In the case of Osmanović v. Croatia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Anatoly Kovler, President,
Nina Vajić,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Mřse, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
67604/10) 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 Kabir Osmanović
(“the applicant”), on 29 October 2010.
The applicant was represented by Mr N.
Sladaković, a lawyer practising in Pula. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š. Stažnik.
On 24 October 2011 the complaints concerning the
reasons for the applicant’s detention and the Constitutional Court’s decision
declaring the applicant’s constitutional complaint inadmissible were communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1985 and lives in Pula.
On 9 October 2009 the applicant was arrested on suspicion
of a breach of public peace and order.
On the same day, the Istarska Police Department (Policijska
uprava Istarska) indicted the applicant in the Pula Minor Offences Court (Prekršajni
sud u Puli) on charges that he had disturbed public peace and order in that
he and two others had attacked two off-duty police officers.
Still on the same day, the applicant was brought
before a judge of the Pula Minor Offences Court who, after she had heard the
applicant, remanded him in custody for eight days under Section 135 § 1 of the
Minor Offences Act in connection with the above charges. The reasoning reads as
follows:
“On 9 October 2009 the Istarska Police Department submitted to
this court an indictment in urgent proceedings against the accused, Kabir
Osmanović, in connection with a minor offence under section 6 of the Minor
Offences against Public Order and Peace Act, with a request that he be remanded
in custody because he had repeatedly committed similar offences. Since this
case concerns a grave breach of public peace and order, in which N.R. sustained
grievous bodily injury, and specific circumstances justify a fear that the
accused would commit the same minor offence, the judge agreed to the request
[by the police] and remands the accused in custody for a period of eight days.”
On 12 October 2009 the applicant lodged an appeal,
arguing that the decision remanding him in custody had not been sufficiently
reasoned.
On 14 October 2009 the High Minor Offences Court
(Visoki prekršajni sud Republike Hrvatske) upheld the first-instance
decision. The relevant part of the reasoning reads as follows:
“... After considering this case and the allegations in the
appeal, this panel of the High Minor Offences Court of the Republic of Croatia, on the basis of section 211(3) of the Minor Offences Act, has found that
the first-instance decision on the accused’s detention was correct and lawful.
This court agrees with the first-instance judge who detained
the accused for the said period because there was a risk that he might repeat
the same minor offence, which arises from the circumstances in which the
offence described in the indictment was committed, and from the medical
documentation in the case file.
Remanding the accused in custody prevents him from repeating
the same minor offence.”
On 17 October 2009, when the eight-day time
period had expired, the applicant was released from custody.
On 20 November 2009 the applicant lodged a
constitutional complaint with the Constitutional Court (Ustavni sud
Republike Hrvatske) arguing that there had been no reason to remand him in
custody, that the lower courts had not put forward any such reasons, and that
the assertion that there was a risk that he might reoffend had not been
substantiated in any way. In particular, he stressed that he had not previously
been convicted of the same or similar offences. He also complained that the
judge had not heard him prior to ordering his detention.
On 25 March 2010 the Constitutional Court
declared the applicant’s constitutional complaint inadmissible on the ground
that the applicant had been released in the meantime. This decision was served
on the applicant on 30 April 2010.
On 20 April 2010 the Pula Minor Offences Court
found the applicant guilty of a breach of the public peace and order and
sentenced him to nine days’ imprisonment. The period of detention already
served was to be included in his sentence.
On 17 May 2010 the applicant lodged an appeal
with the High Minor Offences Court against that judgment of the Pula Minor
Offences Court, but withdrew it on 1 April 2011.
On 21 October 2011 the High Minor Offences Court
declared the applicant’s appeal of 17 May 2010 inadmissible on the ground that
he had lost interest in pursuing his appeal.
II. RELEVANT DOMESTIC LAW
The relevant part of the Minor Offences against
Public Order and Peace Act (Zakon o prekršajima protiv javnog reda i mira,
Official Gazette nos. 5/1990, 47/1990 and 29/1994) reads:
Section 6
“Anyone who behaves in a particularly offensive or rude manner
in a public place by insulting citizens or disturbing the peace shall be liable
to a fine ... or to a term of imprisonment not exceeding sixty days.”
