CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 avril 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s701081D1 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:left } .sE0372AB5 { width:21.8pt; text-indent:0pt; display:inline-block } .sBF0FE613 { width:36pt; text-indent:0pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB206C230 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sB813FB12 { width:198.97pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       SECOND SECTION               CASE OF MILANKOVIĆ AND BOŠNJAK v. CROATIA   (Applications nos. 37762/12 and 23530/13)                 JUDGMENT     STRASBOURG   26 April 2016       FINAL   12/09/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Milanković and Bošnjak v. Croatia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Işıl Karakaş, President ,   Julia Laffranque,   Paul Lemmens,   Valeriu Griţco,   Ksenija Turković,   Stéphanie Mourou-Vikström,   Georges Ravarani, judges , and Stanley Naismith, Section Registrar, Having deliberated in private on 15 March 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos.   37762/12 and 23530/13) 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 two Croatian nationals, Mr Vladimir Milanković and Mr Drago Bošnjak (“the applicants”), on 29 May 2012 and 29 March 2013 respectively. 2.     The first applicant was represented by Mr M. Umićević, a lawyer practising in Zagreb, and the second applicant was represented by Mr   D.   Rešetar, a lawyer practising in Osijek. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     The applicants complained, in particular, of a lack of relevant and sufficient reasons for their prolonged pre-trial detention, contrary to Article   5 § 3 of the Convention. 4.     On 8 November 2013 the first applicant’s complaint was communicated to the Government, and on 17 July 2013 the second applicant’s complaint was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1962 and 1958 respectively and live in Sisak. A.     Criminal proceedings against the applicants 6.     On 20 June 2011 the Sisak-Moslavina Police Department ( Policijska Uprava Sisačko-moslavačka ; hereinafter: the “police”) lodged a criminal complaint against the applicants and one other person, alleging that in 1991 and 1992 they had committed war crimes against the civilian population in the area of Sisak and Banovina. 7.     Having collected extensive evidence in the course of the preliminary investigation, on 22 June 2011 the Osijek County State Attorney’s Office ( Županijsko državno odvjetništvo u Osijeku ) requested an investigating judge of the Osijek County Court ( Županijski sud u Osijeku ) to open an investigation in respect of the applicants on suspicion of war crimes against the civilian population, as alleged in the criminal complaint lodged by the police. 8.     The investigating judge questioned the applicants in connection with the request of the Osijek County State Attorney’s Office. Both applicants denied the allegations against them. 9.     On 22 June 2011 the investigating judge opened an investigation in respect of the applicants on suspicion of war crimes against the civilian population. The investigating judge found, on the basis of the available material, that there was a reasonable suspicion that the first applicant, acting in his capacity as commander of police combat units in the area of Sisak, had ordered and carried out arbitrary arrests and ill-treatment of civilians, and that he had failed to prevent, supress and punish arbitrary arrests and searches and seizures, as well as ill-treatment and killings perpetrated by his subordinates. With regard to the second applicant, the investigating judge found that there was a reasonable suspicion that, as a member of a special police unit of the Sisak police, he had organised a group which had carried out arbitrary arrests, ill-treatment and killings. 10.     During the investigation the investigating judge heard evidence from the applicants and questioned numerous witnesses. He also obtained a number of relevant forensic reports on the crime-scene examinations, autopsies and ballistic expertise, and voluminous evidence and documentation concerning the actions of the police units in Sisak at the relevant time. 11.     On the basis of the evidence obtained during the investigation, on 16   December 2011 the Osijek County State Attorney’s Office indicted the applicants in the Osijek County Court on charges of war crimes against the civilian population. The first applicant was charged with twenty-four counts of arbitrary arrests, ill-treatment and the killing of civilians, and the second applicant with four counts of ill-treatment and the killing of civilians. The relevant part of the indictment concerning the applicants’ participation in those events reads: “I. Defendant Vladimir Milanković in the period between July 1991 and June 1992, while defending the wider area of Sisak and Banovina from armed attacks carried out by paramilitary formations of a part of the local Serbian population and the Yugoslav People’s Army in the conflict on the Constitutional and territorial integrity of the Republic of Croatia, ... as a commander of the police units in the wider area of Sisak and Banovina ... authorised thereby to give orders to all police units and responsible for [securing] compliance with and application of the laws of war and international