17 November 2010

FIRST SECTION
Application no. 36653/09
by Milan TRIFKOVIĆ
against Croatia
lodged on 12 June 2009

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Milan Trifković, is a Croatian national who was born in 1976 and lives in Split. He is represented before the Court by Mr T. Vukičević, a lawyer practising in Split.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date an investigation was opened in the Split County Court in respect of the applicant and fifteen other persons on suspicion that they had committed the criminal offence of the abuse of illegal drugs.
The applicant was detained on 22 November 2006 and has been in pre-trial detention ever since. On 24 November 2006 the Split County Court ordered his detention on the basis of Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure.
The applicant’s detention was extended on the same grounds several times.
On 10 November 2008 the Split County Court extended the applicant’s detention, again on the basis of Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure.
The relevant part of the decision reads:
“The criminal record ... shows that the defendant ... Milan Trifković ... [has] already been convicted of the criminal offence of the same type as the one concerned in these proceedings ...
Furthermore, the report drawn up by neuropsychiatrist ... shows that the defendant ... Milan Trifković ... [is a] user of the illegal drugs ...
Also, the defendants are charged [with having] organised a group with the aim of trafficking in illegal drugs on the island of Korčula, that they were doing [so for] a long period of time, together with J.C., who was the leader of the group and of all [the criminal] activities.
...
The above-mentioned circumstances, together with the fact that the defendants were allegedly members of a group which was continually [and for a long] period of time engaged in trafficking in illegal drugs, namely heroin, one of the heaviest drugs, and thus put at risk the health of a large number of people, justify the extension of detention in respect of the defendants ... [including] Milan Trifković ... on the basis of Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure. These circumstances justify the fear of reoffending and also amount to particularly grave circumstances [in which] the offence [is alleged to have taken place].
...”
On 13 November 2008 the applicant lodged an appeal in which he argued that the evidence thus far obtained had not implicated him in the offences in question, save for a statement given by a witness, Ž.T. However, he claimed that her statement was unreliable because it was both contradictory and hearsay evidence, and was also in contradiction to the evidence given by other witnesses. The transcripts of telephone conversations of his which had been taped did not show that he had discussed details of drug trafficking with anyone. Furthermore, no material evidence which could connect him with trafficking in illegal drugs had been found on him.
As regards the risk of reoffending, the applicant argued that even if he had been a drug addict before being detained, during the period of his detention he would surely stop being one because he could not take any drugs during his detention.
As regards the argument that he had already been convicted of the same type of offence, he argued that his previous conviction concerned the possession of a small amount of drugs for his personal use and that he had been permanently employed.
Against that background, he argued that there was no need for his further detention.
On 13 January 2009 the Split County Court again extended the applicant’s detention, doing so once more on the basis of Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure and with the same reasoning as it had previously given.
On 13 February 2009 the Supreme Court dismissed the applicant’s appeal against the decision of 10 November 2008. The relevant part of the decision reads:
“The circumstances which show that there is a risk of reoffending ... are that the defendants are charged [with having been] ... members of a criminal organisation organised by the defendant J.C. in the period between the beginning of 2003 and November 2006, [operating in] the broader area of Dubrovnik and Korčula, and in which sixteen individuals were involved and mutually connected, among whom [were] the defendants Milan Trifković and ..., all [having the] aim of purchasing, storing, transferring and selling the drug heroin in order to obtain significant material gain. They delivered heroin previously bought by the defendant J.C. in Serbia, Bosnia and Herzegovina, and Montenegro for the needs of drug addicts on the island of Korčula, in daily amounts of at least 32 grams.
Furthermore, the defendants Milan Trifković and ... have already been convicted several times for criminal offences of the same type – abuse of illegal drugs ... This shows that their previous life was not in conformity with the law and that their previous conviction has not taught them about the peril of committing criminal offences. Also, the documents in the file show that the defendants Milan Trifković and ... are users of illegal drugs ...
Therefore, the long period of engaging in such criminal activity, which shows their determination, high level of organisation and criminal resolve ..., together with the fact that they are users of illegal drugs, ... and previous conviction, amount in the view of the Supreme Court ... to specific circumstances which justify the fear that the defendants Milan Trifković and ..., if at large, would continue to commit new criminal offences of the same type ...
The decision to extend the defendants’ detention on the basis of Article 102 paragraph 1(4) of the Code of Criminal Procedure is justified and lawful in view of the fact that the ... charges concern a significant amount of the illegal drug heroin. Such a large amount of this drug, which can be divided into a large number of individual doses and thus put at risk the health of a large number of people, especially youngsters, [together with] the international elements of the offence, surpass by far the usual manner of committing such offences.
...