The relevant part of the Minor Offences Act (Prekršajni
zakon, Official Gazette, no. 107/2007) reads:
Detention
Section 135
“1. If a person is indicted for a minor offence which
concerns a breach of public order, or domestic violence, or is punishable by
imprisonment or a fine above 10,000 [Croatian kunas], the court can, of
its own motion or upon a proposal from the prosecutor, and after the defendant
has been heard and it has been determined that there are no reasons to dismiss
the indictment under Section 161 of this Act, remand that person in custody if:
1. there are circumstances which show that there is
a risk hat [the defendant] will abscond (or is in hiding);
2. if there is a risk that he or she might destroy,
hide, alter or forge evidence or traces relevant for the minor offences
proceedings or might suborn witnesses, or where there is a risk of collusion;
3. special circumstances justify the suspicion that
the person concerned might reoffend.
Section 62(1) of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu,
Official Gazette no. 29/2002) reads:
“1. Anyone may lodge a constitutional complaint with the
Constitutional Court if he or she deems that a decision (pojedinačni
akt) of a State body, a body of local and regional self-government, or a
legal person with public authority, concerning his or her rights and
obligations or suspicion or accusation of a criminal act, has violated his or
her human rights or fundamental freedoms, or his or her right to local and
regional self-government guaranteed by the Constitution (hereinafter:
constitutional right) ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 5 §§ 3 AND 4 OF
THE CONVENTION
The applicant complained that there had not been
sufficient reasoning for remanding him in custody, and that the proceedings by
which he sought to challenge his detention had not been in conformity with the guarantees
provided under Article 5 of the Convention. The Court shall examine these
complaints under Article 5 §§ 3 and 4 of the Convention, which, in so far as
relevant, read as follows:
“3. Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be ...
entitled to trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his release ordered if
the detention is not lawful.”
A. Admissibility
1. The parties’ arguments
The Government submitted that by withdrawing his
appeal against the first-instance judgment in the minor offences proceedings
the applicant had acknowledged that he did not consider himself to be a victim
of any violation of the domestic law or the Convention. Had the applicant
pursued his appeal against the first-instance judgment, the applicant would
provide an opportunity to the High Minor Offences Court to asses his detention
which had been deducted from his sentence. They also pointed out that the
applicant had failed to address the issues he had raised before the Court in
his constitutional complaint lodged with the Constitutional Court.
The applicant contested this view, arguing that
the first-instance judgment and the decisions on his detention had concerned two
distinct issues which could not be associated. He also argued that he had
exhausted all available domestic remedies in the proceedings concerning his
detention.
2. The Court’s assessment
The Court reiterates that, in accordance with
Article 35 § 1 of the Convention, it may only deal with an issue after all
domestic remedies have been exhausted. The purpose of Article 35 is to afford
the Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are submitted to the
Court (see, for example, Hentrich v. France,
22 September 1994, § 33, Series A no. 296-A, and Remli v. France, 23 April 1996, §
33, Reports 1996-II). Thus, the complaint
submitted to the Court must first have been made to the appropriate national
courts, at least in substance, in accordance with the formal requirements of
domestic law and within the prescribed time-limits. To hold otherwise would
mean to duplicate the domestic process with proceedings before the Court, which
would hardly be compatible with the subsidiary character of the Convention (see
Gavril Yosifov v. Bulgaria, no. 74012/01, § 42, 6 November 2008). Nevertheless,
the obligation to exhaust domestic remedies requires only that an applicant
make normal use of remedies which are effective, sufficient and accessible in
respect of his Convention grievances (see Balogh
v. Hungary, no. 47940/99, § 30, 20 July 2004, and John Sammut and Visa Investments Limited v. Malta (dec.),
no. 27023/03, 28 June 2005).