humanitarian law relative to the protection of civilian persons on that territory and for the humane treatment of prisoners of war, aware that, due to the conflict and occupation of an important part of Banovina and the terrorising and expulsion of the non-Serbian population from the occupied territories, intolerance towards the Serbian citizens of Sisak was growing, that the security situation in the city was ... extremely complex, that inter-ethnic relations were very tense, that there was a perception amongst the Croatian and other non-Serbian citizens of Sisak that all Serbs were collectively responsible for the war, ... at the same time aware that the police units under his command were mostly composed of members of the local population affected by the suffering, that amongst the members of his subordinate police units there were some individuals who had been previously in conflict with the law, while the members of the reserve police units had not been instructed about or trained on all the obligations arising from the norms of international laws of war and humanitarian law, aware that in the Sisak area members of his subordinate units frequently and without any legal basis carried out searches [and seizures] in the houses and flats of persons of Serbian origin, ... who were, in the course of these unlawful actions, often arrested ... although aware that the arrested persons were subjected to unlawful actions, that during questioning they were accused of collaboration with the enemy, offended, humiliated and coerced, that some of them were physically and psychologically ill-treated and that grave bodily injuries were inflicted on them, and that already on 4   August 1991, during one such intervention ... V.B. [was arrested and subsequently] brutally beaten by a number of unknown members of the reserve police unit ..., and that the numerous injuries he had sustained led to his death the same evening in the Sisak hospital, although aware that in the above-noted circumstances, if he failed to take timely and adequate measures, the members of his subordinate units would continue their unlawful actions against the citizens of Sisak of Serbian origin and their inhumane treatment of prisoners of war, although under the commonly recognised rules of international laws of war and humanitarian customary law relative to the protection of civilian persons, and the command responsibility for the acts of subordinates in times of armed conflict, contrary to Articles 3 § 1 (a) and (c), 13, 27, 31 and 32 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Article 4 §§ 1 and 2 (a) and Article 13 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (Protocol II), Articles 75, 86 and 87 of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I) and Article 3 § 1 (a) and (c) and Article 13 of the Third Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, he was required to take measures to prevent, supress and punish such unlawful actions, he failed to do so. On the contrary, by using his authority as commander of the police units, he prevented the taking of necessary measures to identify the direct perpetrators and thereby condoned the unlawful actions of his subordinates and encouraged them to take such actions, accepting that they would continue with their actions and condoning their consequences. Meanwhile he also personally participated in ill-treatment and attacks on certain civilians and ordered the unlawful detention of a number of civilians of Serbian origin ... II. Defendant Drago Bošnjak in the second half of August 1991, ..., as a member of the special police unit V. of the Sisak Police Department, together with, at present, unknown members of that unit, ..., in order to carry out coercion and revenge on citizens of Serbian origin, contrary to Articles 3 § 1 (a) and (c), 13, 27 and 32 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Article 4 §§   1 and 2 (a) and Article 13 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (Protocol II), organised and led a group of unknown members of the said unit with whom he carried out unlawful arrests, ill-treatment and the killing of persons of Serbian origin ...” 12.     The applicants objected to the indictment. On 27 January 2012 a three-judge panel of the Osijek County Court confirmed the existence of a reasonable suspicion that they had committed the offences listed in the indictment, and sent the case to trial. 13.     At a hearing held on 21 May 2012 before the Osijek County Court the applicants pleaded not guilty to the charges. 14.     In the further course of the proceedings a number of hearings were held before the Osijek County Court, notably on 11-13 June; 2-4 and 9-11   July; 4-5 and 17-19 September; 9-10 and 15-17 October; 5, 7, 19, 20-21   November, 11-12 December 2012; as well as on 4-5 and 18-20 February; 18-20 March; 29 April; 14 and 28 June; 26 August; 29 September; and 14-16 October 2013. Several witnesses were questioned and voluminous evidence was examined. 15.     The closing hearing was held on 2 December 2013. By a judgment of 9 December 2013 the Osijek County Court found the first applicant guilty as charged and sentenced him to eight years’ imprisonment. It acquitted the second applicant on the grounds of lack of evidence. 16.     