CASE OF MILANKOVIĆ AND BOŠNJAK v. CROATIA

Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicants were born in 1962 and 1958 respectively and live in Sisak.

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.

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.

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.

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.

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.

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 ...”

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.

At a hearing held on 21 May 2012 before the Osijek County Court the applicants pleaded not guilty to the charges.

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.

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.

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.

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.

On 20 June 2011 the applicants were arrested in connection with the criminal complaint lodged against them by the police (see paragraph 6 above).

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.”

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.

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 ...

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.

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.

On 19 September 2011 the investigating judge extended the applicants’ detention for a further three months

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.

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.

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 ...”

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 ...”

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.

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.”

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.

On 2 March 2012 the Constitutional Court dismissed the first applicant’

“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 ...”

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.

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.

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.

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.

On 26 July 2012 the Constitutional Court dismissed the first applicant’s constitutional complaint, endorsing the reasoning of the Supreme Court.

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.

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.

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.

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.

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.

On 14 January 2013 a three-judge panel of the Osijek County Court extended the first applicant’

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.”

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.

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.

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.

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.

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.

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’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.”

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.

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. ...”

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.

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.

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).

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).

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).

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.

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).

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).

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).

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.

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.”

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.”

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].”

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.

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 Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court.

The second applicant challenged the decision of the Supreme Court by lodging a constitutional complaint before the Constitutional Court. On 18 April 2013 the Constitutional Court dismissed his complaint as ill-founded on the grounds that the lower courts, when extending his detention, had provided relevant and sufficient reasons.

On 26 April 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), relying on its previous reasoning.

The second applicant appealed against that decision before the Supreme Court. On 17 May 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court.

The second applicant challenged that decision before the Constitutional Court, arguing that his continued detention had been excessive and disproportionate.

On 11 July 2013 the Constitutional Court, having examined the second applicant’s constitutional complaint, remitted the case to the Osijek County Court on the grounds that the impugned decisions on detention lacked the relevant reasoning. The Constitutional Court reiterated its case-law relevant to the requirements for ordering and extending pre-trial detention on the grounds of gravity of the charges under Article 102 § 1 (4) of the Code of Criminal Procedure (see paragraph 52 above).

On 17 July 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 findings concerning the specific circumstances of the offences with which the second applicant was charged.

The second applicant appealed against that decision to the Supreme Court. On 31 July 2013 the Supreme Court dismissed his appeal as ill-founded, pointing out the following:

“It goes without saying that the release of a person, in respect of whom there is a reasonable suspicion that he has committed the impugned acts, would consequently create a public disturbance, in particular by the national minorities, amongst whom there are also family members of the victims of the conduct at issue, which took place during the war in the Sisak area. This is all the more so since [Sisak] is a small community which has been seriously affected by the war and where the long and difficult process of normalisation of mutual relations and peaceful coexistence is ongoing.”

The second applicant lodged a constitutional complaint before the Constitutional Court against the decision of the Supreme Court, challenging the reasonableness of his continued detention.

On 27 September 2013 the Constitutional Court dismissed the second applicant’s constitutional complaint, finding that his detention so far had been based on relevant and sufficient reasons. However, the Constitutional Court stressed:

“In view of the findings [with regard to the possibility of ordering detention on the grounds of the gravity of the charges] and the length of the appellant’s continued detention, as well as the length of the criminal proceedings and the expected termination of the main hearing, and in view of the fact that the detention was ordered twenty years after the alleged commission of the offences with which the appellant has been charged, the Constitutional Court finds that the validity of the findings of the Supreme Court [with regard to the avoidance of public disturbance] has reached its temporal limits.

In particular, every further reliance on the risk of public disturbance as a ground for extending the appellant’s detention could turn that ground for detention into a strong basis [for detention], which would mean in practice a constitutionally unacceptable and prohibited obligatory deprivation of liberty ...

It therefore follows from the circumstances of the present case that a further extension of detention on the grounds of a risk of public disturbance could lead to a violation of the appellant’s constitutional right to liberty. It is time therefore for the competent court to [re]examine the justification for the appellant’s continued detention in view of this new fact.”

On 30 September 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 that in view of the specific charges held against him, his release from detention could create a public disturbance.

The applicant appealed against that decision to the Supreme Court, arguing that his detention was no longer justified. On 25 October 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court.

On 2 December 2013 a three-judge panel of the Osijek County Court, anticipating the pronouncement of the first-instance judgment acquitting the second applicant (see paragraph 15 above), ordered his immediate release from detention. The second applicant was released on 9 December 2013.

