FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21139/05 by Svetozar KARAN against Croatia

The European Court of Human Rights ( First Section), sitting on 7 December 2006 as a Chamber composed of:

Mr C.L. Rozakis , President ,

Mr L. Loucaides , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mr D. Spielmann , Mr S.E. Jebens , judges , and Mr S . Nielsen , Section Registrar ,

Having regard to the above application lodged on 29 April 2005 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Svetozar Karan , is a Croatian national of Serbian origin who was born in 1950 and is presently detained in the Karlovac County Prison ( Okružni pritvor u Karlovcu ) . He is represented before the Court by Mr T. Vuki čević , a lawyer practising in Split .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 30 October 2002 the applicant was arrested and remanded in custody.

The very next day the Gospić County Court ( Županijski sud u Gospiću ) opened a criminal investigation against the applicant on suspicion of having committed war crimes against prisoners of war.

The Gospić County State Attorney ’ s Office ( Županijsko državno odvjetništvo u Gospiću ) filed a bill of indictment with the Gospić County Court against the applicant on 27 February 2003 charging him with two counts of war crimes, an offence under Section 122 of the Croatian Criminal Code. The applicant was accused of inflicting exceptionally brutal treatment on prisoners of war on two separate occasions, each lasting approximately one month.

By a decision of 19 May 2003 the Gospić County Court approved the applicant ’ s further pre-trial detention.

On 30 July 2003 the Gospić County Court found the applicant guilty of both counts of war crimes and sentenced him to thirteen years ’ imprisonment. At the same time the applicant ’ s further detention was ordered.

The applicant appealed both against his conviction and against the decision extending his detention.

On 29 January 2004 the Supreme Court quashed the first instance judgment of 30 July 2003 and at the same time extended the applicant ’ s pre-trial detention.

On 4 March 2004 the State Attorney filed an application with the Supreme Court that the case be transferred to another court.

The Supreme Court granted the State Attorney ’ s application on 9 March 2004 and transferred the case to the Karlovac County Court ( Županijski sud u Karlovcu ).

After the case was transferred to the Karlovac County Court, that court extended the applicant ’ s pre-trial detention on 9 April 2004. The applicant ’ s appeal was dismissed by the Supreme Court on 28 April 2004.

The Karlovac County Court again approved the applicant ’ s further pre-trial detention on 27 August and 17 November 2004. An appeal by the applicant against the latter decision was dismissed by the Supreme Court on an unspecified date.

The courts repeatedly noted that the applicant had been charged with very serious offences carrying a sentence of over twelve years ’ imprisonment. They noted further that the manner of the applicant ’ s criminal activity exceeded the basic features of the offence in question ( osnovna obilje ž ja kaznenog djela ), both in scope and in the number of victims affected and the gravity of the injuries inflicted on them.

On 17 December 2004 the Karlovac County Court dismissed an application for release filed by the applicant on a date unspecified. It stated inter alia :

“... the facts set out in the bill of indictment reveal that the offences with which the applicant was charged significantly exceeded the basic features of the crime in question because at the time when the offences were committed he acted brutally and ruthlessly, without refraining from particularly harsh and severe impairment of the victims ’ health. Therefore, in the opinion of this panel, both the extent of the crime and the number of impairments of the victims ’ physical integrity represent the exceptionally grave circumstances of the offence ...”

On 17 January 2005 the Karlovac County Court once again approved the applicant ’ s further pre-trial detention.

The applicant appealed against the decision and on 2 February 2005 the Supreme Court ( Vrhovni sud Republike Hrvatske ) dismissed the appeal stating that, having regard to the particularly brutal and merciless conduct of the applicant, which had caused the victims grave bodily injuries and grave psychological consequences and also rendered some of them disabled, the detention of the applicant was necessary.

The relevant part of the Supreme Court ’ s decision is worded as follows:

“...the bill of indictment charged the applicant with the offence of war crimes against prisoners of war under Section 122 of the Basic Criminal Code of the Republic of Croatia, and having regard expressly to the brutal and ruthless conduct of the perpetrator at the time when the offences were committed, which exceeded the basic features of the crime in question, and especially since the consequences consisted of significant impairment of the victims ’ physical integrity ...”

The applicant filed a constitutional complaint against the Supreme Court ’ s decision complaining about his detention and also arguing that the presumption of his innocence had been violated.

On 31 March 2005 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant ’ s complaint, finding that the lower courts had correctly applied the relevant provisions of the Criminal Procedure Act ( Zakon o kaznenom postupku ).

On 1 April 2005 the Karlovac County Court approved the applicant ’ s further pre-trial detention, reiterating its reasoning in the previous decisions on the matter.

On 30 June 2005 the Karlovac County Court also found the applicant guilty of two counts of war crimes against prisoners of war and reduced his sentence to seven years ’ imprisonment.

On 26 October 2005 the Karlovac County Court once more approved the applicant ’ s further detention. An appeal by th e applicant was dismissed on 14 November 2005 by the Supreme Court.

On 7 February 2006 the Supreme Court upheld the judgment of 30 June 2005 and the applicant ’ s conviction thus became final.

On an unspecified date in March 2006 the applicant was transferred to the Lepoglava State Prison to serve the remainder of his prison term.