The first applicant challenged the first-instance judgment before the Supreme Court ( Vrhovni sud Republike Hrvatske ), alleging a number of substantive and procedural flaws. The Osijek County State Attorney’s Office also lodged an appeal before the Supreme Court, challenging the acquittal of the second applicant and complaining that the sentence given to the first applicant was lenient. 17.     On 10 June 2014 the Supreme Court upheld the acquittal of the second applicant and increased the first applicant’s sentence to ten years’ imprisonment. The judgment of the Osijek County Court thereby became final. B.     Decisions on the applicants’ detention during the investigation 18.     On 20 June 2011 the applicants were arrested in connection with the criminal complaint lodged against them by the police (see paragraph 6 above). 19.     On 22 June 2011 the investigating judge ordered the applicants’ pre-trial detention for one month under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). The relevant part of the decision reads: “As an investigation has been opened in respect of the defendants concerning the offences at issue, the general condition [related to the existence of reasonable suspicion] for ordering detention against ... the second defendant Vladimir Milanković and the third defendant Drago Bošnjak has been met. ... A request for the questioning of 232 witnesses has been made. Most of these witnesses live in the Sisak area and most of them still work or have worked as police officers ... who were subordinate to the second defendant Vladimir Milanković. Specifically, in the period at issue the second defendant Vladimir Milanković was a deputy to the Chief of the Sisak Police Department ... and the real commander of the entire police force [in the Sisak area]. The records of the police interviews show that several witnesses who should be questioned [during the investigation] are in fear of the second defendant because they gave statements concerning the impugned actions ... and the second defendant was their superior in the period at issue. Furthermore, amongst the witnesses – including victims who have been ill-treated or are family members of the victims, there is a fear of the defendant and the available material in the case file shows that the witnesses have been threatened ... There is therefore a risk of collusion, [that is to say a risk] that the defendant could, if at large, hinder the investigation by influencing the witnesses. Thus detention under Article 102 § 1 (2) of the Code of Criminal Procedure is justified. Furthermore, since the defendant ... has been charged with individual and command responsibility for the unlawful deprivation of liberty and ill-treatment of thirty-eight civilians of Serbian origin and the killing of thirty-one persons of Serbian origin from the Sisak area, all of which was perpetrated in a particularly brutal manner, including entire families irrespective of the sex or age [of the victims], and in view of the fact that the criminal offence at issue carries a sentence of more than twelve years’ imprisonment, and also the circumstances described in [the decision on opening of the investigation], ... it follows that detention under Article 102 § 1 (4) of the Code of Criminal Procedure is justified. Detention under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure is also justified in respect of the third defendant Drago Bošnjak. ... A number of witnesses who should be questioned during the investigation, and who were members of unit V., have given different statements about the [relevant] events from those given by the defendant ... which suggests that there is a risk that if at large he could hinder the conduct of the investigation by influencing these witnesses ... The same circumstances which have been stated above concerning the first and the second defendants accordingly apply to the third defendant with regard to the existence of a risk that if at large they could continue with threats to the mentioned witnesses, who have already been threatened several times concerning their statements against the defendants in the proceedings at issue. Thus the detention under Article 102 § 1 (2) of the Code of Criminal Procedure is justified. In respect of the third defendant, reasons for detention under Article 102 § 1 (4) of the Code of Criminal Procedure also exist. In particular, he is suspected of individual responsibility in the commission of war crimes against the civilian population and arbitrary arrests, ill-treatment and the killing of two families Vi. and T. in a highly brutal manner. The description of the offences [referred to in the decision on opening of the investigation] suggests that the circumstances of the offences were particularly serious. The offences were motivated by revenge and ethnic discrimination and were committed in a highly brutal manner against civilians and entire families ... Detention under Article 102 § 1 (4) of the Code of Criminal Procedure is therefore justified.” 20.     The applicants appealed against the decision of the investigating judge before a three-judge panel of the Osijek County Court, arguing that it lacked the relevant reasoning. 21.     