The Court notes that the applicant’s complaints
submitted before the Court under Article 5 of the Convention concern the
alleged lack of sufficient grounds and adequate reasoning of the decisions ordering
his detention, as well as alleged flaws in the procedure for challenging his
detention.
The applicant contested the decision to detain
him by lodging an appeal and in a constitutional complaint, which were both
unsuccessful. He has thus exhausted all domestic remedies available against the
decision ordering his detention, the same decision he is now challenging before
the Court.
When a judgment on the merits of the charges
held against the applicant was adopted later, it did not concern the grounds
for his detention in any manner. The fact that in that judgment the applicant’s
detention was deducted from his sentence concerned the domestic rules of
sentencing, and not the ground nor the procedure for ordering his detention.
Therefore, contrary to the Government’s contention, by withdrawing his appeal
against his conviction the applicant did not in any way express that he was not
a victim of the violation claimed.
The Court further notes that in his
constitutional complaint the applicant argued that the Minor Offences Court had
not given sufficient ground for his decision. He further argued that the
assertion that there was a risk that he might reoffend had not been
substantiated in any way. Therefore, the Court considers that the applicant had given the domestic
authorities an adequate opportunity to assess the grounds and reasoning for his
detention.
Against
the above background, the Government’s objection in respect of the
applicant’s victim status and the exhaustion of domestic remedies must be
rejected.
The Court notes that this part of the
application is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. Compliance of the decisions ordering the applicant’s
detention with Article 5 § 3 of the Convention
(a) The parties’ arguments
The applicant submitted that when the Pula Minor
Offences Court had ordered his detention there had been no circumstances that
could justify the fear that he would reoffend. He pointed out that he had not
been previously convicted of or prosecuted for the same or similar offences.
The applicant also argued that the domestic courts had failed to provide
relevant and sufficient reasons when ordering his detention.
The Government argued, reiterating the arguments
adduced by the domestic courts, that there had been relevant and sufficient
reasons justifying the fear that the applicant might reoffend, which had been
based on all relevant circumstances of the case. In the Government’s view the
decisions of the domestic courts had been sufficiently reasoned and based on an
assessment of the relevant reasons for ordering the applicant’s detention.
(b) The Court’s assessment
(i) General principles
The Court reiterates that Article 5 of the
Convention is, together with Articles 2, 3 and 4, in the first rank of the
fundamental rights that protect the physical security of an individual, and as
such its importance is paramount (see Castravet v. Moldova, no. 23393/05, § 29, 13 March 2007). Its key purpose is to prevent arbitrary or
unjustified deprivations of liberty (see Lukanov v. Bulgaria, judgment
of 20 March 1997, Reports 1997-II, § 41; Assanidze v. Georgia [GC],
no. 71503/01, § 171, ECHR 2004-II, § 46; and Ilaşcu and Others
v. Moldova and Russia [GC], no. 48787/99, § 461, ECHR 2004-VII).
A person charged with an offence must always be
released pending trial unless the State can show that there are “relevant and
sufficient” reasons to justify the continued detention (see Yağcı
and Sargın v. Turkey, 8 June 1995, § 52, Series A no. 319-A).
The persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua
non for the lawfulness of the continued detention, but after a
certain lapse of time it no longer suffices. In such cases, the Court must
establish whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty (see Contrada v. Italy, 24 August 1998, § 54, Reports 1998-V;
I.A. v. France, 23 September 1998, § 102, Reports 1998-VII; Toth v. Austria,
12 December 1991, § 67, Series A no. 224; and B. v. Austria,
28 March 1990, § 42, Series A no. 175).
The arguments for and against release must not
be “general and abstract” (see Smirnova
v. Russia, nos. 46133/99
and 48183/99, § 63, ECHR 2003-IX). Where the law provides for a
presumption in respect of factors relevant to the grounds for continued
detention, the existence of specific matters outweighing the rule of respect
for individual liberty must be convincingly demonstrated (see Ilijkov v. Bulgaria,
no. 33977/96, § 84 in fine,
26 July 2001).
(ii) Application of these principles to the present
case
The Court firstly notes that there is no dispute
between the parties that depriving the applicant of liberty in connection with
the proceedings for breach of public peace and order falls within the scope of
Article 5 § 3 of the Convention.