Meanwhile, the second applicant lodged a constitutional complaint before the Constitutional Court challenging the extension of his detention by the Osijek County Court on 30 September 2013, which had been upheld by the decision of the Supreme Court on 25 October 2013 (see paragraphs 81-82 above).

On 13 January 2014 the Constitutional Court found that the extension of the applicant’s detention from 30 September to 9 December 2013 (see paragraphs 81-82 above) had violated his right to liberty under Article 22 of the Constitution. The relevant part of the decision reads:

“... in the impugned decisions [the Osijek County Court and the Supreme Court] failed to cite any new reason satisfying the Constitutional Court that the temporal limits [for detention based on the necessity to prevent public disturbance] had not been attained, but they nevertheless extended the appellants detention.

Moreover, seventy days after the first-instance court had extended the appellant’s detention by means of the impugned decision, and forty-five days following the confirmation of the lawfulness of such decision by the Supreme Court, the competent criminal court terminated the criminal proceedings against the appellant at first instance, acquitting him. Thus in the appellant’s case what the Constitutional Court indicated in its decision ... of 27 September 2013 was confirmed: that ‘every further reliance on the risk of public disturbance as a ground for extending the appellant’s detention could ... turn that ground for detention into a strong basis [for detention], which would mean in practice a constitutionally unacceptable and prohibited obligatory deprivation of liberty’.

The Constitutional Court does not find such conduct by the competent courts acceptable since the liberty of a person is an essential value protected by the Constitution. ...

It follows that for the period of validity of the impugned decisions of the Osijek County Court and the Supreme Court (between 30 September 2013 and 9 December 2013) the appellant’s right to liberty, guaranteed under Article 22 of the Constitution, has been violated.

Lastly, the Constitutional Court should also point out that there has been a flagrant violation of the appellant’s constitutional right to liberty in the period between 2 December 2013 and 9 December 2013.

The Constitutional Court finds that from the perspective of the appellant’s constitutional right to liberty it is irrelevant that the [Osijek County Court] in its decision of 2 December 2013 to terminate the detention referred to the (forthcoming) judgment of 9 December 2013 by which the appellant was acquitted. From the perspective of the appellant’s right to liberty, it is exclusively relevant that in the operative part of the decision of 2 December 2013 [the Osijek County Court] ordered that the appellant should be ‘immediately released’, but that the court order was not executed until seven days later.

In these circumstances the seven days of the appellant’s detention (between 2 and 9 December 2013) should a priori be considered as a flagrant violation of his right to liberty, guaranteed under Article 22 of the Constitution.”

In October 2014, after he had been finally acquitted, the applicant instituted the friendly settlement procedure with the State concerning the compensation for his unjustified detention. Following an unsuccessful arrangement with the Ministry of Justice (Ministarstvo pravosuđa) over the amount of compensation, the applicant lodged a civil action for damages in the Osijek Municipal Court (Općinski sud u Osijeku). On 15 October 2015, on the basis of the State’s partial admission of the claim, the Osijek Municipal Court adopted a partial judgment and awarded him 108,900 Croatian kunas (HRK; approximately 14,300 euros) in non-pecuniary damage plus the applicable statutory interest. This partial judgment became final on 5 November 2015, and the Osijek Municipal Court commissioned an expert report in order to determine the possible extent of the State’s responsibility for the applicant’s suffering in detention. These proceedings are still pending.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Georgieva;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1969 and lives in Osijek. Prior to his arrest and detention, which gave rise to the case at issue, the applicant worked as a police officer in the Osijek-Baranja Police Department (Policijska uprava Osječko-baranjska).

On 23 March 2012 the applicant was arrested on suspicion of conspiracy and abuse of power and authority.

The following day he was brought before an investigating judge (sudac istrage) of the Zagreb County Court (Županijski sud u Zagrebu) who ordered that he be placed in pre-trial detention (istražni zatvor) for a further two months under Article 123 § 1(2) and (3) of the Code of Criminal Procedure (risk of collusion and risk of reoffending) or, alternatively, released on bail, which was set at 700,000 Croatian kunas (HRK). The judge held that the applicant’s detention was necessary because some further physical evidence had to be collected, and in order to prevent him from coordinating his defence with the second suspect, who was still at large. She also considered that there was a risk that the applicant might suborn witnesses and, given and his employment as a police officer, that he might reoffend.