On 5 July 2011 a three-judge panel of the Osijek County Court dismissed the applicants’ appeals as unfounded, endorsing the reasoning of the investigating judge. In particular it noted the following:   “There is therefore a reasonable suspicion that the defendants committed the offences alleged [in the decision on opening of the investigation] and thus the general condition for ordering pre-trial detention under Article 102 § 1 of the Code of Criminal Procedure has been met. The impugned decision contains sufficient reasoning as to the existence of a reasonable suspicion, and the appeal arguments, concerning the manner in which the offences were committed or the extent of the criminal wrongdoing relate to something which will be examined during the proceedings. At this stage of the proceedings the existence of a reasonable suspicion is a sufficient condition for ordering pre-trial detention ... and when examining an appeal against the decision ordering detention, the second-instance court is not authorised to examine the facts with regard to the actual existence of the offences at issue or the criminal responsibility of the perpetrator. The justification for pre-trial detention under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure in respect of the defendants follows from the material in the case file. In this respect the impugned decision provided relevant and detailed reasons, which this second-instance panel accepts. ... Furthermore, the appeal arguments that in the case at issue the same purpose of the detention could be achieved by one of the alternative measures under Article 90 of the Code of Criminal Procedure cannot be accepted ... In view of all the circumstances of the case, this panel finds that detention under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure is necessary and the only appropriate measure for the prevention of collusion, especially given the particular gravity of the offences at issue.” 22.     On 19 July 2011 the investigating judge extended the applicants’ detention for a further two months under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He found that some more witnesses needed to be questioned and that some of them had been threatened with regard to their statements in the criminal proceedings at issue. The investigating judge also reiterated the previous findings concerning the gravity of the charges against the applicants. 23.     The applicants appealed against that decision and on 1 August 2011 a three-judge panel of the Osijek County Court dismissed their appeals as ill-founded, reiterating its previous arguments. 24.     On 19 September 2011 the investigating judge extended the applicants’ detention for a further three months under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He held that thus far, out of 232 witnesses, sixty-one had been questioned and that the remainder should be questioned within a period of three months. The investigating judge also reiterated the specific circumstances of the case justifying detention on the grounds of gravity of the charges. 25.     The applicants challenged that decision, arguing that their continued detention was not justified. On 30 September 2011 a three-judge panel of the Osijek County Court dismissed their appeals as ill-founded, endorsing the findings of the investigating judge. 26.     On 28 October 2011 the first applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), contending that his pre-trial detention was not based on relevant and sufficient reasons. 27.     On 11 November 2011 the Constitutional Court dismissed the first applicant’s constitutional complaint, endorsing the reasoning of the Osijek County Court. The Constitutional Court in particular stressed: “The Constitutional Court reiterates its opinion, on which the appellant relies in his constitutional complaint, that the mere existence of a ‘reasonable suspicion’ is not sufficient after a certain lapse of time to justify pre-trial detention. It is necessary in such instances, (even under) the case-law of the European Court [of Human Rights], to ascertain the conditions for a possibility [of detention]: a) the existence of ‘relevant and sufficient’ reasons justifying [the detention], and b) whether the competent criminal justice authorities displayed the necessary diligence in the conduct of the proceedings. ... Since Article 102 § 1 (4) of the Code of Criminal Procedure does not explicitly provide for a legitimate aim of detention, as provided for in the other relevant provisions on detention, it is particularly important that the competent criminal justice authorities correctly establish the necessity of applying Article 102 § 1 (4) of the Code of Criminal Procedure ... In view of the findings of the Osijek County Court, and taking into account the sentence of imprisonment which can be imposed in this specific case, as well as the gravity of the charges, the Constitutional Court finds that the decisions of the investigating judge and the three-judge panel of the Osijek County Court comply with the relevant opinions and requirements when extending the pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure ...” C.     The first applicant’s detention pending trial 28.     