In this respect the Court would also reiterate
that breach of the peace must be regarded as an “offence” within the meaning of
Article 5 § 1 (c) of the Convention (see Steel and Others v. the United
Kingdom, 23 September 1998, § 49, Reports of Judgments and Decisions
1998-VII) and that sub-paragraph (c) of Article 5 § 1 must be read in
conjunction both with sub-paragraph (a) and with paragraph 3, which forms a
whole with it (see Ciulla v. Italy, 22 February 1989, § 38, Series
A no. 148).
The period of the applicant’s detention to be
taken into consideration began on 9 October 2009, the date of the arrest, and
ended on 17 October 2009, when the applicant was released, which in total
amounts to eight days.
In this respect, and having regard to the
importance of the fundamental rights that protect the liberty and physical
security of an individual, the Court considers that justification for any
period of detention, no matter how short, must be convincingly demonstrated by
the authorities (see Belchev v. Bulgaria, no. 39270/98, § 82, 8
April 2004, and Castravet, cited above, § 33).
The Court notes that in the present case, after
the applicant had been arrested on suspicion of causing a breach of public
peace and order by attacking two off-duty police officers and inflicting
serious injuries to one of them, he was immediately brought before a single
judge of the Pula Minor Offences Court who examined the circumstances of the
case and ordered the applicant’s eight-day detention on the ground of the risk that
he would reoffend.
In its reasoning, the Pula Minor Offences Court relied
on the gravity of the breach of public peace and order and particular
circumstances of the case, namely the grave injuries sustained by one of the
attacked police officers. The same approach was taken by the High Minor
Offences Court which, acting as an appellate court upon the applicant’s appeal,
endorsed the Pula Minor Offences Court’s reasoning.
. Against the above background, the
Court considers, in view of the fact that the applicant was charged with breach
of the public peace and order by attacking two off-duty police officers, that the domestic authorities provided relevant
and sufficient reasons in justifying the short eight-day period of the
applicant’s detention.
There has accordingly been no violation of
Article 5 § 3 of the Convention.
2. Failure of the Constitutional Court to decide the
applicant’s complaints on merits
(a) The parties’ arguments
The applicant contended that his right to an
effective judicial supervision under Article 5 § 4 the Convention had been
violated by the Constitutional Court when declaring his constitutional
complaint inadmissible without examination of his complaints on merits.
The Government argued that the applicant had lodged
an appeal against the decision ordering his detention, and that it had been
examined by the High Minor Offences Court on merits. They stressed that the
applicant had lodged his constitutional complaint after he had been released
from detention and that in such circumstances the Constitutional Court could
not have decided his complaints on merits.
(b) The Court’s assessment
(i) General principles
The Court reiterates that the purpose of Article
5 § 4 is to assure to persons who are
arrested and detained the right to judicial supervision of the lawfulness of
the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v.
Belgium, 18 June 1971, § 76, Series A no. 12, and Ismoilov and
Others v. Russia, no. 2947/06, § 145, 24 April 2008). A remedy must be
made available during a person’s detention to allow that person to obtain
speedy judicial review of the lawfulness of the detention, capable of leading,
where appropriate, to his or her release. The existence of the remedy required
by Article 5 § 4 must be sufficiently certain, not only in theory but also in
practice, failing which it will lack the accessibility and effectiveness required
for the purposes of that provision (see, mutatis mutandis, Stoichkov v. Bulgaria,
no. 9808/02, § 66 in fine,
24 March 2005, and Vachev
v. Bulgaria, no. 42987/98, § 71, ECHR 2004-VIII). The
accessibility of a remedy implies, inter
alia, that the circumstances voluntarily created by the authorities
must be such as to afford applicants a realistic possibility of using the
remedy (see, mutatis mutandis,
Čonka v. Belgium, no. 51564/99, §§ 46 and 55, ECHR 2002-I).