The defendants’ arguments pointing to the lack of evidence that they had committed the criminal offences at issue ... have no bearing on the decision [on their detention]. When deciding upon an appeal against a decision on detention, the appeal court has no competence to assess the factual background of the case or the defendants’ criminal responsibility. For detention to be ordered it suffices that the indictment and the documents in the case file indicate that there is reasonable suspicion. Neither has the principle of proportionality been infringed, because the defendant Milan Trifković has so far spent less than two years and three months in pre-trial detention ... When applying that principle, the relevant factors to be taken into account are not only the time already spent in detention but also the gravity of the criminal offences brought against the defendants and the severity of the sentence faced, as well as the need to order and extend detention.
The statement of the defendant Milan Trifković that he is not a drug addict ... is also irrelevant, because drug addiction and drug use are not the decisive motives for committing such criminal offences, and they cannot put into question the importance of all the other above-mentioned points which show at the risk of reoffending ...
...”
The applicant then lodged a constitutional complaint, which was declared inadmissible by the Constitutional Court on 29 April 2009 on the grounds that that the impugned decisions were no longer in effect because a fresh decision on his detention had been adopted in the interim on 13 January 2009.
On 20 November 2009 the Split County Court extended the applicant’s detention for a further six months, until 22 May 2010. It did not review the grounds for and duration of the applicant’s detention, but limited its assessment to the question of whether this further extension exceeded the maximum statutory limit.
In a subsequent appeal to the Supreme Court and a constitutional complaint, the applicant challenged the grounds for this extended detention and complained about the conditions of his detention.
On 11 December 2009 the Supreme Court dismissed the appeal and on 25 February 2010 the Constitutional Court dismissed the constitutional complaint. However, neither the Supreme Court nor the Constitutional Court examined the grounds for and duration of the applicant’s detention, but also limited their assessment to the question of whether the further extension exceeded the maximum statutory limit.
B.  Relevant domestic law and practice
The relevant provisions of the Code of Criminal Procedure (Kazneni zakon Republike Hrvatske, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006) read as follows:
8. General Provisions on Detention
Section 101
“(1)  Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure.
(2)  The detention measure shall be lifted and the detainee released as soon as the grounds for detention cease to exist.
(3)  When deciding on detention, in particular its duration, the court shall take into consideration the proportionality between the gravity of the offence, the sentence which ... may be expected, and the need to order and determine the duration of the detention.
(4)  The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is being held in detention and shall review as a matter of course whether the grounds and legal conditions for detention have ceased to exist, in which case the custodial measure shall immediately be lifted.
9. Grounds for Ordering Detention
Section 102
(1)  Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention:
...
(3)  where special circumstances justify the suspicion that the person concerned might reoffend ...
(4)  the charges involved relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, when detention is justified by the modus operandi [of the alleged offence] or other especially grave circumstances [in which] the offence [is alleged to have been committed].
The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows:
JUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE PRISON ADMINISTRATION
Section 17
“(1)  An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.
(2)  Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”
Section 74
“...
Premises in which the prisoners dwell shall be clean, dry and sufficiently spacious. There shall be a minimum space of 4 square metres and 10 cubic metres per prisoner in each dormitory.
...”
COMPLAINTS
The applicant complains under Article 3 of the Convention about the conditions of his detention.
He complains under Article 5 § 3 about the grounds for his pre-trial detention and its duration.
He also complains that the proceedings concerning the lawfulness of his detention were not in conformity with the guarantees provided under Article 5 § 4 of the Convention.
He further complains under Article 6 § 2 of the Convention that his right to be presumed innocent was violated in the decisions ordering and extending his detention, as the national courts repeatedly stated that he and other defendants had engaged in trafficking in illegal drugs as an organised group for a long period of time.
Under Article 13 of the Convention he complains that he has no effective remedy in respect of his Convention complaints.
Under Article 14 of the Convention he complains that he has been discriminated against in comparison to another defendant in the same proceedings who was released from detention.
QUESTIONS TO THE PARTIES
1.  Has the applicant been deprived of his liberty in breach of Article 5 § 1 of the Convention after 20 November 2009?

2.  Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? Furthermore, were the reasons relied on by the domestic courts for ordering and extending the applicant’s detention relevant and sufficient throughout the detention period as required under Article 5 § 3 of the Convention?

3.  Was the procedure by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention, in particular: (i) as regards the Constitutional Court’s decision of 29 April 2009 not to examine the merits of the applicant’s complaint on the grounds that a new decision extending the applicant’s detention had been issued in the meantime; and (ii) as regards the decisions of the Supreme Court of 11 December 2009 and the Constitutional Court of 25 February 2010 in which they refused to examine the applicant’s arguments concerning the grounds for and duration of his further detention?