Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant, Ms Rabiya Akdağ, is a dual Dutch and Turkish national who was born in 1990 and lives in Vlaardingen. She was represented before the Court by Ms Y.M. Schrevelius, a lawyer practising in Rotterdam.

The applicant, who was born and grew up in the Netherlands, had a relationship in that country with Mr S., who is a Dutch national and who was born in Suriname. A son was born to them on 10 January 2012. Initially the child was given up for adoption. However, after three months the son was placed back with the applicant as the latter no longer wished to continue the adoption process. Mr S. then also got involved in the upbringing of the son. Mr S. acknowledged paternity on 16 April 2012. He obtained joint parental authority on 11 June 2012.

On 26 June 2012 the applicant and her son, who, like the applicant, has both Dutch and Turkish nationality, emigrated to Suriname to settle there with Mr S. The applicant, Mr S., and their son lived there with the parents of Mr S.

On 6 July 2013 the applicant returned to the Netherlands with her son. She initially stayed with Mr S.’s grandmother. Two weeks later, Mr S. followed the applicant back to the Netherlands. Their relationship ended soon after.

On 26 September 2013 the applicant lodged a criminal complaint against Mr S., as he was planning to take their son back to Suriname, allegedly without her permission. Mr S. was arrested at the airport on the same day and the son was returned to the applicant.

On 31 October 2013 Mr S. applied to the Regional Court (rechtbank) of The Hague for an order requiring the applicant, pursuant to Article 12 of the Hague Convention (see paragraph 22 below), to either return the son to Suriname or to hand in the son’s valid travel documents so that he could take the child back to Suriname.

On 1 November 2013 the Regional Court ruled that the Rotterdam Youth Care Office (Stichting Bureau Jeugdzorg) should have temporary guardianship over the applicant’s son until 22 November 2013. At the same time, the assessment of the application made by Mr S. was adjourned.

A preparatory hearing (regiezitting) was held on 14 November 2013. At this meeting, in the presence of the guardian (voogd) of the Rotterdam Youth Care Office, who submitted that it would be better if the parents mutually reached a solution and that the son was seemingly developing well, the applicant and Mr S. agreed to start a mediation process. However, on 18 November 2013 the Regional Court was informed that mediation had failed.

The Regional Court decided on 22 November 2013 to extend the temporary guardianship of the Rotterdam Youth Care Office until a decision was put into effect on the return of the son.

Another hearing was held on 5 December 2013 to obtain further statements from the applicant and Mr S. The applicant stated that she and Mr S. had intended to return to the Netherlands to resettle there, that she was the primary carer of her son, and that it was impossible for her to return to Suriname. Mr S. stated that he had not agreed to return to the Netherlands to settle there permanently, and added that the applicant had a residence permit in Suriname which allowed her to live and work there and, should she choose not to return to Suriname, he could take care of their son.

On 19 December 2013 the Regional Court refused Mr S.’s application for an order for the son to be returned to Suriname. At the outset the Regional Court noted that by virtue of section 11(1) of the International Child Abduction Implementation Act (Uitvoeringswet internationale kinderontvoering; hereafter “the Implementation Act”) it had jurisdiction to deal with all cases concerning the forced return of an abducted child to the person who had parental authority over said child and the repatriation of that child from the Netherlands. It further noted that Mr S. had based his request for the son’s return on the Hague Convention, and although Suriname was not a Contracting State, it observed that the Implementation Act also applied to situations of international abduction of children that were not covered by a convention. It also noted that section 13(3) of the Implementation Act provided that in situations which were not covered by a convention the judge could refuse the return request on the grounds set out in Article 12 paragraph 2, Article 13 and Article 20 of the Hague Convention. Therefore the Regional Court found that the Implementation Act allowed it to apply the Hague Convention by analogy in the case before it.

As regards the assessment of Mr S.’s application, the Regional Court held that it was undisputed that the son had been habitually resident in Suriname before his retention in the Netherlands and that joint parental authority was, or would have been, exercised during that period had this not been the case. The Regional Court noted that, contrary to her submissions in the proceedings at issue, the applicant had not said, in the statements given by her to the police on 26 September 2013 in relation to the criminal complaint she had made against Mr S., that the latter had consented to the child moving to, and living permanently in, the Netherlands. Having failed to explain her contradictory statements regarding any permission given by Mr S. for their son’s resettlement in the Netherlands, the Regional Court found that documentary evidence introduced by the applicant, including an email reply from a company in the Netherlands to a job application made by Mr S. and a letter from a social housing cooperation, also in the Netherlands, about an outstanding payment, were insufficient to conclude that Mr S. had indeed given his prior permission to the applicant to take their son to the Netherlands. The Regional Court concluded that the son’s retention by the applicant violated the parental authority of Mr S. and was wrongful within the meaning of Article 3 of the Hague Convention (see paragraph 22 below).

With reference to Article 12 of the Hague Convention, the Regional Court noted that this provision required the immediate return of the child when a period of less than a year had lapsed between the child’s retention and the submission of the return application, and that even in cases where more than a year had lapsed an immediate return may be ordered unless it was demonstrated that the child was rooted in its new environment. The Regional Court held that in the present case, where the period between the retention and the return application was less than a year, it did not have to assess whether the son was rooted in the Netherlands, and that his immediate return should be ordered, unless an exception as provided in Article 13 of the Hague Convention (see paragraph 22 below) applied.

Accordingly, the Regional Court next examined whether Article 13 of the Hague Convention stood in the way of an order being issued for the son’s immediate return. It held, firstly, that it had not been established that Mr S. had subsequently acquiesced in the retention of his son (Article 13 (a) of the Hague Convention). Secondly, as to the question whether the return of the son would expose him to physical or psychological harm or otherwise place him in an intolerable situation (Article 13 (b) of the Hague Convention), the Regional Court observed that the applicant and Mr S. were young adults and that the pregnancy had not been planned, but that after the first three months of their son’s life they had both assumed their parental roles. As the birth of their son had changed their study and work plans and there had been problems between, on the one hand, the applicant and Mr S. and, on the other, the couple and the applicant’s family, they had decided to start a new life in Suriname, where the family of Mr S. were residing. The Regional Court noted that the applicant and Mr S. had not been able to build up an independent life in Suriname, where they depended on Mr S.’s family for both their income and housing. The applicant’s return to Suriname would entail a return to the same situation of dependency. The Regional Court also noted that Mr S. had acknowledged that the applicant did not have independent accommodation and for the time being also no means of subsistence in Suriname. While the applicant would be able to obtain work in Suriname, it remained unclear if and when she would succeed in doing so and how she would be able to fend for herself in the meantime. The Regional Court further noted that Mr S. had not offered to contribute to the applicant’s residence in Suriname, other than to propose that she return to live in his parents’ house, which could not be expected of her as her relationship with Mr S. had ended. The Regional Court therefore concluded that it was impossible for the applicant to return with her son to Suriname. Accordingly, were the return of the son to be ordered, the son would be separated from his mother. The Regional Court held that it was generally known that children of the son’s age, who was at that time two years old, were going through a crucial phase of the process of forming an attachment bond. The son had primarily formed such a bond with his mother, given that she had been his main carer in Suriname as Mr S. was employed full-time in his family’s company. Also, it took into account that the son was even more vulnerable given his early history. The Regional Court concluded that the son would be placed in an intolerable situation by separation from the applicant.

On 2 January 2014 Mr S. lodged an appeal with the Court of Appeal (gerechtshof) of The Hague disputing the conclusion of the Regional Court that the son would be put in an intolerable situation in the event of a return to Suriname. He argued that the applicant had not provided any evidence to that end, that the exceptions provided in Article 13 of the Hague Convention should be interpreted restrictively, and that he was also able to take care of his son, with the support of his family when necessary. Mr S. further submitted a statement from his father in which the latter pledged to provide the applicant with housing in Suriname, within a maximum distance of 15 km of her son’s place of residence and for a period of six months and with a financial allowance for the same period of time, as well as to make the necessary effort to help find a job for the applicant.

The applicant argued that it could not be expected of her to return to Suriname, where she lacked social and family ties. She added that she could not rely on the guarantees provided by the family of Mr S. and that in any event these were insufficient and only valid for a period of six months, after which she would most likely either have to live below the poverty line or be separated from her son because she would need to work many hours per week in order to make a living. The applicant further added that a child of her son’s age forms an attachment bond with one person only and, with reference to a scientific publication and the website of the Netherlands Youth Institute (Nederlands Jeugdinstituut), that a disruption of a secure attachment bond could have serious repercussions and lead to behavioural problems at a later stage in a child’s life. Given that her son had formed such an attachment bond primarily with her, as his main carer, she submitted that a separation from his mother would place her son in an intolerable situation.

A hearing was held before the Court of Appeal on 13 January 2014. Mr S. submitted that he would pay for the applicant’s ticket, and that his father’s offer to provide housing for the applicant for the first six months after her return to Suriname also applied regardless of whether the son lived with the applicant or with him (Mr S.); it would be for a Surinamese court to decide with which of his parents the son would live. The applicant stated that she could not rely on the statements made by Mr S. or his father. The son’s guardian had been unable to attend the hearing. At the end of the hearing, the presiding judge informed the parties that the guardian would be contacted by telephone prior to the Court of Appeal issuing its decision, and that the parties would be given an opportunity to respond to the contents of that telephone conversation.

On 15 January 2014 the presiding judge telephoned the guardian, who stated, inter alia, that the son would be in good hands with either the father or the mother, that there was no risk of abuse (mishandeling), that the son was developing age-appropriately, that he recognised the family in Suriname from photographs, and that he had in the meantime also become acquainted with his mother’s family. However, he did not understand the situation very well and clarity was needed. The following day the presiding judge contacted the representatives of the applicant and Mr S. to allow them to respond to the findings of the guardian. Mr S. submitted that if the son were to remain in the Netherlands he foresaw problems in connection with the fact that the applicant’s family did not accept him (Mr S.). The applicant stated that nothing had been said about the bonding of the son or about how he might react to being separated from one of his parents.

In its decision of 27 January 2014, the Court of Appeal upheld Mr S.’s appeal, quashed the Regional Court’s decision in so far as it concerned its rejection of the request submitted by Mr S., and ordered that the son be returned to Suriname. While the Court of Appeal agreed with the Regional Court that the son’s retention was wrongful within the meaning of Article 3 of the Hague Convention, it found in contrast to the lower court that the applicant had made an insufficiently plausible case for believing that the son would be exposed to physical or mental harm or put in an intolerable situation upon his return to Suriname. Although the child was only two years old, had changed his place of residence multiple times and had been separated from his parents for the first three months of his life, it was undisputed that he was doing well, that he was developing age-appropriately, and that he was attached to both parents. It considered that both parents were involved in their son’s life and were able to take good care of him. The appellate court found that the applicant had insufficiently substantiated her argument that she would be unable to fend for herself in Suriname and take care of her son due to a lack of financial means, as a result of which her son would be put in an intolerable situation. The Court of Appeal referred in this regard to the undertaking given by Mr S.’s father to the effect that he would provide the applicant with accommodation and an income for the first six months of her stay in Suriname, and the further explanation of that undertaking provided by Mr S. at the hearing, including the additional undertaking that Mr S. would cover the cost of a flight ticket for the applicant.

Provisions of the Implementation Act relevant to the case are the following:

“1. Without prejudice to the competence of the provisional measures judge of the Regional Court of The Hague in interim injunction proceedings, the juvenile judge of the Regional Court of The Hague has exclusive first-instance jurisdiction to hear all cases relating to the forced return of an internationally abducted child to the person who holds parental authority [over that child] and the repatriation of such a child across the Netherlands border ...”

“The cases referred to in section 11 are introduced by an application.”

“... 3. In cases where no convention applies the judge may refuse the application on the grounds set out in Articles 12, paragraph 2, 13 and 20 of the Hague Convention ...”

The Hague Convention, ratified by the Netherlands, in its relevant parts reads as follows:

“The removal or the retention of a child is to be considered wrongful where –

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

The Explanatory Report on the Hague Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982 (“the Pérez-Vera Report”), provides the following comments on the notion of “the best interest of the child”:

“... one fact has rightly been highlighted, viz. that ‘the legal standard “the best interest of the child” is at first view of such vagueness that it seems to resemble more closely a sociological paradigm than a concrete juridical standard ... the general statement of the standard does not make it clear whether “the interests” of the child to be served are those of the immediate aftermath of the decision, of the adolescence of the child, of young adulthood, maturity, senescence or old age’ ...” (§ 21, p. 431)

and

“... [the philosophy of the Convention] can be defined as follows: the struggle against the great increase in international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests. Now, the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child. ... In fact, ... in the literature devoted to a study of this problem, ‘the presumption generally stated is that the true victim of the “childnapping” is the child himself, who suffers from the sudden upsetting of his stability, the traumatic loss of contact with the parent who has been in charge of his upbringing, the uncertainty and frustration which come with the necessity to adapt to a strange language, unfamiliar cultural conditions and unknown teachers and relatives’.” (§ 24, pp. 431 and 432)

and

“It is thus legitimate to assert that the two objects of the Convention – one preventive, the other designed to secure the immediate reintegration of the child into his habitual environment – both correspond to a specific idea of what constitutes the ‘best interests of the child’ ... However ... it has to be admitted that the removal of the child can sometimes be justified by objective reasons which have to do either with its person, or with the environment with which it is most closely connected. ...” (§ 25, p. 432)”

The Pérez-Vera Report contains the following general comments about the exceptions to the principle of the child’s prompt return:

“... [the exceptions] to the rule concerning the return of the child must be applied only as far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child’s habitual residence – are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child’s residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration.” (§ 34, pp. 434 and 435)

and

“... the exceptions [in Articles 13 and 20] do not apply automatically, in that they do not invariably result in the child’s retention; nevertheless, the very nature of these exceptions gives judges a discretion – and does not impose upon them a duty – to refuse to return a child in certain circumstances.” (§ 113 p. 460)

and

“With regard to article 13, the introductory part of the first paragraph highlights the fact that the burden of proving the facts stated in sub-paragraphs a and b is imposed on the person who opposes the return of the child, ...” (§ 114, p. 460; [italics in original])

and

“The exceptions contained in [Article 13] b deal with situations ... where the return of the child would be contrary to its interests, ... Each of the terms used in this provision is the result of a fragile compromise reached during the deliberations of the Special Commission [of the Hague Conference on Private International Law] and has been kept unaltered. Thus it cannot be inferred, a contrario, from the rejection during the Fourteenth Session of proposals favouring the inclusion of an express provision stating that this exception could not be invoked if the return of the child might harm its economic or educational prospects, that the exceptions are to receive a wide interpretation.” (§ 116, p. 461)


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Mr Haroon Aswat, is a British national who was born in 1974 and is detained pending trial in the United States of America. He was represented before the Court by Ms Gareth Peirce, of Birnberg Peirce & Partners, a lawyer practising in London.