Following the filing of the indictment against the applicants in the Osijek County Court (see paragraph 11 above), on 19 December 2011 a three-judge panel of that court extended the first applicant’s detention pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads: “There is a reasonable suspicion (and therefore the existence of the general condition for pre-trial detention) that the accused Vladimir Milanković and Drago Bošnjak committed the [war crimes against the civilian population]. ... The second condition [for detention] under Article 102 § 1 (4) of the Code of Criminal Procedure has also been met. This follows from the indictment against the accused Vladimir Milanković and Drago Bošnjak, which describes the physical and mental ill-treatment of the detained civilians, who were beaten until they lost consciousness, subjected to such brutality as to cause bodily harm, arbitrary arrests and beatings. [The accused are suspected of] shooting and bombing family houses, locking civilians in basements without windows or light, taking civilians to unknown locations and shooting them or killing them with hard or sharp objects, and the killing of the entire V. family and part of the T. family out of revenge and ethnic discrimination ... Therefore both defendants are suspected of particular cruelty and mercilessness ..., which, in view of the number of [victims] and the consequences of such conduct, the impugned offences in their entirety significantly surpass the usual circumstances pertinent to such grave offences. This justifies detention under Article   102 § 1 (4) of the Code of Criminal Procedure in respect of the accused Vladimir Milanković and Drago Bošnjak ...   The preventive measures [under the Code of Criminal Procedure], in view of the specific circumstances of the offences at issue, could not achieve the purpose of detention ...” 29.     The first applicant appealed against that decision to the Supreme Court ( Vrhovni sud Republike Hrvatske ), challenging the necessity of and the lack of relevant and sufficient reasons for his continued detention. 30.     On 13 January 2012 the Supreme Court dismissed the first applicant’s appeal, upholding the decision of the Osijek County Court. The relevant part of the decision reads: “The impugned conduct of both accused, which includes ill-treatment and other extreme forms of inhumane treatment of civilians, and in the case of the accused Vladimir Milanković also of prisoners of war, some of whom were killed, as well as the failure to prevent such conduct by [Vladimir Milanković’s subordinates] ... suggests a particularly high level of brutality, mercilessness and unimaginable cruelty. Taking also into account that the seriousness of the impugned conduct of both accused on account of its intensity, recurrence and modality, as well as the period in which it took place, significantly surpasses the usual circumstances and consequences of such offences, which are in themselves particularly grave, [the Supreme Court finds] that the circumstances of the offence are particularly grave [justifying detention] under Article 102 § 1 (4) of the Code of Criminal Procedure. The appellate arguments of both accused that the purpose of detention could be achieved by alternative preventive measures cannot be accepted ... as there is public interest justifying the restriction of the accused’s right to personal liberty, guaranteed under the Constitution and the European Convention on Human Rights. The fact that the impugned offences took place twenty years ago does not diminish their gravity and their moral public condemnation ... In particular, the conclusion as to the existence of particularly grave circumstances [of the offences] follows from the specific facts and the conduct with which the accused are charged, and they significantly surpass the usual circumstances related to the commission of such offences. The appellate arguments challenging the existence of a reasonable suspicion, and the assessment of evidence, are not relevant for the decision on detention, as at this stage of the proceedings the existence of a reasonable suspicion follows from the indictment. The second-instance panel, when examining an appeal against a decision on detention, cannot examine the factual findings or the criminal responsibility of the accused.” 31.     The first applicant challenged the decision of the Supreme Court by lodging a constitutional complaint with the Constitutional Court. He argued that his continued detention had been arbitrary and contrary to the Constitution and the Convention. 32.     On 2 March 2012 the Constitutional Court dismissed the first applicant’s constitutional complaint as unfounded. It reiterated the necessity of examining in detail all the relevant circumstances of the case when ordering and extending pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure (see paragraph 27 above), noting in particular: “The Constitutional Court accepts the findings of the Supreme Court ... that detention is justified by the public interest in the case. The Supreme Court correctly stated that the fact that the impugned offences took place twenty years ago does not diminish their gravity or their moral public condemnation ...” 33.     On 9 March 2012 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 34.     The first applicant appealed against that decision to the Supreme Court. On 4 April 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that, in the particular circumstances of the case, his detention had not been disproportionate or unjustified. 35.     On 4 June 2012 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on the seriousness of the specific charges against him and finding that the overall duration of his detention had not been excessive. 36.     The first applicant challenged that decision before the Supreme Court, reiterating his previous arguments. On 29 June 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that the public interest related to his remand in custody prevailed over his right to liberty. 37.     The first applicant lodged a constitutional complaint before the Constitutional Court against the decision of the Supreme Court, arguing in particular that his continued detention was not based on relevant and sufficient reasons. 38.     On 26 July 2012 the Constitutional Court dismissed the first applicant’s constitutional complaint, endorsing the reasoning of the Supreme Court. 39.     On 27 August 2012 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on its previous findings as to the gravity of the charges against him. 40.     The first applicant appealed against that decision to the Supreme Court, invoking his state of health related to an injury to his right hip and challenging his continued pre-trial detention. 41.     On the basis of medical documentation submitted by the first applicant, on 26 September 2012 the Supreme Court found that the relevant information concerning his health had not been known to the first-instance court when extending his detention; it thus remitted the case and ordered the first-instance court to examine the matter. 42.     On 17 October 2012 a three-judge panel of the Osijek County Court, relying on an expert report which indicated that there was no imminent risk to the first applicant’s health or necessity for urgent surgery, extended the first applicant’s detention. 43.     The first applicant appealed against that decision before the Supreme Court. On 15 November 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that the Osijek County Court had correctly established all the relevant circumstances of the case warranting the extension of his detention. 44.     The first applicant challenged the decision of the Supreme Court before the Constitutional Court, arguing that his continued detention was no longer reasonable or justified. On 8 January 2013 the Constitutional Court dismissed his complaint as ill-founded, upholding the decision of the Supreme Court. 45.     On 14 January 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) on the grounds that, in the particular circumstances of the case at hand, there was nothing calling into question the necessity of his continued detention. 46.     The first applicant appealed against that decision to the Supreme Court and on 30 January 2013 the Supreme Court dismissed his appeal as ill-founded. The Supreme Court held as follows: “It is therefore, in the view of this court, justified to remand the accused Vladimir Milanković in custody under Article 102 § 1 (4) of the Code of Criminal Procedure ... In view of the fact that the purpose of detention under the cited provision is to prevent persons whose actions provoke particular moral condemnation from being at large, the appeal arguments, according to which the decision of the first-instance court with regard to the necessity of detention lacks the relevant reasoning, cannot be accepted.” 47.     The first applicant challenged that decision before the Constitutional Court. On 15 March 2013 the Constitutional Court dismissed his complaint, endorsing the findings of the Supreme Court. 48.     On 28 March 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 49.     The first applicant challenged that decision before the Supreme Court. On 17 April 2013 the Supreme Court dismissed his appeal on the grounds that there was a persisting public interest warranting his detention. 50.     On 14 June 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its findings as to the particular gravity of the charges against him. 51.     The first applicant appealed against that decision to the Supreme Court and on 5 July 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the findings of the Osijek County Court. 52.     The first applicant then lodged another constitutional complaint before the Constitutional Court, challenging his continued detention. On 26   August 2013 the Constitutional Court accepted his complaint and remitted the case to the Osijek County Court on the grounds that it had failed to indicate in sufficient detail the specific reasons warranting the first applicant’s continued detention. The Constitutional Court explained the relevant principles in the following manner:   “Under Article 102 § 1 (4) of the Code of Criminal Procedure on the purpose and aim of detention, and bearing in mind the [Court’s] case-law, which the Constitutional Court accepts, detention on the grounds of ‘particularly grave circumstances’ of an offence ... cannot by itself serve as a purpose. The consequences of the fact that a criminal offence is particularly grave and that its social dangerousness and the ‘extent’ of society’s condemnation are expressed through the possibility of imposing a (long) sentence, are reflected both subjectively and objectively. A defendant facing serious charges and a possibility of incurring a long sentence inevitably has a subjective [incentive] to escape and/or to hinder the proper conduct of the proceedings and/or to reoffend. However, objectively ... there is a possibility of ‘disturbance of the public’, which requires additional care and protection of the public interest. ... ... Accordingly, the extension of detention under Article 102 § 2 (4) of the Code of Criminal Procedure cannot be grounded on a simple repetition of the description of the offence imputed [to a defendant] ... but requires an analysis and a detailed reasoning of all the facts and circumstances, particularly those related to the personality of the defendant, the public interest in his or her remand in custody, as well as the conduct and the results of the proceedings.” 53.     On 2 September 2013 a three-judge panel of the Osijek County Court examined the specific circumstances of the case and extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads: “The release of the accused Vladimir Milanković in respect of whom there is a reasonable suspicion that he has committed the offences at issue, would create public disturbance, particularly amongst members of the Serbian minority, specifically those who were the victims of these offences in the area of Sisak. It should be borne in mind that this concerns not only Sisak, as a small community, but also the surrounding rural areas where the consequences of the war are still present and where the process of normalisation of mutual relations and peaceful coexistence of the citizens, irrespective of their ethnic background, is still ongoing. Thus, the release of the accused from detention would not only disturb the population [of this area] but would also diminish [citizens’] confidence in the judiciary and the social [order] as such. This is especially so given that the mission of the judiciary is not only prosecution, establishing of guilt and punishment of the perpetrators of criminal offences, but also the [creation of a sense] of justice and rule of law from the perspective of citizens.” 54.     The first applicant appealed against that decision to the Supreme Court, challenging the extension of his detention. On 27 September 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court. 55.     The first applicant challenged the decision of the Supreme Court by lodging a constitutional complaint before the Constitutional Court. On 7   November 2013 the Constitutional Court dismissed the complaint as ill-founded. The relevant part of the decision reads: “... the Constitutional Court accepts the fact that the Supreme Court, in compliance with the decision ... of 26 August 2013, in the impugned decision provided reasons justifying the necessity of detention under Article 102 § 1 (4) of the Code of Criminal Procedure in the circumstances of the present case. In particular, the Supreme Court provided reasons showing that in view of the local circumstances in Sisak and the [Court’s] case-law relevant to the prevention of disturbance to public order (in the terminology of the Supreme Court: public disturbance), the appellant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure was justified. ... ... For these reasons the Constitutional Court finds that the competent courts provided sufficient reasons for their decisions, as required by the decision of the Constitutional Court ... of 26 August 2013. ...” 56.     On 26 November 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 57.     Following the first applicant’s conviction at first-instance on 9   December 2013 (see paragraph 15 above), he was remanded in custody pending a final judgment.   D.     The second applicant’s detention pending trial 58.     On 19 December 2011, following the filing of the indictment against the applicants in the Osijek County Court (see paragraph 11 above), a three-judge panel of that court extended the second applicant’s detention pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure on the grounds of gravity of the charges (see paragraph 28 above). 59.     The second applicant appealed against that decision to the Supreme Court, challenging the necessity of his detention and complaining of a lack of relevant and sufficient reasons for ordering it. On 13 January 2012 the Supreme Court dismissed his appeal, upholding the decision of the Osijek County Court (see paragraph 30 above). 60.     On 9 March 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments (see paragraph 33 above). 61.     The second applicant challenged that decision before the Supreme Court. On 4 April 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that, in the particular circumstances of the case, his detention was not disproportionate or unjustified (see paragraph 34 above). 62.     The second applicant lodged a constitutional complaint before the Constitutional Court against the decision of the Supreme Court, arguing that his continued detention was not justified. On 31 May 2012 the Constitutional Court dismissed his constitutional complaint as ill-founded on the grounds that the Osijek County Court and the Supreme Court had provided relevant and sufficient reasons for his continued detention. 63.     On 4 June 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). They relied on the particularly grave circumstances of the specific charges against him and found that the overall duration of his detention had not been excessive (see paragraph 35 above). 64.     The second applicant challenged that decision before the Supreme Court. On 29 June 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that the public interest in his being remanded in custody prevailed over his right to liberty (see paragraph 36 above). 65.     On 27 August 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on its previous findings as to the gravity of the charges against him (see paragraph 39 above). 66.     