B. Relevant domestic law

1. The relevant provisions of the Criminal Procedure Act (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide as follows:

8. General Provisions on Detention

Section 104

(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure.

(2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist.

(3) When deciding on detention, in particular its duration, the court shall take into consideration the proportionality between the gravity of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of detention.

(4) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review ex officio whether the grounds and legal conditions for detention have ceased to exist, in which case detention shall immediately be lifted.

9. Grounds for Ordering Detention

Section 105

(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention:

...

4. if the charges involved relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years ’ imprisonment, when detention is justified by the modus operandi or other specially grave circumstances of the offence.

The relevant provisions regulating the duration of detention provide as follows:

Section 110 provides, inter alia , that the detention ordered by an investigation judge may last one month and may be extended, for justified reasons, by a three-member judicial panel for two more months and after that for another three months. However, the maximum duration of detention during investigation shall not exceed six months.

Section 111 provides, inter alia , that following indictment detention may last until the judgment becomes final and after that until the decision on serving the prison sentence becomes final. In that period a judicial panel of three members shall assess every two months whether the conditions for detention still exist.

Section 114

(1) Until the adoption of the first instance judgment detention on remand may last for a maximum of:

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

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

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

4. two years for offences carrying a sentence of more than eight years ’ imprisonment.

(2) In cases where a judgment has been adopted but has not yet entered into force, the maximum term of detention on remand 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 one fourth of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision.

(3) Where the 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 the second instance 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.

2. Section 122 of the Basic Criminal Code ( Osnovni krivični zakon , Official Gazette no. 31/1993) reads as follows:

War Crimes against Prisoners of War

Whoever, in violation of the rules of international law, orders the killing, torture or inhuman treatment of prisoners of war, including biological, medical or other scientific experiments, the removal of tissue or organs for transplantation, or the causing of great suffering or injury to their physical integrity or health; or compels a prisoner of war to serve in the forces of hostile power, or deprives a prisoner of war of the right to a fair trail; or commits any of the foregoing acts shall be sentenced to not less than five years ’ imprisonment or to twenty years ’ imprisonment.

COMPLAINTS

1. The applicant complain ed firstly under Article 5 of the Convention that the reasons relied on by the domestic courts for extending his detention were not relevant and sufficient throughout the detention.

2 . The applicant complained further under Article 6 § 2 of the Convention that the domestic courts had violated the presumption of innocence because they had repeatedly stated that his particularly brutal conduct justified his prolonged detention on remand.

3. The applicant also invoked Articles 13 and 14 of the Convention.

THE LAW

1. The applicant firstly complained that the gravity of the offences he had been charged with could not be regarded as relevant and sufficient reasons for the domestic courts to repeatedly extend his detention. He relied on Article 5 of the Convention, the relevant part of which reads as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complained that the domestic courts had violated the presumption of his innocence because they had repeatedly stated that his particularly brutal conduct had justified his prolonged detention on remand. He relied on Article 6 § 2 of the Convention which reads as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court reiterates that the presumption of innocence under Artic le 6 § 2 will be violated if a judicial decision or, indeed, a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before his guilt has been proved according to law. It suffices, in the absence of a formal finding, that there is some reasoning suggesting that the court or the official in question regards the accused as guilty, while a premature expression by the tribunal itself of such an opinion will inevitably run foul of the said presumption (see, among other authorities, Deweer v. Belgium , judgment of 27 February 1980, Series A no. 35, p. 30, § 56; Minelli v. Switzerland , judgment of 25 March 1983, Series A no. 62, §§ 27, 30 and 37; Allenet de Ribemont v. France , judgment of 10 February 1995, Series A no. 308, p. 16, §§ 35-36; and Karakaş and Yeşilırmak v. Turkey , no. 43925/985, § 49, 28 June 2005).

Article 6 § 2 governs criminal proceedings in their entirety, “irrespective of the outcome of the prosecution” (see Minelli v. Switzerland , cited above, § 30). However, once an accused is found guilty, in principle, it ceases to apply in respect of any allegations made within the subsequent sentencing procedure (see Engel and Others v. the Netherlands , judgment of 8 June 1976, Series A no. 22 and Matijašević v. Serbia , no. 23037/04, 19 September 2006).

As to the present case, the Court notes that the domestic courts justified the applicant ’ s pre-trial detention by the gravity of the offences and the manner in which they were committed. They did not, however, treat those circumstances as established facts but only as allegations. They stressed that the charges brought against the applicant alleged that he had committed the offences in question in a particularly brutal and merciless manner.

In their wording the domestic courts relied on the bill of indictment stating that there was a justified suspicion that the applicant actually had committed the offences in question. Thus they solely relied on the charges brought against him. Thus, the reasoning of the courts ’ decisions concerning the applicant ’ s detention on remand did not amount to finding the applicant guilty of the charges brought against him in violation of the presumption of innocence under Article 6 § 2 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

3. The applicant also invoked Articles 13 and 14 of the Convention in conjunction with his Article 5 complaint. The relevant provisions read as follows:

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court considers that th is part of the application does not disclose any appearance of a violation of any of the above Articles of the Convention . It follows that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint that the reasons for extending his detention relied on by the domestic courts were not relevant and sufficient throughout the detention ;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos R OZAKIS Registrar President