CASE OF CUPAĆ v. CROATIA
(Application no. 12025/16)
22 April 2021
This judgment is final but it may be subject to editorial revision.
In the case of Cupać v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Krzysztof Wojtyczek, President,
Lorraine Schembri Orland, judges,
and Attila Teplán, Acting Deputy Section Registrar,
Having deliberated in private on 23 March 2021,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 12025/16) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Aleksandar Cupać (“the applicant”), on 24 February 2016.
2. The applicant was represented by Mr G. Marjanović, a lawyer practising in Rijeka. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. On 6 February 2017 notice of the complaint concerning the failure of the Constitutional Court to decide on the applicant’s constitutional complaint on the merits was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1979 and lives in Rijeka.
5. On 12 July 2014 he was arrested on suspicion of causing a road traffic accident that resulted in the deaths of two persons.
6. On 13 July 2014 an investigating judge of the Rijeka County Court (Županijskisud u Rijeci) ordered his pre-trial detention under Article 123 § 1 (2) and (3) of the Code of Criminal Procedure (Zakon o kaznenompostupku) on the grounds of risk of collusion and risk of reoffending. The Court also ordered bail under Article 124 § 2 (5) of the Code of Criminal Procedure which could replace pre-trial detention.
7. On 21 July 2014 a three-judge panel of the Rijeka County Court decided to grant the appeal of the Rijeka Municipal State Attorney’s Office (Općinskodržavnoodvjetništvo u Rijeci) and order pre-trial detention without the possibility of bail.
8. On 2 March 2015 the Rijeka County Court terminated the applicant’s pre-trial detention due to the expiration of the maximum period of pre-trial detention prior to indictment.
9. On 17 April 2015, the Rijeka Municipal State Attorney’s Office filed an indictment against the applicant on charges of causing a road traffic accident that resulted in the deaths of two persons.
10. On 11 May 2015 the Rijeka Municipal Court (Općinskisud u Rijeci) dismissed the motion of the Rijeka Municipal State Attorney’s Office to order pre-trial detention against the applicant as ill-founded.
11. On 1 June 2015 the Rijeka County Court decided to grant the appeal of the Rijeka Municipal State Attorney’s Office and order the applicant’s pre-trial detention under Article 123 § 1 (3) of the Code of Criminal Procedure on the grounds of risk of reoffending. The Court also ordered bail under Article 102 § 1 and 2 and Article 103 § 1 of the Code of Criminal Procedure which could replace pre-trial detention.
12. On 10 June 2015 the applicant was released on bail.
13. Meanwhile, on 3 July 2015 the applicant lodged a constitutional complaint against the decision of the Rijeka County Court of 1 June 2015 (see paragraph 11 above), complaining of the unlawfulness and unreasonableness of his pre-trial detention.
14. On 21 September 2015 the Constitutional Court (UstavnisudRepublikeHrvatske) declared the applicant’s constitutional complaint inadmissible on the ground that the applicant had in the meantime been released.
II. RELEVANT DOMESTIC LAW AND PRACTICE
15. Relevant domestic law and practice have been summarised in Osmanović v. Croatia, no. 67606/10, §§ 45-52, 6 November 2012.
I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
16. The applicant complained that he had not been able to obtain an effective judicial review of the lawfulness of his pre-trial detention by the Constitutional Court, as provided for by Article 5 § 4 of the Convention, which reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
17. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ arguments
18. The applicant argued that, by failing to decide his constitutional complaint on the merits, the Constitutional Court had not met the requirements under Article 5 § 4 of the Convention.
19. The Government argued that the pre-trial detention decision was no longer in effect when the applicant had lodged the constitutional complaint. Moreover, the applicant had been released almost a month prior to lodging of his constitutional complaint. The applicant must have known that the impugned decision on his detention had already become ineffective at the moment when he had lodged his constitutional complaint and therefore, according to the well-established case-law of the Constitutional Court, he had no longer been entitled to judicial review of his pre-trial detention. Any decision by the Constitutional Court on the merits, even if it had found a violation, could not have corrected applicant’s situation, as he had already been released. The applicant was not deprived of his freedom when he initiated the proceedings before the Constitutional Court, which means there was no misconception of a possible violation of his rights or justified reasons for the Constitutional Court to examine the merits of the challenged decision or its compliance with the Constitution.
2. The Court’s assessment
20. The Court has already examined, in a number of previous cases against Croatia, the Constitutional Court’s practice of declaring constitutional complaints inadmissible where a fresh decision extending detention has been adopted before it has given its decision. In this connection, the Court has found a violation of Article 5 § 4 of the Convention in that the Constitutional Court’s failure to decide on the applicants’ constitutional complaints on the merits made it impossible to ensure the proper and meaningful functioning of the system for review of their detention provided for by national law (see Peša v. Croatia, no. 40523/08, § 126, 8 April 2010;Hađi v. Croatia, no. 42998/08, § 47, 1 July 2010; Bernobić v. Croatia, no. 57180/09, § 93, 21 June 2011; Krnjak v. Croatia, no. 11228/10, § 54, 28 June 2011;Šebalj v. Croatia, no. 4429/09, § 223, 28 June 2011; Getoš-Magdić v. Croatia, no. 56305/08, § 106, 2 December 2010; Trifković v. Croatia, no. 36653/09, §§ 139-140, 6 November 2012; Margaretićv. Croatia, no. 16115/13, §§ 117-121, 5 June2014;V.R. v. Croatia, no. 55102/13, §§ 20-23, 13 October 2015; and Osmanović, cited above, §§ 45-52).
21. While the Court notes the positive changes in the approach of the Constitutional Court introduced in January 2014, removing any lack of effectiveness of the review procedure before it (see paragraph 15 above), it observes that the applicant’s case was dealt with under the old approach, which was found to be contrary to the requirements of Article 5 § 4 of the Convention. The Court therefore sees no reason to depart from its findings in the cases cited above (see paragraph 20 above).
22. This conclusion is not altered by the fact that the applicant had lodged his constitutional complaint against the decision on his detention only after his pre-trial detention was terminated on 10 June 2015 and he had been released (see Osmanović, cited above, §§ 45-52).
23. There has accordingly been a violation of Article 5 § 4 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
24. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
25. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.
26. The Government considered the applicant’s claim excessive, unsubstantiated and unfounded.
27. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. In view of the circumstances of the present case and ruling on an equitable basis, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.
B. Costs and expenses
28. The applicant also claimed 18,750 Croatian kunas (approximately EUR 2,500) for the costs and expenses incurred in the domestic proceedings before the Constitutional Court and before the Court.
29. The Government contested that claim.
30. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 2,000 plus any tax that may be chargeable to the applicant.
C. Default interest
31. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declaresthe application admissible;
2. Holdsthat there has been a violation of Article 5 § 4 of the Convention;
(a) that the respondent State is to pay the applicant, within three months, the following amounts,to be converted into Croatian kunas at the rate applicable at the date of settlement:
(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 22 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Attila Teplán Krzysztof Wojtyczek
Acting Deputy Registrar President