The United Kingdom Government (“the Government”) are represented by their Agent, Mr Paul McKell, of the Foreign and Commonwealth Office.

The applicant was indicted in the United States of America as a co-conspirator in respect of a conspiracy to establish a jihad training camp in Bly, Oregon. The United States’ Government consequently requested his extradition under the Extradition Act 2003.

The applicant, along with Mr Babar Ahmed, lodged a first application against the United Kingdom of Great Britain and Northern Ireland with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 June 2007 (see application no. 17299/12). He alleged that if extradited and convicted he would be at real risk of ill-treatment either as a result of conditions at ADX Florence (a “supermax” prison) or by the length of his possible sentence. The proceedings in the case of the applicant and Mr Babar Ahmad were originally conducted simultaneously with the cases of Mr Syed Tahla Ahsan (application no. 11949/08) and Mr Mustafa Kamal Mustafa (application no. 36742/08). Interim measures under Rule 39 of the Rules of Court were granted on 12 June 2007 and on 26 June 2007 the applications were granted priority status under Rule 41 of the Rules of Court. On 3 September 2010 the President of the Chamber decided under Rule 54 § 2 (b) of the Rules of Court to give notice of the applications lodged by Mr Adel Abdul Bary (application no. 66911/09) and Mr Khaled Al-Fawwaz (application no. 67354/09) to the Government of the United Kingdom. Both of these applications raised the same issues regarding extradition to the United States of America, namely conditions of detention at ADX Florence and the length of possible sentences. The Court therefore decided to deal with the six applications together.

On 10 April 2012 the Court delivered its judgment in the case of Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09. However, as the applicant suffered from mental health problems of sufficient severity to require his transfer from HMP Long Lartin to Broadmoor Hospital, the Court considered that it was not in a position to rule on the merits of his complaints without further submissions from the parties. It therefore decided to disjoin and adjourn the examination of the applicant’s complaints.

The Court delivered its judgment in Aswat v. the United Kingdom, no. 17299/12 on 16 April 2013 wherein it held, unanimously, that there would be a violation of Article 3 of the Convention in the event of the applicant’s extradition on account of the current severity of his mental condition (see in particular §§ 51-57). In particular the Court noted that there was a lack of certainty as to the where the applicant would be detained, either before or after trial; it was unclear how long the applicant might expect to remain on remand pending trial; it was unclear whether the applicant’s legal representatives would be entitled to challenge his competency to stand trial in the United States on account of his mental disorder; there was no information before the Court concerning the potential length of a competency assessment or any subsequent appeals procedure; there was a complete absence of any information about the consequences for the applicant if the District Judge were to find that he was not fit to stand trial; and there was no guarantee that if tried and convicted the applicant would not be detained in ADX Florence, where he would be exposed to a “highly restrictive” regime with long periods of social isolation.

A request for a referral to the Grand Chamber made by the United Kingdom Government was refused on 11 September 2013. The Court’s decision therefore became final and the Rule 39 measure previously in place lapsed.

Meanwhile, on 11 July 2013 the Secretary of State received a letter from the United States’ Government, a copy of which has not been provided to this Court. It would appear that this letter stated that on the basis of the trial of other individuals in situations similar to that of the applicant, he would be held in pre-trial detention for no more than eighteen months; that if his competency was at issue, he would be hospitalised for treatment for a maximum period of four months for assessment; that if deemed unfit, he would be committed to the custody of the Attorney General and thereafter referred to a psychiatric referral centre; that the exact timing of the process was difficult to estimate in advance owing to the fact-specific nature of any assessment; that it was not suggested that the applicant, in his current state, was unfit to plead; and that it was highly likely that he would only become incompetent if, as a result of the conditions in which he was detained, he relapsed into an acute psychotic state. In terms of his likely treatment postconviction, the July letter also stated that if “it is determined that he is unable to manage his activities or daily living by himself (including his taking of prescribed medication) it is highly unlikely that he would be placed at the ADX, but rather, at a medical centre.”

On 12 September 2013 the Secretary of State advised the applicant of her decision to proceed with his extradition to the United States of America as the information obtained from the United States’ Government on 11 July 2013 had led her to be entirely satisfied that extradition could take place without infringing Article 3 of the Convention. The Secretary of State did not invite the applicant or his legal representatives to make submissions before she made her decision.

On 23 September 2013 the applicant sought permission to apply for judicial review of the Secretary of State’s decision. He relied on two principal grounds, namely: (i) that the Secretary of State had been obliged, but had failed, to afford him the opportunity to make representations before making her decision on extradition; and (ii) that the further information provided by the United States Department of Justice was not materially different from that previously placed before the European Court of Human Rights. Therefore it would be impermissible to depart from its conclusion that there would be an Article 3 violation in the event of his extradition. A Psychiatric Court report, dated 26 March 2014, by Dr Dillon, a Consultant Forensic Psychiatrist and the applicant’s responsible clinician at Broadmoor, was prepared and placed before the domestic court.

The High Court heard oral arguments on 1 and 2 April 2014 and promulgated its judgment on 16 April 2014. The court stated that:

“26. The contentious and determinative issue is: what will happen to the claimant if he is extradited.

Approaching that issue in the same manner as did the Strasbourg Court, as it is common ground we should the starting point must be its clearly stated reason for holding that there would be a violation of Article 3:

‘There would be a violation of Article 3 ... in the event of the applicant’s extradition solely on account of the current severity of his mental condition.’

It is the likely impact of extradition and all that it entails on that condition which was central to the Strasbourg Court’s decision and must be to ours.”

The court found, on the basis of the evidence before it, that the information provided on 11 July 2013 by the United States Department of Justice (the content of which has been outlined above) had addressed the uncertainties referred to by this Court in paragraph 52 of its April 2013 judgment both in terms of pre-trial and post-conviction detention. In particular, the court noted that the applicant would be admitted to the Metropolitan Correction Centre (“MCC”), a remand prison in New York, upon arrival and his mental health condition would be assessed immediately; that if his condition could be met within the MCC, his detention would continue in that facility; that in the MCC, he would have access to mental health services and would be provided with appropriate, but different, medication from that prescribed at Broadmoor; that if assessed as being “acutely mentally ill”, he would likely be housed in a psychiatric referral centre managed by the Bureau of Prisons (“BOP”); and that if “it is determined that he is unable to manage his activities or daily living by himself (including his taking of prescribed medication) it is highly unlikely that he would be placed at the ADX, but rather, at a medical centre.”

Both the applicant’s legal representative and Mr Joel Sickler, a criminologist who had visited and reported upon numerous federal prisons over thirty years, provided a bleak picture of the conditions at the MCC. The court found that their reporting of conditions was controversial and that in any event, it was not necessary to reach a final decision in that regard. The MCC was a prison, the primary purpose of which was to detain those awaiting trial on serious charges. It was not an institution whose primary function was to treat and care for those with serious mental health problems. However the court also observed that there remained some detailed gaps as to the precise circumstances in which the applicant would be detained in the MCC. Particular reference was made to whether the applicant would be housed in a single cell; and what opportunities he would have for contact with others and for undertaking the types of educational and recreational facilities such as those available to him at Broadmoor.

Assessing the medical evidence and referring to the previous approach by this Court, the court held that the applicant’s mental health problems were well controlled by the regime as applied at Broadmoor; and that it was established, at a minimum, that removal from Broadmoor (or an equivalent hospital with a similar regime) to a prison, even one with significant mental health provision, would put the applicant at risk of relapse into an acute psychotic state.