The second applicant challenged that decision before the Supreme Court. On 26 September 2012 the Supreme Court dismissed his appeal as ill-founded, endorsing the decision of the Osijek County Court. 67.     On 21 November 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads: “It is alleged in the confirmed indictment that there is a reasonable suspicion that the accused Drago Bošnjak, in the second half of August 1991, while defending the wider area of Sisak and Banovina from armed attacks carried out by paramilitary formations of part of the local Serbian population and the Yugoslav People’s Army, as a member of special police unit V. of the Sisak Police Department, together with several unidentified members of that unit, organised and led a group of unidentified members of the said unit with whom he carried out unlawful arrests, ill-treatment and the killing of persons of Serbian origin. Five members of the Vi. family as well as [a certain] N.T. were killed, while [N.T.’s] sons Z. and B. were taken to an improvised detention camp and beaten up, after which they disappeared. The alleged conduct of the accused, especially given the intensity and recurrence of the acts as well as the period in which they took place, was in itself particularly merciless and cruel. In the view of this court, the particularly grave circumstances of the offence surpass the usual circumstances and consequences of such offences and thus justify the detention under Article 102 § 1 (4) of the Code of Criminal Procedure.” 68.     The second applicant appealed against that decision to the Supreme Court, arguing that his detention was not justified. On 7 December 2012 the Supreme Court dismissed his appeal as ill-founded. The relevant part of the decision reads: “... the finding of the first-instance court that the grounds for the continued detention of the accused Drago Bošnjak under Article 102 § 1 (4) of the Code of Criminal Procedure still apply is correct. The confirmed indictment shows a relevant degree of reasonable suspicion that the accused committed the offence under Article 120 § 1 of the Criminal Code. Thus the general statutory condition under Article 102 § 1 of the Code of Criminal Procedure has been met. There is a reasonable suspicion that the accused, in the second half of August 1991, while defending the wider area of Sisak and Banovina from armed attacks carried out by paramilitary formations of part of the local Serbian population and the Yugoslav People’s Army, as a member of special police unit V. of the Sisak Police Department, together with several unidentified members of that unit, organised and led a group of unidentified members of the said unit with whom he carried out unlawful arrests, ill-treatment and the killing of persons of Serbian origin. Five members of the Vi. family as well as [a certain] N.T. were killed, while [N.T.’s] sons Z. and B. were taken to an improvised detention camp and beaten up, after which they disappeared. Contrary to the appeal arguments, the behaviour of the accused described above, particularly given the intensity and number of impugned acts and the period in which they took place, was in itself particularly merciless and cruel. In the view of this second-instance court, the particularly grave circumstances of the offence surpass the usual circumstances and consequences of such offences and thus justify the detention under Article 102 § 1 (4) of the Code of Criminal Procedure. The remaining appeal arguments concern the assessment of evidence and the proceedings and are not decisive for the decision on detention. They are a subject of discussion before the first-instance court. In addition, the detention of the accused Drago Bošnjak does not raise an issue under the principle of proportionality with regards to the gravity of the offence, the sentence which could be expected and the necessity of detention.” 69.     The second applicant lodged a constitutional complaint against the decision of the Supreme Court, challenging the necessity of his detention. On 31 January 2013 the Constitutional Court dismissed it as ill-founded. The relevant part of the decision reads: “Bearing in mind all the circumstances of the present case enumerated in the impugned decisions, the fact that there is a reasonable suspicion that the appellant (in detention since 20 June 2011) ‘committed an offence under Article 120 § 1 of the Criminal Code by which a general statutory condition under Article 102 § 1 of the Code of Criminal Procedure’ has been satisfied, and ‘in particular the intensity and recurrence of the impugned acts’, the Constitutional Court finds that, notwithstanding the presumption of the appellant’s innocence (and the fact that he has been in detention for nineteen months) the compelling public interest outweighs the accused’s right to liberty. Therefore, the Constitutional Court finds that the detention ‘with regard to the gravity of the offence and the sentence which could be expected’ is entirely proportionate to the legitimate aim pursued, and that the impugned decision does not limit the rights or freedoms of the appellant contrary to [the Constitution].” 70.     On 5 February 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 71.     The second applicant appealed to the Supreme Court, challenging the existence of relevant and sufficient reasons for his detention. On 27   February 2013 the Supreme