FIRST SECTION

DECISION

Application no . 34722/11 Antun GUDELJ against Croatia

The European Court of Human Rights (First Section), sitting on 2 October 2012 as a Chamber composed of:

Anatoly Kovler , President, Nina Vajić , Peer Lorenzen , Khanlar Hajiyev , Mirjana Lazarova Trajkovska , Julia Laffranque , Linos-Alexandre Sicilianos , judges ,

and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 23 May 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Antun Gudelj , is a Croatian national, who was born in 1947 and lives in Sidney , Australia . Currently he is serving a prison term in Croatia . He was represented before the Court by Mr P. Sabolić , a lawyer practising in Osijek . The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik .

A. The circumstances of the case

2. On 9 July 1991 an investigation was opened in respect of the applicant before the Osijek County Court ( Županijski sud u Osijeku ) in connection with a suspicion that he had committed three murders and one attempted murder.

3. The investigating judge ordered the applicant ’ s pre-trial detention on 12 August 1991 on the ground that he might abscond, collude or reoffend. However, during the investigation the applicant remained at large and his whereabouts were unknown to the prosecuting authorities.

4. On 25 March 1992 the Osijek County State Attorney ’ s Office ( Županijsko državno odvjetništvo u Osijeku ) indicted the applicant in the Osijek County Court on charges of triple murder and one attempted murder.

5. On 27 May 1992 the Osijek County Court ordered that the trial be held in the applicant ’ s absence, since his whereabouts had remained unknown. On 27 June 1994 the court found the applicant guilty as charged and sentenced him to twenty years ’ imprisonment. On the same day the court issued a new order on his detention.

6. On 29 February 1996 the applicant was extradited from Australia to Croatia , where he was immediately detained, pursuant to the Osijek County Court ’ s order.

7. On 7 March 1996 the Supreme Court ( Vrhovni sud Republike Hrvatske ) ordered the applicant ’ s retrial, during which he was remanded in custody.

8. On 22 May 1997 the Supreme Court found that the General Amnesty Act ( Zakon o općem oprostu ) was applicable to the applicant ’ s case, terminated the proceedings against him and ordered his release.

9. On 3 June 1997 the applicant was released from detention.

10. On 14 March 2001 the Constitutional Court ( Ustavni sud Republike Hrvatske ), acting on a constitutional complaint lodged by one of the victims ’ relatives, quashed the Supreme Court ’ s decision of 22 May 1997 and ordered a new trial.

11. On 18 June 2001 a three-judge panel of the Osijek County Court again ordered the applicant ’ s detention. However, the applicant remained at large because his whereabouts were unknown.

12. On 15 July 2007 the applicant was again extradited from Australia to Croatia , where he was immediately detained pursuant to the Osijek County Court ’ s order.

13. On 9 October 2007 a new trial commenced in the Osijek County Court in which the applicant was accused of triple murder and one attempted murder. During the trial the applicant was remanded in custody.

14. On 7 July 2008 the Osijek County Court found the applicant guilty as charged and sentenced him to twenty years ’ imprisonment. On the same day the trial court ordered his detention pending completion of the first ‑ instance judgment.

15. On 20 October 2008 the applicant lod ged an appeal against the first ‑ instance judgment of the Osijek County Court but on 9 April 2009 the Supreme Court dismissed the appeal.

16. On 11 April 2009 a three-judge panel of the Osijek County Court extended the applicant ’ s detention for a further nine months under Article 109 § 2 of the Code of Criminal Procedure. The relevant part of the decision reads:

“The accused, Antun Gudelj , was detained ... between 29 February 1996 and 3 June 1997 and has been detained again ... since 15 July 2007.

... given that a non-final judgment had been adopted in this case, this panel has established that, under Article 109 § 2 of the Code of Criminal Procedure, the overall duration of detention, which until the adoption of the first-instance judgment could have lasted up to three years (Article 109 § 1 of the Code of Criminal Procedure), may be extended for one-quarter [of the maximum prescribed statutory limit] until the judgment becomes final. Thus the overall detention may last for three years and nine months. The overall duration of detention could be extended on condition that the three-year limit had not expired. In the present case, on 11 April 2009 the three-year limit had not yet expired, so the accused ’ s detention was lawfully extended.”

17. On 14 April 2009 the applicant lodged an appeal with the Supreme Court, arguing that the maximum period of his detention had in fact expired on 9 April 2009. This meant that the impugned decision by the Osijek County Court had been adopted with two days ’ delay and that therefore the extension of his detention had been unlawful.

18. On 29 April 2009 the Supreme Court dismissed the applicant ’ s appeal against the Osijek County Court ’ s decision to extend the applicant ’ s detention for a further nine months.