In light of its findings, the High Court set out what it considered necessary to ensure that the applicant’s extradition would not be in breach of the United Kingdom’s obligations under Article 3. It noted:

“38 The only means which I can see by which the basic concerns of the Strasbourg Court can be answered are that the United States offers an assurance to the Secretary of State that, upon arrival in the United States, the claimant will immediately be transferred to a Psychiatric Referral Centre and kept there unless and until the equivalent of his treating clinician, Dr. Dillon, determines that he could be transferred to another institution without compromising his health and safety; and if not, that he will be kept at a Psychiatric Referral Centre until trial. His extradition would have to be preceded by detailed discussions and the exchange of information between Dr. Dillon and the receiving psychiatrist. By those means, the real risk of relapse into an acute psychotic state which formed the basis of the Strasbourg Court’s decision would be removed.”

In conclusion, the court found that the Secretary of State was not duty-bound to have given the applicant the opportunity to make submissions before she made her decision to proceed with his extradition. The applicant had, in any event, been afforded full opportunity to present his case on that issue in the current proceedings and the court had to consider for itself whether or not his extradition would infringe Article 3. Moreover, the court adjourned the final decision in the matter for sixty days for the Government of the United States to consider whether or not it wished to give the assurances outlined above.

On 12 June 2014 the United States’ Government, by way of Diplomatic Note, submitted a number of assurances in which it undertook as follows: that the applicant would be transported to the United States of America on a flight that would enable him to be processed by the US Marshals Service (USMS) and promptly produced before a judge for purposes of his initial appearance and a detention determination (on the day of arrival if possible); that while awaiting court during business hours, the applicant would be kept in a USMS cellblock and that he would be transported to the hospital for emergency care should such a need arise; that should overnight detention be required, the applicant would be held either at a contract jail facility or at the local Bureau of Prisons (BOP) facility and that he would have access to emergency medical care if required; that the applicant would be advised of the charges against him and represented by counsel at his initial appearance (either self-funded or court- appointed); that the applicant could, without objection, immediately request an assessment as to his competency; that if the evaluation was granted, the applicant would be transported to a BOP psychiatric referral centre for assessment; that should the applicant not make an application for a competency assessment, he would in any event, with the approval of the District Judge, be detained at an undisclosed private detention healthcare facility for a determination of his health needs; that the District Judge’s consent was required to house the applicant outside of New York state (where any trial would take place); that assuming the defense consented, the prosecution believed that judicial consent would be forthcoming on the basis of the current undertakings; that prior to extradition, a psychiatrist would undertake to receive from Dr Dillon, the applicant’s treating clinician in the United Kingdom, all relevant medical information; and that whether the applicant was housed at a psychiatric referral centre or in the unspecified private facility, he would be kept in such a facility unless and until his treating clinician determined that he could be transferred to another institution without compromising his health and safety.

Additional information was provided by the United States’ Government on 28 August 2014. This included details of the treating clinician who would take responsibility for the applicant’s case postextradition. Furthermore, it was noted that one of the medications used to treat the applicant was not available in the United States; that other medications were available to treat the same symptoms; and that discussions between physicians in the respective jurisdictions could take place. In addition, the United States’ Government advised that federal law made provision for an individual to participate in pre-trial proceedings via videolink; that any trial would take place in New York city; and that during trial, the applicant would be housed in a local jail facility close to the court house, where he would have access to any necessary medical treatment, including at hospitals within New York city. Finally an estimate of approximately three weeks was given with respect to the applicant’s trial.

On 4 September 2014 the High Court, satisfied with the assurances given by the United States’ Government, held that there was no risk of an Article 3 violation in the event of the applicant’s extradition. That judgment was made final on 8 September 2014. Although an official transcript has not yet been made available, Counsel for both the applicant and the Government took notes during oral delivery of the judgment. Counsel for the Government’s note indicated that it had been accepted on the part of the applicant that there was no live issue as to his being unfit to plead and therefore he would be detained pre-trial in a specified private medical facility. Otherwise, it is recorded that the court accepted that the assurances given were sufficient and that the process would not imperil the applicant’s mental health condition; that in considering the placement of the applicant outside of New York state, the District Judge would not deliberately put at risk the applicant’s mental health; that arrangements were in place for discussions to take place between treating clinicians; that during the applicant’s trial in New York, there were facilities available which provided for mental health care and treatment; that the concerns raised by this Court and the domestic court in April 2014 had been eliminated; and that there was no risk of an Article 3 breach. Nothing in the Counsel for the applicant’s note of the hearing contradicted those comments.

On 15 September 2014 the applicant made a request for an interim measure under Rule 39 of the Rules of Court to prevent his extradition to the United States of America. On 16 September 2014 the President of the Section to which the case had been allocated decided to apply Rule 39 until the Chamber had been afforded the opportunity to consider the request made. The following questions were asked of the United Kingdom Government: (i) Do the undertakings as provided by the United States’ Government by way of Diplomatic Note, dated 12 June 2014, adequately respond to the concerns raised by this Court in its judgment of 16 April 2013 regarding the extradition of the applicant?; and (ii) Would the extradition of the applicant to the United States of America be in breach of the United Kingdom’s obligations under Article 3?

On 19 September 2014 the United Kingdom Government submitted its response. It stated that since the Strasbourg judgment of April 2013, there had been further domestic decisions which demonstrated that the concerns that had given rise to that decision had been comprehensively addressed. Moreover, the Government asserted that those concerns could be summarised as follows: a lack of information concerning the circumstances of the applicant’s detention pre-trial; a lack of clarity as to how long the period of pre-trial detention might last; the implications of a finding in the United States that the applicant was unfit to stand trial; and an on-going concern that the applicant might be subjected to prolonged periods of social isolation in detention at ADX Florence following a conviction. The culmination of the information and assurances received by the Government of the United States had addressed those concerns. Specifically, the applicant would be detained at a private detention medical facility for an approximate period of no more than eighteen months; if a competency assessment was requested and the applicant was found to be unfit to plead, he would be placed in the custody of the Attorney General and detained at a psychiatric referral centre; and if found to be unable to manage his daily activities, including his taking of prescribed medication, it was unlikely that the applicant be detained at ADX Florence, rather he would be detained at a medical centre. The Government concluded that the extradition of the applicant would not be in breach of the United Kingdom’s obligations under Article 3 of the Convention.

On 23 September 2014 the Chamber, having considered the applicant’s case based on the new factual information before it, decided to lift the interim measure previously indicated.

The applicant was extradited to the United States of America on 21 October 2014.

For a general summary of the relevant domestic and international law and practice regarding extradition, see the Court’s judgment in Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, §§ 62 - 80, 10 April 2012.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6+6-1 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Fair hearing)

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicant, a former police officer, was born in 1962 and lives in Zaporizhzhya. He is also acting on behalf of his son, V., who was born in 1991.

On 13 September 2003 four people, including the applicant, were apprehended by officers of the Zaporizhzhya office of the Security Service of Ukraine (Служба Безпеки України – “the SBU”) in Novokateshchino village while attempting to transport opiate drugs with a view to selling them on. They were taken to the SBU’s premises for questioning. After being informed of his privilege against self-incrimination, the applicant made a written statement to the effect that he had appeared at the crime scene by chance, at the request of a friend with whom he and his son had been looking for a place to fish.

Later the same day criminal proceedings were instituted against the applicant and two other people on suspicion of illegal production, storage and sale of drugs.

On 14 September 2003 criminal proceedings were instituted against the applicant and the two others on suspicion of membership of an organised crime group.

