court, shows that the document had [still] not been found ...” 57.     On 16 September 2010 the Constitutional Court dismissed the applicant’s constitutional complaint. The Constitutional Court, endorsing the reasoning of the Supreme Court, noted that the proceedings as a whole had been fair and that there was no evidence in the case file that the applicant had been ill-treated while in police custody. II.     RELEVANT LAW A.     Domestic law 58.     The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette nos. 56/1990, 135/1997, 113/2000, 28/2001 and 76/2010) read as follows. Article 23 “No one shall be subjected to any form of ill-treatment ...” Article 29 “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law. In the event of suspicion of a criminal offence or criminal charges [being brought], the suspect, defendant or accused shall have the right: ... –     to defend himself in person or with the assistance of a defence lawye