(ii) Application of these principles to the present
case
The Court notes that the Constitutional Court
declared the applicant’s constitutional complaint by which he sought to
challenge the lawfulness and grounds for his detention inadmissible solely on the
ground that in the meantime the applicant had been released.
The Court has already found a violation of
Article 5 § 4 of the Convention in several cases against Croatia where the Constitutional
Court declared constitutional complaints inadmissible solely on the ground
that, in the meantime, a fresh decision had been adopted further extending an
applicant’s detention. The Court held that the Constitutional Court’s failure
to decide the merits of constitutional complaints in these circumstances made
it impossible to ensure the proper and meaningful functioning of the system for
the review of detention, as provided for by the national law (see Peša
v. Croatia, no. 40523/08, § 126, 8
April 2010; Hađi v. Croatia, no. 42998/08, § 47, 1 July 2010; Getoš-Magdić
v. Croatia, no. 56305/08,
§ 106, 2 December 2010; Bernobić v. Croatia, no. 57180/09, § 93, 21 June 2011; and Šebalj v. Croatia, no. 4429/09, § 223, 28 June
2011).
The Court notes that the present case differs
from the above-mentioned cases in that the Constitutional Court decided on the
applicant’s constitutional complaint after he had been released.
In this respect the Court has already held that
a former detainee may well have a legal interest in the determination of the
lawfulness of his or her detention, even after release, as an
issue can arise, for example, as regards the “enforceable right to
compensation” guaranteed by Article 5 § 5 of the Convention (see S.T.S. v.
the Netherlands, no. 277/05, § 61, 7 June 2011). Therefore the
guarantee of efficiency of the review should continue to apply even thereafter
(see Kormoš v. Slovakia, no. 46092/06, §
93, 8 November 2011).
50. The Court notes that under
section 62 of the Constitutional Court Act, anyone who deems that an individual
act of a State body determining his or her rights and obligations, or a
suspicion or accusation of a criminal act, has violated his or her human rights
or fundamental freedoms may lodge a constitutional complaint against such act and reasonably expect that his
complaint would be examined and accordingly decided.
Having that in mind, the Court considers that by
declaring the applicant’s constitutional complaint inadmissible simply because he
had no longer been detained, the Constitutional Court deprived it of whatever
further effect it might have had which did not satisfy the requirement of
effectiveness of the review as required under Article 5 § 4 of the Convention.
There has accordingly been a violation of
Article 5 § 4 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Articles 6,
13 and 17 of the Convention, as well as Article 2 of Protocol No. 7 without any
further substantiation of his complaints.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court considers that this part of the application does not
disclose any appearance of a violation of the Convention. It follows that it is
inadmissible under Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
The applicant claimed 20,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered the applicant’s claim
excessive, unfounded and unsubstantiated.
Having regard to all the circumstances of the
present case, the Court accepts that the applicant has suffered non-pecuniary
damage which cannot be compensated for solely by the finding of a violation.
Making its assessment on an equitable basis, the Court awards the applicant 2, 500 euros
(EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable
to him.
B. Costs and expenses
The applicant also claimed EUR 30 for postal and
other expenses for sending his submissions to the Court.
The Government considered that the applicant
failed to substantiate his claim for the costs and expenses in any respect.
61. According to the Court’s case-law, an
applicant is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. Making its assessment on an equitable basis and
in the light of its practice in comparable cases, the Court considers it reasonable
to award the applicant the requested sum of EUR 30 plus any tax that may be
chargeable to the applicant on these amounts.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the
alleged lack of reasoning in ordering the applicant’s detention and the alleged
flaws in the procedure of challenging his detention admissible and the
remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 5 § 3 of the Convention;
3. Holds that there has been a violation of
Article 5 § 4 of the Convention concerning the failure of the Constitutional Court to decide the applicant’s complaints on merits;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into Croatian kunas at the rate applicable at the date
of settlement:
(i) EUR 2,500 (two thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 30 (thirty euros), plus any tax that may
be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 November 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Anatoly
Kovler
Registrar President