On the same date the applicant was arrested. Having been informed of his procedural rights as a suspect, he refused to give evidence without a lawyer present.

On 15 September 2003 the applicant’s wife hired a lawyer, G., to represent the applicant.

On 16 September 2003 the applicant’s pre-trial detention was ordered by a court.

On 19 September 2003 the applicant requested that G. be admitted to the proceedings as his lawyer.

On the same date, in the presence of his lawyer, the applicant denied his involvement in the crime.

On 23 September 2003, in the presence of his lawyer, the applicant was charged with drug-related crimes and questioned. He did not want to be informed of his rights and stated that he would not give any evidence during the pre-trial investigation.

On 2 October 2003 the applicant was questioned in the presence of his lawyer. He provided some biographical details as well as information on his family status, state of health and place of residence.

On 18 November 2003 the applicant was again questioned in the presence of his lawyer.

On 15 December 2003 all the criminal proceedings against the applicant were joined.

On 18 December 2003 the applicant was questioned in the presence of his lawyer. He did not confess to the crimes.

On 22 and 23 December 2003 confrontations between the applicant and his co-accused were conducted with his lawyer present.

On 24 December 2003 amended charges were brought against the applicant in his lawyer’s presence. The applicant pleaded not guilty.

On 6 February 2004 the applicant’s wife was admitted to the proceedings as the applicant’s lay representative.

On 10 February 2004, upon his written consent, the applicant was questioned without a lawyer.

On 9 March 2004 the criminal case against the applicant and his coaccused was sent to the Leninsky District Court of Zaporizhzhya (“the District Court”). During the trial the applicant pleaded not guilty. He maintained that the case had been fabricated by his enemies and that all the evidence had been falsified and was inadmissible. In fact, he, a retired police officer, had been arrested in the company of drug addicts with whom he had been in contact as an advisor to the local police. They might have been producing drugs for their own use. He further claimed that his case should benefit from being examined in camera by a judge who had security clearance, to protect State secrets concerning the functioning of his network of informants.

In May 2004 F., a lawyer hired by the applicant’s wife, was admitted to the proceedings to represent the applicant.

On 25 October 2005, after having heard the case in public hearings, the District Court convicted the applicant and his co-defendants of drugrelated offences. The applicant was sentenced to eight-and-a-half years’ imprisonment and the confiscation of his personal property was ordered.

The applicant, represented by his lawyer and his wife, appealed. He repeated his arguments advanced at trial and complained that he had been unable to defend himself properly during the trial as he had been reticent in order to safeguard confidential information concerning the network of informants. He also complained of various procedural breaches in the collection of evidence. He alleged, with no further details, that he had had no access to a lawyer from the first questioning and, even after his lawyer had been allowed access, the authorities had tried to carry out a number of investigative steps without the lawyer present.

On 26 April 2006 the Zaporizhya Regional Court of Appeal allowed the defence’s request to have the proceedings held in camera to prevent public disclosure of information concerning the network of informants and required all the defence lawyers and representatives to undergo security clearance to continue taking part in the proceedings. The applicant’s wife did not receive security clearance in time for the appeal hearing and did not attend it.

On 22 June 2006 the Court of Appeal upheld the trial court’s judgment.

On 18 December 2007, following a prior appeal by the applicant, the Supreme Court of Ukraine quashed this decision and remitted the case for fresh consideration. It noted, in particular, that the applicant’s right to defence had been breached since the applicant’s wife had been unable to take part in the appeal hearing. It further found that the Court of Appeal had addressed the parties’ arguments in a summary way only, while it should have given detailed explanations in response to those arguments.

On 22 December 2008 the Court of Appeal reviewed the case in the presence of the applicant’s wife. It upheld the applicant’s conviction, reduced his sentence to eight years’ imprisonment and ordered the confiscation of his personal property. The conviction was mainly based on the records of the crime-scene inspection and the testimonies of the applicant’s co-defendants, which the trial court found to be corroborated by witness statements, and other evidence in the case.

On 2 July 2009 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law.

The applicant’s twelve-year-old son was with him when he was apprehended on 13 September 2003. He was taken with him to the SBU and remained in the same room with the applicant for most of the time. No other family members were informed of the boy’s whereabouts.

On the morning of 14 September 2014, after the applicant had been formally arrested, his son was returned to his mother.

On 3 January 2004 the applicant’s wife lodged a criminal complaint with the Zaporizhzhya regional prosecutor’s office (“the prosecutor’s office”) in which she alleged, inter alia, that her son had been unlawfully detained at the SBU’s premises between 13 and 14 September 2003.

On 9 February 2004, having questioned the applicant and the SBU officers, the prosecutor refused to institute criminal proceedings as it had been established that no pressure had been applied to the applicant’s son and that he had been able to move freely and had not been deprived of his liberty. It was further noted that the applicant had not complained of the SBU staff’s attitude towards his son.

On 20 April 2004 the applicant’s son challenged the above decision before the Prosecutor General.

In April 2004 the applicant and his wife lodged another complaint concerning the alleged unlawful detention of their son with the prosecutor’s office.

On 7 May 2004 the prosecutor’s office, having questioned the applicant, his wife and son, as well as the SBU officers and some witnesses, refused to institute criminal proceedings in respect of the above complaint, having found no corpus delicti in the officers’ actions. It was established during the relevant investigation that the applicant’s son had been taken to the SBU’s premises at the applicant’s request and had not been arrested or detained and had been returned to his relatives as soon as the decision to arrest the applicant had been taken; and that the applicant had raised no complaints during his son’s stay at the SBU. It was also noted in the relevant resolution that the applicant’s wife had refused to provide her son’s medical file to prove her allegations concerning the worsening of his state of health and that there had been a contradiction in the applicant’s statements and between his and his son’s account of events. The prosecutor thus concluded that the allegations of unlawful deprivation of liberty or of other violations of the applicant’s son’s rights appeared to be ill-founded. He noted that no intention on the part of the officers to interfere with the applicant’s son’s personal security, specifically his freedom of movement, had been established. Likewise, there had been no evidence that the applicant’s son had been subject to any form of pressure or ill-treatment.

On 11 May 2004 the applicant’s wife and son instituted civil proceedings against the SBU before the Zhovtnevy District Court of Zaporizhzhya claiming damages for the unlawful detention of her son. Following a request of the applicant’s wife of 15 October 2004, her civil claim was joined to the criminal proceedings against the applicant.

On 23 July 2004 the deputy prosecutor of Zaporizhzhya Region quashed the resolution of 7 May 2004 as being premature, given that no evidence regarding the applicant’s son’s state of health had been obtained.

On 31 July 2004, having questioned the applicant’s son’s doctors who had observed him in the course of his care previously, the prosecutor again refused to institute criminal proceedings for the same reasons as before. It was noted, inter alia, that none of the doctors had observed any worsening of the applicant’s son’s state of health and that no worsening of his health had been evident from his medical file either.

On 14 October 2004 the prosecutor’s office instituted disciplinary proceedings against two officers of the SBU for their negligence towards the applicant’s son. It noted, inter alia, that the applicant’s son had not been formally arrested (затриманий) but had been kept at the SBU’s premises for no reason and no measures had been taken to return him to his relatives. The prosecutor further observed that the applicant’s son had not been subject to any form of ill-treatment. He also stressed the fact that the applicant’s arrest report had been drafted only the next day after the applicant’s initial arrest, in breach of the requirements of the domestic law. This resolution had been sent to the SBU for relevant measures to be taken.