On the same day the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: the “State Attorney’s Office”) opened an investigation against the applicant and six others persons in connection with suspected conspiracy and abuse of power and authority.

The applicant and the State Attorney’s Office also lodged appeals against the investigating judge’s decision on the applicant’s detention. The applicant challenged the reasons for his pre-trial detention while the State Attorney’s Office challenged the part of the investigating judge’s decision allowing for the applicant’s conditional release on bail.

On 4 April 2012 a three-judge panel of the Zagreb County Court allowed the appeal of the State Attorney’s Office and reversed the investigating judge’s decision allowing for the applicant’detaining the applicant was the only way to prevent the risk of collusion and reoffending.

On 6 April 2012 the same three-judge panel of the Zagreb County Court dismissed the applicant’ate his defence with the second suspect, who was still at large, and that he might interfere with the seizure of further physical evidence and suborn nine witnesses (M.I., I.R., T.P., M.H., Z.N., S.K., Z.L., D.J. and S.P.) who worked as police officers in the Osijek-Baranja Police Department. It also endorsed the investigating judge’s finding as to the possibility of the applicant’s reoffending.

On 23 April 2012 the State Attorney’s Office requested the investigating judge to extend the applicant’s pre-trial detention on the grounds of the risk of collusion and risk of reoffending, relying on the same grounds on which the applicant had initially been detained.

The investigating judge extended on the same day the applicant’s pre-trial detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) and dismissed the request to extend his detention under Article 123 § 1(3) of the Code of Criminal Procedure (risk of reoffending). She held that there were sufficient reasons to believe that, if at large, the applicant could suborn witnesses and coordinate his defence with the second suspect, who still had not been apprehended. However, the judge found that in the meantime the applicant had been suspended from service and therefore she considered that there was no longer a risk that he might reoffend.

The decision of the investigating judge was upheld by a three-judge panel of the Zagreb County Court on 11 May 2012.

At a detention hearing on 20 June 2012 the State Attorney’s Office again motioned for the extension of the applicant’s detention. The applicant objected, pointing out that there was sufficient time for the questioning of the witnesses and that it was no longer necessary to keep him in detention.

The investigating judge accepted the request of the State Attorney’s Office and extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) reiterating the arguments that there was a risk that the applicant might suborn witnesses and coordinate his defence with the second suspect.

The applicant appealed against this decision, and on 12 July 2012 a three-judge panel of the Zagreb County Court allowed his appeal and remitted the case to the investigating judge for re-examination but without releasing the applicant from detention. It held that the decision lacked the relevant reasoning as it was not clear whom exactly the applicant might suborn and under what circumstances.

At a detention hearing on 25 July 2012 the applicant pointed out that his detention depended on the questioning of witnesses whom the State Attorney’s Office had had sufficient time to question and that there was no reason to believe that he might suborn the second suspect. He also asked the investigating judge to examine the possibility of his conditional release under preventive measures.

The investigating judge extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion). She pointed out that in fact it had been necessary to question nine witnesses (I.R., D.J., T.P., S.K., M.I., M.H. and Z.N – noted above in paragraph 10; and two others, M.Ke and M.Ko.) who worked as police officers in the Osijek-Baranja Police Department and that there was a risk that the applicant might suborn them. However, the judge dismissed the request to keep the applicant in detention on the grounds that he might coordinate his defence with the second suspect, who was still at large, holding that he had given his defence and therefore there was no risk that he might coordinate it with the second suspect. The judge noted that:

“.. all the suspects have given their defence so there is no risk that, if at large, they could coordinate their defences with the second suspect, and the fact that they might be questioned as suspects again during the proceedings is not a reason to extend their detention now under Article 123 § 1(2) of the Code of Criminal Procedure with regard to the second suspect ...”

The applicant appealed against that decision, arguing that the investigating judge had failed to show that he might suborn the witnesses.

On 23 August 2012 at a detention hearing the State Attorney’s Office asked the investigating judge to extend the applicant’s detention on the grounds that he might suborn the above-mentioned nine witnesses (see paragraph 18 above). It also considered, pointing out that a number of witnesses had to be questioned and that a considerable amount of other evidence had to be taken during the investigation, that the investigation had not lasted an unreasonably long time.

The investigating judge accepted the request and extended the applicant’s detention for one month under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the grounds that there was a danger that he might suborn the witnesses. She also considered that the danger of his suborning the witnesses could not be averted by the application of preventive measures.

