CEDH · CASELAW;COMMUNICATEDCASES;ENG — 26 mai 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 26 May 2016   SECOND SECTION Application no. 79249/13 Danijel KLASIĆ against Croatia lodged on 9 December 2013 STATEMENT OF FACTS The applicant, Mr Danijel Klasić, is a Croatian national, who was born in   1976 and lives in Petrinja. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 12 August 2008 L.S., the head of the Topolovec post office, lodged a criminal complaint with the Sisak police, alleging that at about 10.15 a.m. that day a masked and armed man had robbed the Topolovec post office. At 7 a.m. on 30 September 2008 the applicant was taken to the Sisak police station He was informally interviewed in connection with the above-mentioned robbery until almost 12 noon, without the presence of a defence lawyer. A lawyer, A.B., was summoned at 11.55 a.m. the same day and the applicant’s formal questioning by the police began. According to the written record of the police questioning, the applicant confessed to having robbed the Topolovec post office. The record was signed by both the applicant and his defence lawyer. On 30 September 2008 an investigating judge of the Sisak County Court ordered that the applicant be remanded in police custody in connection with the robbery. He was to be held for twelve hours, until 6.40 p.m. on 1   October 2008. On 1 October 2008 the same judge extended the applicant’s police custody for a further thirty-six hours, starting from 1 p.m. on that day. At 1.30 p.m. on the same day the investigating judge heard the applicant in the presence of his defence lawyer, N.K. The applicant decided to remain silent. On 2 October 2008 an investigation was opened against the applicant in the Osijek County Court. On 24 November 2008 the Sisak County State Attorney’s Office indicted the applicant in the Sisak County Court on charges of armed robbery. At a hearing held on 23 March 2009 the applicant, represented by his lawyer, D.Š., gave evidence. He denied the charges against him. The applicant’s lawyer asked that witnesses, and in particular lawyer A.B., be heard as to the circumstances of the applicant’s questioning by the police. As to his questioning by the police on 30 September 2009, the applicant stated as follows: “I did not say what is stated in the written record of [my] questioning [by the police] on 30 September 2008. That record was drafted by police officers. They copied the statements of witnesses, namely an employee of the post office, and then they put it all on me, that is to say they wrote that I had said it. I was questioned between 7 a.m. and noon without a lawyer in a locked room in the presence of four police officers. At 12.15 p.m. a lawyer came, after which a police officer dictated the written record. I signed that record because I did not know what was going on, I did not know what I was signing and I did not read what had been written.” The record of the court hearing states as follows: “To a question by the Deputy State Attorney the accused answers that the police fabricated some parts of his ‘statement’, that is to say that the police led him to give answers which suited them. To a question by the defence lawyer the accused answers that his questioning by the police was carried out in such a manner that he had no chance to speak. He consistently denied that he had committed the offence in question. He sat on a chair and four police officers were telling him that they had sufficient indication to indict him. He was mostly silent and at about 10 a.m. the police officers told him that they had sufficient evidence to indict his girlfriend S. as well, after which he started to cry and nod his head at all further questions. To a further question by the defence lawyer the accused answers that he is scared of the police because in 1994 some police officers brutally beat him because of a fight with two youngsters. To a further question by the defence lawyer the accused answers that he was not at all aware what he was signing, he did not read the written record, the lawyer present did not explain to him what was going on but only said that she was a friend of his family, a friend of his grandparents. ...” The part of the record of the same hearing concerning the closing arguments of the applicant’s defence lawyer reads as follows: “The defence lawyer in his closing arguments alleges that ... the evidence given by the accused on 30 September 2008 is unlawful and ... should have been excluded from the proceedings. [He states as follows]: ... questioning of the accused was carried out the whole morning in an ‘informal manner’ under the pretence of it being only an informal interview, in a locked room under psychological pressure [on the accused]. After that his ‘proper questioning’ under Article 177(5) of the Code of Criminal Procedure was carried out by means of a police officer dictating the accused’s statement without letting the accused speak freely, and by then asking the accused to confirm the veracity of what he [the police officer] had dictated. [All this] could not be accepted as lawful evidence. In such a situation an accused does not truly know when he is being informally interviewed and at what precise moment his proper questioning, which [should comply] with the rules of the Code of Criminal Procedure, has begun. Such a manner [of questioning] manipulates and restricts the accused’s rights. In my view this court should have verified these allegations by hearing the police officer who carried out [the accused’s] questioning, the officer who typed the record and the former defence lawyer. Since none of that has been done, I consider that the accused’s rights guaranteed by the Code of Criminal Procedure and the Constitution were not respected at that stage of the proceedings. ...” On the same day the Sisak County Court found the applicant guilty as charged and sentenced him to three years’ imprisonment. In finding the applicant guilty, the first-instance court relied, inter alia , on the statement he had given to the police on 30 September 2008. The relevant part of the first-instance judgment reads: “[After] having analysed the results of the evidence presented, both alone and as a whole, this court concludes without any doubt that the accused committed the offence in the manner stated in the operative part of this judgment. The court’s conclusion is based on the accused’s statement given to the Sisak police on 30 September 2008 in the presence of a defence lawyer, when he [the accused] confessed to committing the criminal offence at issue, described at length and in detail the manner in which the offence had been committed, and explained why he had done so. The accused’s allegation that the above-mentioned statement was drawn up by the police officers on the basis of previously taken witness statements is unfounded because the statement of the accused [to the police] contains many details about the manner in which the offence had been committed. The witnesses had no knowledge of such details and made no depositions in that respect ... The accused’s allegations that the Sisak police’s written record of his questioning is unlawful evidence because the questioning was carried out without the presence of a defence lawyer and that the police officers themselves drew up the written record as it pleased them [and put in the written record also] a statement he had not made, are also unfounded. The written record of the accused’s questioning shows that the accused was questioned in the presence of a defence lawyer and the accused and the defence lawyer both signed the written record.” On 17 April 2009 the applicant lodged a further appeal with the Supreme Court, which was dismissed as unfounded on 27 April 2010. The relevant part of the Supreme Court’s judgment reads: “The written record of the accused’s questioning on 30 September 2008 states that defence lawyer A.B. came at 11.55 a.m. and that the accused, Danijel Klasić, gave his consent to be defended by her, and that the questioning was concluded at 1.15 p.m. after it had been established that the accused had no objections to the written record and that the defence lawyer had been present throughout his questioning. Therefore, the written record shows that the accused’s questioning by the police was carried out in accordance with Articles 177(5) and 225(1, 2, 3 and 4) of the Code of Criminal Procedure. It is also important to stress that the accused ... did not allege that his confession had been extracted by force, threat or other means [of coercion], but only alleged that the written record had been fabricated by the police on the basis of statements given by some other persons and a lengthy informal interview that the police had conducted with him. If such allegations were true, then the accused, who did not allege that he had been unconscious or that any means of coercion had been applied, would not have signed the written record. Therefore, it is lawful evidence and it is also necessary to stress that the judgment does not rely to a significant extent on the accused’s confession to the police, but on extensive personal and material evidence.” A subsequent constitutional complaint lodged by the applicant was dismissed as unfounded on 6 May 2013. COMPLAINT The applicant complains under Article 6 §§ 1 and 3 (c) that he was questioned by the police between 7 a.m. and 11.55 a.m. on 30   September   2008 without the presence of defence counsel.     QUESTIONS TO THE PARTIES On what grounds was the applicant kept in the Sisak police station between 7 and 11.55 a.m. on 30   September 2008? What happened to the applicant during that period? Was the applicant’s right to a fair trial respected during the police questioning? In particular, was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention?