Communicated on 28 May 2014

FIRST SECTION

Application no. 20550/12 Miroslav HRÅ UM against Croatia lodged on 28 February 2012

STATEMENT OF FACTS

The applicant, Mr Miroslav Hršum , is a national of Bosnia and Herzegovina of Serbian origin. He was born in 1962 and is currently serving a prison sentence in the Gospić Prison. He is represented before the Court by Mr Ž. Lubina , an advocate practising in Split.

A. The circumstances of the case

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

1. The applicant ’ s arrest

On 9 May 2008 around 8 p.m. the applicant was abducted from the flat he was renting in Split by masked individuals who tied him up and put him into the boot of their car. They then drove him into a nearby forest where they stripped him naked, brutally beaten, tortured and intimidated him until the morning the next day. In particular, the applicant claims that those individuals deliberately fired shots next to his head and forced him to dig a grave for himself. They also verbally abused him by mentioning the names of his two children and saying that they had killed them. They also insulted him on the basis of his ethnic origin. As a result of the beating the applicant claims that his feet, ribs and front teeth were broken and that he also suffered injuries to his left testicle.

After the applicant, faced with death threats, agreed to confess and sign anything the police would ask him to confess or sign, the next morning his abductors put him again in the boot of their car and drove him to a police station in Split where they handed him over to the police.

At the police station a police inspector, after hitting him first, asked him why he had committed an armed robbery. The inspector then dictated the applicant ’ s confession to the record and asked him to sign it. The applicant initially refused to do so but eventually signed the record after being hit and threatened that he would again be taken to the forest. The applicant claims that a state attorney was present during the dictation whereas his officially appointed defence counsel demonstratively stood up in the middle of it and left the room. After being called back by the state attorney to sign the record, the applicant ’ s defence counsel did so while allegedly warning the inspector and the state attorney that they would not get away with it before the court.

After the applicant ’ s counsel left the police station, at 2 p.m. the inspector drafted the arrest report and asked the applicant to sign it. The applicant initially refused to do so because the report stated that he had been arrested on the same day at 3 p.m. However, after being hit again, the applicant signed the report.

The applicant was then taken to the cell in the basement of the police station and detained there.

On 12 May 2008 at 3 p.m. the applicant was brought before the investigating judge of the Split County Court ( Županijski sud u Splitu ). His counsel was present. According to the applicant, he decided to remain silent as he was neither physically or mentally able to give his statement. Allegedly, he merely retracted his statement given before the police and indicated that it was obtained under duress. The investigation judge issued a decision whereby it opened the investigation against the applicant and ordered his detention pending trial.

On 21 September 2008 the applicant wrote a letter to the investigating judge in which he described the circumstances of his arrest. In particular, the applicant emphasised that he had been beaten by the police and that his confession was obtained under duress. It would appear that the applicant did not enclose his medical records to his letter even though he mentioned in the letter that medical certificates confirming his injuries existed. The applicant invited the investigating judge to assess, in view of the facts presented, whether any criminal offence had been committed against him. He received no reply.

2. Search of the applicant ’ s home

Meanwhile, on 12 May 2008 the same inspector together with two other police officers carried the applicant, who was due to his injuries unable to walk, to a police car and drove him to the flat in Split he was renting. When they arrived the applicant noticed that the door of the flat was unlocked and the landlord and two other individuals were sitting in the living room. Those two persons left immediately and the landlord invited certain Mrs Ž.A. to make coffee for the police officers and, together with him, formally witness the search. The applicant claims that neither she nor the landlord, being the witnesses to the search, could see the police officers when they were searching the bedroom and the children ’ s room in the flat. The same was true for the applicant himself who during the search remained lying on the floor in the living room as he was unable to stand up owing to his injuries.

When the inspector asked him to sign the record of the search the applicant refused to do so and requested that his counsel be present. The inspector then threatened him and offended him on the basis of his ethnic origin whereupon the applicant signed the record, which he was not even allowed to read beforehand.

3. Criminal proceedings against the applicant

Meanwhile, on 21 October 2008 the Split County State Attorney ’ s Office ( Županijsko državno odvjetništvo u Splitu ) indicted the applicant and nine other individuals before the Split County Court on two counts of armed robbery, a criminal offence defined in Article 218 of the Criminal Code.