The applicant appealed against this decision and on 12 September 2012 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded.

On 20 September 2012 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal against the investigating judge’s decision of 25 July 2012 (see paragraphs 17-19 above) as ill-founded.

On the same day the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) extended the investigation, based on a proposal made by the lower State Attorney’s Office conducting the proceedings, for a further twelve months on the grounds that it was necessary to question a number of witnesses and take other evidence and to request international assistance in obtaining the relevant information.

At a detention hearing on 21 September 2012 the applicant contended that there had been sufficient time for the State Attorney’s Office to question the witnesses against him and asked the investigating judge to order that the witnesses be questioned without any further delay.

The investigating judge extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) reiterating the same reasoning that the applicant might suborn the nine witnesses referred to above and holding that his detention could not be replaced by preventive measures.

On an unspecified date in September 2012 the applicant lodged an appeal against that decision, arguing that there had been more than sufficient time to question the witnesses and that his detention was no longer reasonable and justified.

On 24 September 2012 the applicant submitted a request asking the investigating judge to order the State Attorney’s Office to question the nine witnesses, pointing out that he had already been detained for more than six months and that the witnesses had still not been questioned. He also argued that his detention had been ordered and extended only in relation to the questioning of those witnesses and no action had been taken in that respect.

On 9 October 2012 the investigating judge accepted the applicant’s request and ordered the State Attorney’s Office to question the witnesses within fourteen days. In her order, the judge noted:

“The suspect Bruno Margaretić has been detained since 23 March 2012 and his detention was extended [several times] based on the decisions of this court.

Bearing in mind that the suspect has been detained for more than six months, and that throughout that period the State Attorney’s Office has repeatedly relied on the need to question those very witnesses, it is beyond doubt that in the said period those witnesses could have been questioned.

Since in the period at issue the above-mentioned witnesses have not been questioned and the suspect Bruno Margaretić has been detained [for the entire time] it is necessary to question the witnesses promptly. This is because detention is a measure of last resort and as such it must be reduced to a minimum while all procedural actions must be taken without delay.

This judge considers that a time-limit of fourteen days is sufficient for the questioning of the witnesses since there are only nine of them.”

On 10 October 2012 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal against the decision on his detention of 21 September 2012 (see paragraphs 25-27 above), reiterating the arguments they had used to order the applicant’s detention pending the questioning of the witnesses.

On 15 October 2012 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the decision of the three-judge panel of 20 September 2012 dismissing his appeal against the decision on his detention of 25 July 2012 (see paragraph 23 above) and against the decision of a three-judge panel of 12 September 2012 dismissing his appeal against the decision on his detention of 23 August 2012 (see paragraph 22 above). The applicant argued that his detention was arbitrary, since although the investigating judge had found that the witnesses could be questioned within fourteen days, he had been detained on the ground that they needed questioning for almost seven months.

On an unspecified date in 2012 the applicant lodged a further constitutional complaint against the decision of the three-judge panel of 10 October 2012 dismissing his appeal against the decision on his detention of 21 September 2012 (see paragraph 30 above), reiterating the same reasoning.

On 25 October 2012 the Constitutional Court declared the applicant’s constitutional complaint of 15 October 2012 inadmissible on the grounds that in the meantime, on 21 September 2012 (see paragraphs 25 and 26 above), a new decision on the applicant’s detention had been adopted and that he was no longer detained in connection with the decisions complained of.

On 6 November 2012 the Constitutional Court dismissed the applicant’s constitutional complaint against the decision of the three-judge panel of 10 October 2012 (see paragraphs 30 and 32 above) as ill-founded, endorsing the reasoning of the lower courts.

In the meantime, the State Attorney’s Office complied with the order of the investigating judge of 9 October 2012 (see paragraph 29 above) and questioned eight of the nine witnesses in one day (on 20 October 2012) and the remaining one on 24 October 2012. On the same day it applied for the extension of the applicant’s detention under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the grounds that he could coordinate his defence with the second suspect, who was still at large.

On 6 November 2012 the applicant requested to be released from detention, arguing that no relevant reasons for keeping him in custody existed.

A hearing concerning the applicant’s request was held on 21 November 2012, at which the applicant reiterated his arguments and the Deputy State Attorney pointed out that the second suspect was still at large and that the prosecuting authorities were doing their utmost to apprehend him. She therefore considered that the applicant should be kept in detention in order to prevent him from coordinating his defence with the second suspect.