19. On 21 May 2009 the applicant lodged a further appeal with the Supreme Court against the second-instance judgment.

20. On 27 May 2009 the applicant lodged a constitutional complaint against the Supreme Court ’ s decision of 29 April 2009 to uphold the Osijek County Court ’ s decision extending his detention, reiterating that his continued detention had been unlawful.

21. On 9 December 2009 the Supreme Court, acting as the final court of appeal, dismissed the applicant ’ s appeal against the second-instance judgment, and the applicant ’ s conviction thus became final.

22. On 22 December 2010 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible on the ground that in the meantime, on 18 October 2010, the applicant had been sent to prison.

23. On 17 September 2010 the applicant lodged a further constitutional complaint against the Supreme Court ’ s judgment of 9 December 2009, challenging his conviction.

24. The proceedings before the Constitutional Court appear to be still pending.

B. Relevant domestic law

25. Section 62(1) of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu , Official Gazette no. 29/2002) reads:

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision ( pojedinačni akt ) of a State body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: ‘ constitutional right ’ ) ...”

26. The relevant provisions of the Criminal Code of the Republic of Croatia ( Krivični zakon Republike Hrvatske , Official Gazette nos. 32/1993, 38/1993, 28/1996, 30/1996) are worded as follows:

Murder

Article 34

“(1) Whoever deprives another person of his life shall be punished by imprisonment of at least five years.

(2) imprisonment of at least ten years or twenty years :

4) deprives another person of his life ... out of ruthless revenge ... ;

5) deprives of his life an official in the course of performing his duties of prevention and discovery of offences, apprehension of perpetrators of the offences, securing public peace and order, or who deprives of his life an official who is guarding a person deprived of liberty or who deprives of life another person who is performing some of those duties in the function of civil protection.”

27. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) are worded as follows:

Article 109

“(1) Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of:

(1) six months for offences carrying a statutory maximum sentence of three years ’ imprisonment;

(2) one year for offences carrying a statutory maximum sentence of five years ’ imprisonment;

(3) eighteen months for offences carrying a statutory maximum sentence of eight years ’ imprisonment;

(4) two years for offences carrying a sentence of more than eight years ’ imprisonment;

(5) three years for offences carrying a sentence of long-term imprisonment.

(2) In cases where a judgment has been adopted but has not yet entered into force, the maximum term of pre-trial detention may be extended for one-sixth of the term referred to in subparagraphs 1 to 3 of paragraph 1 of this provision until the judgment becomes final, and for a quarter of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision.

(3) Where a first-instance judgment has been quashed on appeal, following an application by the State Attorney and where important reasons exist, the Supreme Court may extend the term of detention referred to in subparagraphs 1 to 3 of paragraph 1 of this provision for another six months and the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision for another year.

(4) Following the adoption of an appellate judgment against which an appeal is allowed, detention may last until the judgment becomes final, for a maximum period of three months.

(5) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is committed to prison, but for no longer than the duration of his prison term.”

COMPLAINTS

28. The applicant complained, under Article 5 § 1 of the Convention, that his detention had been unlawful, since in the period between 9 and 11 April 2009, after his conviction by the first-instance judgment, he had been detained without any decision on his detention.

29. The applicant also complained under Article 5 § 4 of the Convention that the Constitutional Court had declined to examine his constitutional complaint concerning the lawfulness of his detention between 9 and 11 April 2009.

30. Finally, the applicant complained, invoking Articles 6, 13 and 17 of the Convention and Article 4 of Protocol No. 7, about the assessment of facts by the national courts in the criminal proceedings against him.

THE LAW

1. Lawfulness of the applicant ’ s detention in the period between 9 and 11 April 2009 under Article 5 § 1 (a) of the Convention

31. The applicant submitted that the maximum period of his detention under the relevant domestic law had expired on 9 April 2009 and that the further decision to extend his detention had been adopted with a two-day delay on 11 April 2009. He argued that his detention during those two days had therefore been unlawful, since there had been no court decision authorising it. He relied on Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;”

32. The Government submitted that the applicant had failed to address the same issues as those raised before the Court in his constitutional complaint. He had lodged his constitutional complaint as an extraordinary remedy against the decisions of the Supreme Court, although the Constitutional Court had made it clear in its case-law that it was not a court of “third instance” dealing with decisions on detention. They also argued that the applicant ’ s detention had been extended within the period of his previous detention. The Government finally stressed that the Supreme Court and the Constitutional Court had examined the decision to extend the applicant ’ s detention and had found no violation of his rights.

33. The applicant contested the Government ’ s view arguing that he had properly exhausted domestic remedies. He also considered that the domestic courts had failed to extend his detention within the time-limits of the previous detention which had been contrary to the well-established practice of the Constitutional Court .