During the proceedings the court dismissed the applicant ’ s request to take evidence by hearing the individuals who arrested him as irrelevant in view of the established facts and the existing evidence. It also noted that the report of the applicant ’ s arrest and apprehension suggested that he had been arrested on 10 May 2008 at 3. p.m. Consequently, as it had been clear when had the applicant been deprived of liberty, there was no need to hear those witnesses.

The court also dismissed the applicant ’ s requests to exclude the record of his examination before the police and the record of the search of his home from the case-file as unfounded.

At the hearing held on 13 January 2010 the applicant retracted his statement given before the police because it had been obtained under duress. He stated that he had been arrested, in fact kidnapped, on 9 May 2008 around 9 p.m. by hooded individuals who had beaten him and insulted him on the basis of his ethnic origin. In particular, they had beaten him on his feet by truncheons, broken three of his ribs and injured his testicles. Only afterwards they had asked him about an armed robbery of a post office in Split, for which he was accused. Then they had handed him over to the police where he had been maltreated again. The police started preparing the record of his examination before his counsel had arrived. Soon after his arrival, his counsel left in the middle of the preparation of the record thereby protesting against the manner it had been done. When his counsel and the state attorney who had also been present had left, he had been forced to sign the arrest warrant stating that he had been arrested on 10 May 2008 at 3 p.m. After he had been detained he had been examined by a doctor who had established the injuries.

At the same hearing the applicant also testified about the circumstances surrounding the search of his home. In particular, he stated that had not been able to walk, that in the flat he had found the landlord and two unknown individuals, that Mrs Ž.A. had arrived ten minutes after the commencement of the search to serve the police officers with a coffee, and that he had been slapped two to three times when he had refused to sign the record of the search. He further stated that he had asked that the search be performed in the presence of his counsel, but that the police refused to stop the search until his arrival.

By a judgment of 3 February 2010 the Split County Court found the applicant guilty as charged and sentenced him to ten years ’ imprisonment.

On 15 September 2010 the Supreme Court ( Vrhovni sud Republike Hrvatske ) dismissed the applicant ’ s appeal and upheld the first-instance judgment.

On 29 November 2010 the applicant lodged a constitutional complaint against the second-instance judgment.

It would appear that the Constitutional Court ( Ustavni sud Republike Hrvatske ) has not yet decided on the applicant ’ s constitutional complaint.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention about: (a) the ill-treatment during his arrest.

2. He also complains under Article 6 §§ 1 and 2 of the Convention that the criminal proceedings resulting in his conviction were unfair. In particular, he complains that: (a) his conviction was based on illegally obtained evidence, that is, on his confession before which he was not informed of his rights and which was obtained under duress, as well as on the evidence collected during the unlawful search of his flat, (b) he was not informed promptly, in Serbian language, of the nature and cause of the accusation against him, (c) at the trial he was not sitting next to his counsel and thus was unable to consult with him, and (d) the length of the proceedings before the Constitutional Court following his constitutional complaint has been excessive.

3. The applicant also complains, without relying on any Article of the Convention, that the search of his home was unlawful because: (a) it commenced before the two witnesses, whom the law requires to be present during a search, arrived, and (b) his counsel was not present because he was not informed of it.

QUESTIONS TO THE PARTIES

1. ( a ) Was the applicant been subjected to torture, inhuman or degrading treatment during his arrest, in breach of Article 3 of the Convention?

(b) Did the State authorities in the present case comply with their procedural obligation under Article 3 of the Convention to conduct an effective official investigation into allegations of the applicant ’ s ill-treatment?

2. ( a ) Has the length of the proceedings before the Constitutional Court been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

(b) Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant ’ s right to a fair trial, including his right not to incriminate himself, violated in the criminal proceedings against him by the admission and use of evidence obtained as a result of the confession extracted from him in breach of Article 3 (see Jalloh v. Germany [GC], no. 54810/00, ECHR 2006 ‑ IX; and Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010)?

3. Has there been a violation of the applicant ’ s right to respect for his home, contrary to Article 8 of the Convention, on account of the search of his home undertaken on 12 May 2008 and the subsequent use of evidence thus obtained in the criminal proceedings against him?