On 27 October 2004 the SBU informed the prosecutor’s office that the respective officers could no longer be disciplined as the one-year statutory time-limit had expired. It was also observed in that letter that no violations of domestic law by the SBU officers had been established by a number of investigations into the events complained of and that the applicant’s son had stayed with the applicant at the SBU’s premises from 13 to 14 September 2003 at the applicant’s own request.

On 5 November 2004 the applicant’s wife complained to the Prosecutor General about the prosecutor’s decision of 31 July 2004.

On 25 October 2005, when convicting the applicant, the District Court delivered a separate ruling, in which it listed the procedural violations committed by the investigating authorities in the criminal proceedings against the applicant. The fact that the applicant’s son had remained in the SBU’s premises for about twenty-four hours after the applicant’s initial arrest, without his relatives having been informed of his whereabouts and with no medical assistance provided in view of the stress he had been under, was listed among the violations referred to by the court. The Chief of the SBU in Zaporizhzhya was invited by the court to take appropriate measures in view of the above mentioned violations.

On 25 January 2006 the applicant appealed to the Ordzhonikidzevsky District Court of Zaporizhzhya against the prosecutor’s refusal of 31 July 2004 to institute criminal proceedings against the SBU officers.

On 3 April 2006 the applicant’s complaint was left without consideration on the merits. The court noted in this connection that the relevant investigation files had been joined to the criminal case against the applicant and that therefore the prosecutor’s decision was not subject to appeal outside of those criminal proceedings.

During the proceedings in his criminal case before the Court of Appeal and the Supreme Court the applicant and his wife repeatedly requested, referring to the separate ruling of 25 October 2005 by the District Court (see paragraph 45 above), that measures be taken to bring the respective officers to trial for the unlawful detention of their son. The case file does not suggest that in their appeals the applicant or his wife claimed damages in this connection.

On 22 December 2008, in its judgment upholding the applicant’s conviction, the Court of Appeal observed that the complaint related to the unlawful detention of the applicant’s son had been considered by the prosecutor’s office and no corpus delicti under criminal law had been found on the part of the SBU officers. The court made no separate ruling in this connection. The Supreme Court did not address this issue in its decision of 2 July 2009.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković

The applicant was born in 1980 and lives in Zagreb.

On 19 May 2011 the Split Office of the National Police Unit for the Suppression of Corruption and Organised Crime (Policijski nacionalni ured za suzbijanje korupcije i organiziranog kriminaliteta, Odjel za suzbijanje korupcije i organiziranog kriminaliteta Split; hereinafter: “the police”) lodged a criminal complaint against the applicant before the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Državno odvjetništvo, Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: “the State Attorney’s Office”), alleging that he had participated in an organised international drug-trafficking scheme.

On the basis of the extensive evidence collected during the preliminary investigation, including through mechanisms of international legal assistance in criminal matters from the authorities in Spain, Slovenia and the Netherlands, and the results of secret surveillance measures, on 20 May 2011 the State Attorney’s Office opened an investigation in respect of the applicant and nine other persons suspected of drug trafficking. In particular, it was alleged that the applicant had participated in an organised drug-trafficking scheme by securing the means of communication between other members of the group.

During the investigation, the State Attorney’s Office questioned a number of witnesses and obtained further voluminous evidence from the police. It also commissioned telecommunication expert reports and requested assistance in obtaining evidence from the authorities in Spain, Slovenia, the Czech Republic, Bosnia and Herzegovina and the Netherlands.

On 9 November 2011 the State Attorney of the Republic of Croatia (Glavni državni odvjetnik Republike Hrvatske) extended the investigation for a further six months.

Following the completion of the investigation, on 16 May 2012 the State Attorney’s Office indicted the applicant and nine other defendants in the Split County Court (Županijski sud u Splitu) on charges of drug trafficking. It alleged that the applicant had facilitated communication between other members of the group operating an international drug-trafficking scheme.

On 18 May 2012 the investigating judge forwarded the indictment to the defendants, instructing them that they could submit their comments on it within a period of eight days.

On 28 May 2012 the applicant denied the charge, alleging numerous substantive and procedural flaws.

Several hearings for the confirmation of the indictment were held before a three-judge panel of the Split County Court. Meanwhile, the defence lawyers challenged the decision on the admissibility of evidence before the Supreme Court.

On 23 November 2012 the applicant complained to the Supreme Court of a lack of diligence in the conduct of the proceedings. He pointed out that the Supreme Court had not yet decided on the question of the admissibility of the evidence, which was incompatible with the requirement of due diligence in the conduct of the proceedings.

On 25 January 2013 a three-judge panel of the Split County Court confirmed the indictment and referred the case to trial.

The criminal proceedings against the applicant are still pending.

On 19 May 2011 the applicant was arrested in connection with the criminal complaint lodged against him by the police (see paragraph 6 above).

The next day, after hearing the applicant’s defence, the State Attorney’s Office ordered that he be remanded in custody for a period of forty-eight hours.

Following the opening of the investigation against him, on 20 May 2011 the State Attorney’s Office asked an investigating judge (sudac istrage) of the Split County Court to order the applicant’s pre-trial detention (istražni zatvor). It also requested that the other defendants be remanded in custody.

On the same day the investigating judge accepted the request and ordered the applicant’s pre-trial detention for one month under Article 123 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and gravity of charges). He also ordered the pre-trial detention of nine other defendants in the proceedings. The relevant part of the decision reads:

“Reasonable suspicion that the suspects committed the offences at issue follows from the criminal complaint lodged by [the police] and the [supporting material] ...

The pre-trial detention of all the suspects, save for Đ.F. and N.E. who are detained in Spain, was ordered under Article 123 § 1 (2) of the Code of Criminal Procedure. The suspects Š.L. and D.J. ... are still at large and there is therefore a risk that if the other suspects were at large, they could hinder the proper conduct of the proceedings by influencing [Š.L. and D.J.]. In addition, a number of witnesses should be questioned concerning the offences at issue ... and, since they know the suspects or are relatives of theirs, there is a risk that the suspects, if at large, could hinder the proper conduct of the proceedings by influencing the witnesses ...

The pre-trial detention of all the suspects, save for S.R., was also ordered under Article 123 § 1 (4) of the Code of Criminal Procedure. This court finds it necessary to order detention under this provision also so as to ensure the proper conduct of the proceedings, given that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, it is alleged that the suspects have smuggled over 700 kilograms of cocaine, which can be used to make a significant number of individual doses and thus to endanger the health of a high number of persons. Moreover, the suspects have allegedly operated on the territories of several countries, where they organised networks of persons helping them in the commission of the offences, which suggests a particularly organised and systemic approach in the commission of the offences. Apparently large sums of money were also spent for the [distribution and] transport of the drugs from South America. This suggests, in the view of this court, that the circumstances of the offence are particularly serious, surpassing the circumstances in which such offences are ‘usually’ committed ...”

The applicant challenged the decision of the investigating judge before a three-judge panel of the Split County Court, arguing that the judge had failed to take into account the extent of his specific participation in the alleged offences at issue. He pointed out that his alleged role in the commission of the offences was peripheral and irrelevant, since his only contact with the case was through the third defendant, whom he had known from the past but had not suspected of being involved in a criminal activity. The applicant also stressed that he was a self-employed car mechanic and had had no previous conflict with the law. He therefore requested that less severe preventive measures be applied for securing his proper participation in the proceedings.