34. The Court finds that it is not necessary to address all the Government ’ s objections, as the complaints are in any event inadmissible for the following reasons .

35. The Court firstly observes that when a court has reached a decision on a charge , even if it is only a court of first instance, the person is detained “after conviction by a competent court” within the meaning of Article 5 § 1 (a) (see Solmaz v. Turkey , no. 27561/02, §§ 24 to 26, 16 January 2007; B. v. Austria , 28 March 1990, §§ 36-39, Series A no. 175; and Kudła v. Poland [GC], no. 30210/96, § 104, 2009 ).

36. As to the present case the Court notes that on 7 July 2008, in the renewed proceedings against the applicant, the Osijek County Court had adopted a judgment convicting him of murder and attempted murder. Therefore, the ground for the applicant ’ s detention after that date was his conviction. It follows that the present case falls to be examined under sub ‑ paragraph (a) of Article 5 § 1, given that the period of detention about which the applicant has complained concerns his detention after 7 July 2008, after his conviction in the criminal proceedings against him.

37. The Court reiterates that it is well established in the Court ’ s case-law under Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful” (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008, and M. v. Germany , no. 19359/04, § 90, ECHR 2009) . Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see, among many other authorities, Erkalo v. the Netherlands , 2 September 1998, § 52, Reports of Judgments and Decisions 1998 ‑ VI ; Saadi , cited above , § 67, ECHR 2008 ; Kafkaris v. Cyprus [GC], no. 21906/04 , § 116, ECHR 2008; and Schönbrod v. Germany , no. 48038/06 , § 81, 24 November 2011 ).

38. The Court notes that in the present case it is not disputed that the applicant had been detained after conviction by a competent court on 7 July 2008 sentencing him to twenty years ’ imprisonment (see paragraph 14). It is also not disputed that his detention after the conviction was in conformity with the relevant domestic law as required under Article 5 § 1 (a) of the Convention.

39. As to the applicant ’ s complaint that the maximum period of his detention under the relevant domestic law expired on 9 April 2009 and that his detention was extended on 11 April 2009, the Court notes that the applicant has brought relevant proceedings challenging his detention and its conformity with domestic law arguing that his detention had expired on 9 April 2009. These proceedings had not resulted in any findings of unlawfulness, procedural or substantive. Namely, the national courts found that the overall duration of the applicant ’ s detention, given that he had been sentenced at first instance, could have lasted for three years and then it could have been extended for further nine months. They concluded that the applicant had been detained in two periods which had not in total exceeded the period of three years at the moment when his detention had been extended on 11 April 2009 (see paragraphs 16 and 18).

41. It follows that this complaint must be dismissed as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

2. Compliance of the Constitutional Court ’ s decision not to examine the applicant ’ s complaints concerning the lawfulness of his detention with Article 5 § 4 of the Convention

42. The applicant submitted that the Constitutional Court ’ s decision not to examine his constitutional complaint concerning the lawfulness of his detention between 9 and 11 April 2009 on merits had been incompatible with the guarantees under Article 5 § 4 of the Convention, which, in so far as relevant, reads as follows:

“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

43. The Government contested this view, reiterating their arguments concerning exhaustion of domestic remedies and pointing out that the applicant ’ s detention had been lawfully ordered and extended by the competent court.

44. The Court reiterates that in principle when the decision depriving a person of his or her liberty is made by a court at the close of judicial proceedings, the supervision required by Article 5 § 4 is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after “conviction by a competent court” within the meaning of Article 5 § 1 (a) of the Convention (see De Wilde , Ooms and Versyp v. Belgium , 18 June 1971, § 76, Series A no. 12). However, when new facts affecting the lawfulness of a deprivation of liberty come to light, Article 5 § 4 comes back into play (see Stoichkov v. Bulgaria , no. 9808/02, § 65, 24 March 2005).

45. The Court considers that in the present case, in view of the finding in respect of the complaint under Article 5 § 1 (a) of the Convention, there are no new facts affecting the lawfulness of the deprivation of liberty at issue that would bring Article 5 § 4 of the Convention back into play.

46. It follows that this complaint must be dismissed as manifestly ill ‑ founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

3. Other alleged violations of the Convention

47. The applicant further complained, invoking Articles 6, 13 and 17 of the Convention and Article 4 of Protocol No. 7, about the assessment of facts in the criminal proceedings against him and that he had been tried twice for the same acts.

48. The Court notes, however, that the proceedings before the Constitutional Court upon the applicant ’ s constitutional complaint are still pending and that therefore these complaints are premature .

49. It follows that these complaints must be rej ected under Article 35 §§ 1 and 4 of the Convention on the basis of non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Anatoly Kovler Registrar President