The investigating judge dismissed the applicant’s request for release on the grounds that the applicant could contact the second suspect and that they could coordinate their defences. The relevant part of the decision reads:

“The second suspect is still at large and he has had contact with the fifth suspect, Bruno Margaretić, which means that the fifth suspect, if released, could get in touch with the second suspect, which would allow them to coordinate their defences and to obstruct the conduct of the proceedings.”

A further detention hearing was held on 23 November 2012, at which the applicant pointed out that he had been detained on the sole ground that he might suborn the witnesses, while no other reason, in particular the possibility of his coordinating his defence with the second suspect, had been adduced, and that it was only now, after the witnesses had been questioned, that an extension of his detention was requested on the ground that he might collude with the second suspect. The applicant considered that that was not possible, because according to the available information the second suspect lived in Serbia and, given the media coverage of the proceedings at issue, it was unlikely that he would come to Croatia. The applicant therefore asked the investigating judge, if she considered that there was a possibility of them contacting each other, to release him on condition that his passport be seized and other preventive measures which would prevent him from contacting the second suspect be applied if necessary.

The investigating judge extended the applicant’s pre-trial detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the grounds that there was a danger that he might contact the second accused. The relevant part of the decision reads:

“As regards the fifth suspect [Bruno Margaretić] and the sixth suspect, the investigating judge finds that a risk of collusion with the second suspect, D.G., who is at large, still exists. The defence arguments that the detention could be replaced by preventive measures and that D.G. is a citizen of Serbia and has not come to Croatia since 11 January 2012 are of no relevance at this stage of the proceedings. It should be noted that that the suspects at issue were police officers who most certainly knew a lot of people and could therefore easily get in touch with the second suspect, D.G. This risk could not be averted by the seizure of their passports, because they could travel to certain countries with their identity cards alone and could easily meet the second suspect somewhere else. The analysis of the telephone conversations shows that the fifth suspect [Bruno Margaretić] previously contacted the second suspect and that therefore he more or less knows where to find him and how to reach him, while the sixth suspect is his colleague and friend, and [therefore] they could both get in touch with the second suspect without difficulty. That risk can be averted only by their detention and therefore the conditions under Article 123 § 1(2) of the Code of Criminal Procedure have been met.”

The applicant appealed against that decision and on 12 December 2012 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, endorsing the reasoning of the investigating judge.

On 8 January 2013 the applicant lodged a constitutional complaint against that decision and on 15 January 2013 the Constitutional Court dismissed it as ill-founded, endorsing the arguments of the lower courts.

On 22 January 2013 a detention hearing was held at which the parties reiterated their previous arguments. The investigating judge extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion), or alternatively, set bail for his release at HRK 1,500,000. The judge held that there was a risk that the applicant would contact the second suspect, which warranted his detention. He could, however, be released on bail, the amount of’s personal situation, namely, the fact that he was in employment, owned property and had a family who could support him financially.

The applicant appealed against that decision, arguing that there were no relevant reasons to keep him in detention and that the amount set for bail was excessive.

On 7 February 2013 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, endorsing the reasoning of the investigating judge.

On 26 February 2013 the applicant lodged a constitutional complaint against that decision with the Constitutional Court, arguing that the lower courts had failed to provide relevant and sufficient reasons for his detention.

On 28 February 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts.

On 22 March 2013 a three-judge panel of the Zagreb County Court extended the applicant’s detention for a further two months under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) and set bail for his release at HRK 1,500,000. It held that there was a risk that the applicant might contact the second suspect and that they could coordinate their defences. It also considered that the risk could be averted by the deposit of bail in an amount which corresponded to the circumstances of the offence and the fact that the applicant was employed and had a regular income.

The applicant appealed against that decision to the Supreme Court (Vrhovni sud Republike Hrvatske), reiterating his previous arguments and asking that his detention be replaced with preventive measures.

On 12 April 2013 the Supreme Court quashed the decision of the three-judge panel of the Zagreb County Court extending the applicant’s detention and remitted the case for re-examination but without releasing the applicant from detention. The Supreme Court held that the Zagreb County Court had not given consideration to the possibility of imposing less severe preventive measures on the applicant and that the amount of bail requested for his release had been excessive.

On 22 April 2013 a three-judge panel of the Zagreb County Court again extended the applicant’s detention under Article 123 § 1(2) of the Code of Criminal Procedure (risk of collusion) on the grounds that the applicant could contact the second applicable preventive measures.