On 6 June 2011 a three-judge panel of the Split County Court dismissed the appeals lodged by the applicant and two other defendants. The relevant part of the decision reads:

“It is alleged that the suspects, acting within an organised group, obtained cocaine abroad and transported it to Croatia for the purpose of its further distribution. The proceedings at issue concern not only a serious and socially dangerous offence, but there are also other specific circumstances showing the seriousness of the case. The suspects obtained the drugs in South America, in large quantities of several hundreds of kilograms, and the whole process of transporting the drugs required a high degree of organisation and distribution of work. The quantity of drugs found, namely around 370 grams [sic] of cocaine, is higher than in other [similar cases]. The investigating judge thus correctly concluded that in respect of the suspects S.K. and Vlatko Šoš the circumstances of the offence are particularly serious, which also justifies the fear that the suspects might reoffend. There are therefore sufficient reasons for pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure.

Furthermore, since in the further course of the proceedings, as indicated in the investigating judge’s decision, it is necessary to question a number of witnesses who have relevant knowledge of the offences at issue and know the suspects S.K., Vlatko Šoš and S.R., the investigating judge correctly ordered the detention under Article 123 § 1 (2) of the Code of Criminal Procedure.

Given that the investigating judge’s decision ordering the detention is justified, there are no grounds for accepting the requests of the suspects, put forward in the appeals, to replace their detention by alternative measures.”

On 17 June 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and gravity of charges), reiterating his previous arguments.

The applicant challenged that decision,. On 7 July 2011 a three-judge panel of the Split County Court dismissed his complaints, endorsing the reasoning of the investigating judge.

On 18 August 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). He found that all the relevant witnesses had been questioned and that there was no further possibility of remanding the applicant in detention on the grounds of the risk of collusion. As to the other grounds relied upon for the applicant’s detention, the investigating judge reiterated his previous findings.

The applicant lodged an appeal against that decision before a three-judge panel of the Split County Court, arguing that his detention had been constantly extended without providing any reasons relevant to his particular situation. He also requested that his detention be replaced by house arrest.

On 27 September 2011 a three-judge panel of the Split County Court dismissed the applicant’s appeal, endorsing the findings of the investigating judge. It provided no reasoning concerning the applicant’s request for the replacement of his detention by house arrest.

On 18 October 2011 the investigating judge extended the applicant’s pre-trial detention for two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads:

“The pre-trial detention of all the suspects was also ordered under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of the [suspects’] organisation, and the fact that they have allegedly smuggled over 700 kilograms of cocaine, 338 kilograms of which has been seized in Spain, this court finds that it suggests special circumstances justifying the fear that they may reoffend. ...

The pre-trial detention of all the suspects, save for S.R., was also ordered under Article 123 § 1 (4) of the Code of Criminal Procedure. This court finds it necessary to order detention under this provision, also so as to ensure the proper conduct of the proceedings, given that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a long prison sentence has been prescribed. Specifically, it is alleged that the suspects have smuggled over 700 kilograms of cocaine, which can be used to make a significant number of individual doses and thus to endanger the health of a high number of persons. Moreover, the suspects have allegedly operated on the territories of several countries, where they organised networks of persons helping them in the commission of the offences, which suggests a particularly organised and systemic approach in the commission of the offences. Apparently large sums of money were also spent for the [distribution and] transport of the drugs from South America. This suggests, in the view of this court, that the circumstances of the offence were particularly serious, surpassing the circumstances in which such offences are ‘usually’ committed ...”

The applicant lodged an appeal against the above decision, asking to be released and for less severe preventive measures to be applied. On 28 October 2011 a three-judge panel of the Split County Court dismissed his appeal as ill-founded, reiterating its previous arguments and without providing further reasons for refusing the applicant’s request.

On 15 November 2011 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against those decisions, arguing that the reasons given for his continued detention were neither relevant nor sufficient. He pointed out that the Split County Court had collectively extended the pre-trial detention of all the defendants in the proceedings, without taking into account his specific arguments.

On 18 November 2011 the investigating judge extended the applicant’s pre-trial detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). In his decision, the investigating judge stated that the initial grounds for the applicant’s detention had not changed. The judge also noted that owing to the complexity of the case, the investigation would be extended for a further six months.

The applicant appealed against that decision, arguing that it lacked the relevant reasoning. He also asked to be released on bail or for the application of other less severe preventive measures.

On 6 December 2011 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments. It held that, in view of the gravity of the offences at issue, the applicant’s detention could not be replaced by less severe preventive measures, nor could he be released on bail.

On 9 and 16 December 2011 the applicant urged the Constitutional Court to decide on his constitutional complaint of 15 November 2011 (see paragraph 30 above).

On 22 December 2011 the Constitutional Court declared the applicant’s constitutional complaint of 15 November 2011 inadmissible on the ground that a new decision on his detention had been adopted in the meantime, namely on 18 November 2011 (see paragraph 31 above), and that his detention was no longer based on the impugned decision. This decision was served on the applicant’s representative on 10 January 2012.

On 18 January 2012 the investigating judge extended the applicant’s detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) on the ground that the relevant circumstances warranting his detention had not changed.

The applicant lodged an appeal against the above decision, arguing that it lacked the relevant reasoning and asking that his detention be replaced by less severe preventive measures.

On 31 January 2012 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments concerning the necessity of the defendants’ continued detention.

On 14 February 2012 the applicant lodged a constitutional complaint before the Constitutional Court, arguing that in extending his detention throughout the investigation, the court had always used the same wording and phrases. He pointed out that the Split County Court had failed to make a proper assessment of the necessity of his continued detention given that its decisions were merely a reproduction of the same wording provided in the initial decision ordering his detention on 20 May 2011.

On 22 February 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the Split County Court. The relevant part of the decision reads:

“The impugned decision of the investigating judge ... provides detailed and clear reasoning with regard to the relevant legal circumstances related to the appellant’s [detention].

The Constitutional Court finds that the impugned decisions comply with the relevant constitutional [requirements] concerning the extension of the appellant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure.”

On 16 March 2012 the investigating judge extended the applicant’s detention for a further two months under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) on the ground that nothing had changed in the relevant circumstances warranting his continued detention.

The applicant appealed against that decision, reiterating his request for release and the application of less severe preventive measures.

On 29 March 2012 a three-judge panel of the Split County Court dismissed the applicant’s appeal as ill-founded, reiterating its previous arguments. It found that it was not possible to release him and to apply less severe preventive measures in view of the particular gravity and seriousness of the charges against him.

Following the submission of the indictment against the applicant to the Split County Court (see paragraph 10 above), on 18 May 2012 a three-judge panel of that court extended the applicant’s detention pending trial under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) without setting any time-limits for the detention. The relevant part of the decision reads:

“Against the defendant:

Vlatko Šoš ...

the pre-trial detention is extended and it should continue further

... on the basis of Article 123 § 1 (3) and (4) of the Code of Criminal Procedure ...

Statement of reasons

Reasonable suspicion that the suspects have committed the offences at issue follows from the indictment submitted by the [State Attorney’s Office] and the evidence listed in the indictment.

The detention of the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš was also extended under Article 123 § 1 (4) of the Code of Criminal Procedure. This panel finds that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, the very fact that [the case] concerns a large number of persons organised in a criminal enterprise for the purpose of trafficking large quantities of cocaine, for which purpose the defendant P.Ć. established a criminal organisation in Croatia, as well as the fact that a venture of trafficking of large quantities of the drug, such as the one smuggled by the defendants, is not undertaken by individuals who are not aware of the trafficking, suggest that the circumstances of the offence are particularly serious. The defendants are charged with acting on the basis of a prepared plan and agreement for permanently trafficking large quantities of cocaine, and in the period between January 2010 and 19 May 2011 they smuggled large quantities of [that drug] for the purpose of further distribution. The undisputed purity of the last shipment of the seized cocaine, amounting to 338.29 kilograms, means that it could have been used for making at least 3,000 doses for individual use ... which on the black market could have endangered the health of a high number of persons. These circumstances of the offence surpass the usual circumstances in which [such offences] are committed, and therefore they suggest its particular gravity.”