On 23 April 2013 the State Attorney’s Office indicted the applicant and six other persons in the Zagreb County Court on the charges of conspiracy and abuse of power and authority. The State Attorney’s Office also requested that the applicant be kept in detention pending trial.

On 2 May 2013 the applicant lodged an appeal with the Supreme Court challenging the decision of the Zagreb County Court of 22 April 2013 extending his detention, arguing that the Zagreb County Court had failed to comply with the instructions provided in the Supreme Court’s decision of 12 April 2013 (see paragraph 50 above).

On 10 May 2013 the Supreme Court accepted the applicant’s appeal and, without releasing the applicant from detention, remitted the case to the Zagreb County Court for re-examination on the grounds that the decision of the Zagreb County Court lacked the relevant reasoning.

On 21 May 2013 a three-judge panel of the Zagreb County Court released the applicant from detention on condition that he refrain from contacting the second accused and ordered the seizure of his travel documents. It held that the applicant had been detained for almost fifteen months whereas it was uncertain when, and indeed if, the second accused would be arrested. It also found that the applicant’s financial situation was not secure, as he was a divorced father of two and was without employment or income. Therefore, there were no grounds to request that bail be posted for his release.

The State Attorney’s Office lodged an appeal against that decision, arguing that the applicant should be kept in detention and on 12 June 2013 the Supreme Court dismissed the appeal as ill-founded, endorsing the reasoning of the Zagreb County Court.

The criminal proceedings against the applicant are still pending.

Parallel to the criminal proceedings, on 24 March 2012 the Chief of the Osijek-baranja Police Department ordered the applicant’s suspension from duty pending the outcome of the criminal proceedings.

On an unspecified date in 2012 the applicant, represented by a lawyer, challenged that decision before an appeal panel of the Ministry of the Interior (Ministartsvo unutarnjih poslova Republike Hrvatske), arguing that there had been no reason for his suspension.

On 17 April 2012 the appeal panel of the Ministry of the Interior dismissed the applicant’s appeal as ill-founded. The relevant part of the decision reads:

“The suspension was ordered under section 112(3) of the Police Act, which provides that the minister or a commanding officer, which is in the case at issue the Chief of the Police Department, can order the suspension of a police officer even before disciplinary proceedings have been opened ... when he or she considers that the breach of duty at issue is of such a nature that keeping the police officer on duty could harm the interests of the service.

Taking into account the circumstances of the present case, namely, the reasonable suspicion that the appellant had abused [his] power and authority, for which reason he was arrested, this panel considers that the first-instance body correctly and lawfully suspended him from service under section 112 of the Police Act ...”

Through his lawyer the applicant lodged an administrative action against that decision with the Osijek Administrative Court (Upravni sud u Osijeku) challenging the reasons for his suspension and arguing that the decisions of the lower bodies had not been sufficiently reasoned.

On 17 September 2012 the applicant’s lawyer submitted further written observations on the merits of the case and requested that a hearing scheduled for 18 September 2012 be adjourned until the applicant’s release from detention.

On 18 September 2012 the Osijek Administrative Court held a hearing in the absence of the applicant and his representative and dismissed the applicant’s administrative action as ill-founded. It found that the request for the adjournment of the hearing had been no more than an attempt to delay the proceedings and that the applicant’s representative, although duly informed, had failed to appear at the hearing without providing any relevant reasons. As to the merits of the case, the Osijek Administrative Court noted:

“There is no dispute between the parties that the plaintiff was suspended due to a reasonable suspicion that he had committed a grave breach of his official duty.

The dispute between the parties relates to the question of whether the defendant [had the right to] suspend the plaintiff from duty on the basis of the reasonable suspicion alone.

... [T]he fact that the plaintiff has been remanded in custody on a reasonable suspicion that he has committed an offence under Article 337 of the Criminal Code (abuse of power and authority) justifies the decision of the defendant, because the placing of a police officer in detention for the offence at issue could be damaging for the interests of the service and therefore his suspension is justified.”

Through his lawyer the applicant lodged an appeal with the High Administrative Court (Visoki upravni sud Republike Hrvatske) and on 11 October 2012 that court declared his appeal inadmissible on the grounds that the Osijek Administrative Court had not itself decided on the merits of the applicant’s rights and obligations but only dismissed his administrative action.

On 14 December 2012 the applicant’s lawyer lodged a constitutional complaint on behalf of the applicant with the Constitutional Court, challenging the lower courts’ decisions.

On 31 January 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.