The applicant appealed to the Supreme Court (Vrhovni sud Republike Hrvatske) against the above decision, arguing that the Split County Court had failed to adduce any relevant reason warranting his continued detention. He pointed out in particular that the individual circumstances of his case had not been examined, such as the fact that he had not had any previous conflict with the law. This called into question the findings of the Split County Court that he could reoffend. He also asked that his detention be replaced by less severe preventive measures.

On 15 June 2012 the Supreme Court dismissed the applicant’s appeal as ill-founded, endorsing the decision of the Split County Court. It did not examine the possibility of replacing the applicant’s detention by the application of alternative preventive measures. With regard to the applicant’s specific arguments, the Supreme Court held:

“The importance of the reasons making the detention under Article 123 § 1 (3) of the Code of Criminal Procedure necessary and the only appropriate measure for averting the risk of reoffending has not been called into question by the appeal arguments of the defendants S.K. and Vlatko Šoš that they did not have a criminal record. The fact that ... prior to his arrest [Vlatko Šoš] was well-known as a hardworking and decent person who was earning money by working as a car mechanic could be taken into account in the sentencing, in the event of his conviction.”

On 13 August 2012 a three-judge panel of the Split County Court again extended the applicant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating its previous arguments and without setting any time-limits for the applicant’s detention. It did not examine the possibility of replacing his detention by the application of less severe preventive measures.

The applicant challenged the decision of the Split County Court before the Supreme Court, arguing that the courts had extended his detention throughout the period of his remand by constantly repeating the same phrases and almost identical wording, and without a proper assessment of the individual circumstances of his case. He also asked that his detention be replaced by less severe preventive measures.

On 12 September 2012 the Supreme Court dismissed the applicant’s appeal as ill-founded on the ground that there was nothing calling into question the findings of the Split County Court concerning the necessity of his continued detention. It also stressed that, in view of the gravity of the charges and the persisting risk of reoffending, the applicant’s detention could not be replaced by less severe preventive measures.

On 22 October 2012 the applicant lodged a constitutional complaint against the above decision. He contended that the lower courts had constantly extended his pre-trial detention throughout the proceedings, always using the same stereotyped formulae and phrases. He considered, therefore, that they had failed to adduce any relevant and sufficient reasons for his continued detention. He pointed out the wording of the decisions extending his detention and the fact that his detention had been extended during the trial without setting any time-limits.

On 6 November 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. In particular it held:

“The Constitutional Court finds in the case at hand that the impugned decisions were adopted on the basis of the competent courts’ careful assessment of the reasons justifying the extension of the appellant’s t issue is punishable by long-term imprisonment) and that the [competent courts] provided sufficient reasons justifying [the detention].”

On 9 November 2012 a three-judge panel of the Split County Court extended the applicant’s detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), without setting any time-limits for the detention. The relevant part of the decision reads:

“With regard to the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš the detention was extended under Article 123 § 1 (3) of the Code of Criminal Procedure. Given the scale of the alleged criminal activity, the period in which it has taken place, the extent of [the defendants’] organisation, and the fact that they have allegedly smuggled large quantities of cocaine for the purpose of its further distribution, 338 kilograms of which has been seized in Spain, this panel finds that it suggests special circumstances justifying the fear that they may reoffend.

The detention of the defendants P.Ć., M.V., A.Ć., S.K. and Vlatko Šoš was also extended under Article 123 § 1 (4) of the Code of Criminal Procedure. This panel finds that the case concerns a particularly grave offence under Article 173 § 3 of the Criminal Code for which a sentence of long-term imprisonment has been prescribed. Specifically, the very fact that [the case] concerns a large number of persons organised in a criminal enterprise for the purpose of trafficking large quantities of cocaine, for which purpose the defendant P.Ć. established a criminal organisation in Croatia, as well as the fact that a venture of trafficking of large quantities of the drug, such as the one smuggled by the defendants, is not undertaken by individuals who are not aware of the trafficking, suggest that the circumstances of the offence were particularly serious. The defendants are charged with acting on the basis of a prepared plan and agreement for permanently trafficking large quantities of cocaine, and in the period between January 2010 and 19 May 2011 they smuggled large quantities of [that drug] for the purpose of further distribution. The undisputed purity of the last shipment of the seized cocaine amounting to 338.29 kilograms means that it could have been used for making at least 3,000 doses for individual use ... which, on the black market, could have endangered the health of a high number of persons. These circumstances of the offence surpass the usual circumstances in which [such offences] are committed, and therefore they suggest that the charges are particularly serious.”

The applicant appealed against the above decision to the Supreme Court. On 28 November 2012 the Supreme Court dismissed his appeal as ill-founded, upholding the decision of the Split County Court.

On 25 January 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating the wording of its previous decision and without setting any time-limits for the detention.

The applicant appealed against the decision on his pre-trial detention to the Supreme Court, arguing that it lacked relevant and sufficient reasons.

On 20 February 2013 the Supreme Court found that the applicant’s detention was to be extended only under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). It explained that the 2013 amendments to the Criminal Code provided that the offence at issue was punishable by a prison sentence of between three and fifteen years and no longer by long-term imprisonment. It was therefore not possible to remand the applicant on the grounds of the gravity of the charges since the possibility of imposing a sentence of long-term imprisonment was one of the conditions for extending pre-trial detention under Article 123 § 1 (4) of the Code of Criminal Procedure (gravity of charges).

On 20 April 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), relying on its previous reasoning and without setting any time-limits for the detention.

The applicant appealed against that decision before the Supreme Court, reiterating that his continued detention had not been based on relevant and sufficient reasons. On 24 May 2013 the Supreme Court dismissed his appeal as ill-founded.

Meanwhile, on 17 May 2013, following the expiry of the maximum period of the applicant’s pre-trial detention, a three-judge panel of the Split County Court exceptionally extended this maximum time-limit for his detention for a further six months, relying on section 35 of the Act on the Office for the Suppression of Corruption and Organised Crime (see paragraph 71 below). It held that the time-limit for his detention before the adoption of the first-instance judgment would expire on 19 November 2013.

The applicant challenged the extension of the time-limit for his pre-trial detention before the Supreme Court, arguing that such a measure was unreasonable. He pointed out that the first-instance judgment could not be adopted before 19 November 2013 given that so far only the preparatory hearing had been scheduled. The applicant also contended that the impugned decision lacked relevant and sufficient reasons warranting his continued detention on the ground of the risk of reoffending.

On 7 June 2013 the Supreme Court dismissed the applicant’s appeal, upholding the decision to extend the time-limit for his pre-trial detention.

On 2 August 2013 a three-judge panel of the Split County Court extended the applicant’s pre-trial detention under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating its previous reasoning and without setting a time-limit for the detention. It also held that the applicant’s detention could not be replaced by less severe preventive measures.

The applicant challenged that decision before the Supreme Court,, his continued detention was unreasonable.

On 9 September 2013 the Supreme Court dismissed the applicant’s appeal, upholding the decision of the Split County Court.

On 19 November 2013 the applicant was released from detention as the maximum statutory time-limit for his detention had expired.