FIRST SECTION

Application no. 23530/13 Drago BOÅ NJAK against Croatia lodged on 29 March 2013

STATEMENT OF FACTS

The applicant, Mr Drago Bošnjak , is a Croatian national, who was born in 1958 and is detained in Osijek Prison. He is represented before the Court by Mr D. Rešetar , a lawyer practising in Osijek.

A. The circumstances of the case

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

1. Background to the case

On 20 June 2011 the Sisak-Moslavina Police Department ( Policijska Uprava Sisačko-Moslavačka ) lodged a criminal complaint with the Osijek County State Attorney ’ s Office ( Županijsko državno odvjetništvo u Osijeku ) against the applicant and two other suspects, on suspicion that, in 1991, they had committed war crimes against the civilian population of Serbian origin in the Sisak area. On the same day the applicant was arrested. He has been detained ever since.

On an unspecified date the investigation judge of the Osijek County Court ( istražni sudac Županijskog suda u Osijeku ) heard evidence from the applicant. The applicant denied the charges. The investigation judge decided to open the investigation against the applicant and two other suspects in connection with the above-mentioned allegations.

2. Criminal trial against the applicant

On 16 December 2011 the applicant and another defendant were indicted before the Osijek County Court for war crimes against civilian population under Article 120 and 122 of the Croatian Criminal Code. The applicant was accused of organising and leading a group of members of the special police unit “V.” of the Sisak Police Department ( specijalna jedinica policije “V.” Policijske uprave Sisak ) which had allegedly carried out unauthorized arrests, torture and killings of civilians of Serbian origin in Sisak in the second part of August 1991. The indict ment became final on 27 January 2012.

At the hearing of 21 May 2012 the County Court accepted a request by the State Attorney ’ s Office to hear evidence from the witnesses and victims named in the indictment and dismissed the applicant ’ s and the other defendant ’ s request for release.

At the hearing of 11 June 2012 the County Court heard evidence from three witnesses, on 12 June 2012 three witnesses and on 13 June 2012 one witness. In addition, the County Court accepted requests by both the State Attorney ’ s Office and the defence counsels to hear evidence from a large number of witnesses.

At the hearing of 2 July 2012 the County Court heard evidence from four witnesses, on 3 July 2012 three witnesses, on 4 July 2012 four witnesses, on 9 July 2012 three witnesses, on 10 July 201 2 five witnesses and on 11 July 2012 four witnesses.

At the hearing of 4 September 2012 the County Court heard evidence from five witnesses and on 5 September 2012 six witnesses, when it also dismissed the applicant ’ s request for release.

At the hearing of 17 September 2012 the County Court heard evidence from seven witnesses, 18 September 20 12 four witnesses, 19 September 2012 three witnesses, 9 October 2012 four witnesses, 10 October 2012 two witnesses, 15 October 2012 six witnesses, 16 October 2012 five witnesses and 17 October 2012 one witness, when it also dismissed the applicant ’ s request for release.

At the hearing of 5 November 2012 the County Court heard evidence from three witnesses, 7 November 2012 two witnesses, 19 November 2012 two witnesses, 20 November 2012 two witnesses, 21 November 2012 three witnesses, 11 December 2012 one witness and 12 December 2012 two witnesses.

At the hearing of 4 February 2013 the County Court examined the photographs from the crime scene and decided to hear three witnesses after the hearing, since the hearing was adjourned due to the sickness of the other defendant.

At the hearing of 5 February 2013 the County Court heard evidence from six witnesses, 18 February 2013 two witnesses and 19 February 2013 one witness.

The hearing of 20 February 2013 was adjourned due to the sickness of the other defendant. One witness was heard after the hearing.

At the hearing of 18 March 2013 the County Court heard medical expert concerning the other defendant ’ s health and evidence from five witnesses.

At the hearing of 19 March 2013 the County Court heard evidence from four witnesses, 20 March 2013 seven witnesses and 29 April 2013 six witnesses.

The criminal proceedings are still pending.

3. Decisions concerning the applicant ’ s detention

On 24 June 2011 the investigation judge of the Osijek County Court remanded the applicant in custody for one month on grounds of the danger of suborning witnesses and the seriousness of the offences allegedly committed by the applicant.

On 19 July 2011 the investigation judge extended the applicant ’ s detention for a further two months on the same grounds as before.

On 19 September 2011 the investigation judge extended the applicant ’ s detention for a further three months on the same grounds as before. The relevant part of the decision reads:

“The circumstances causing the detention of the accused and its extension have not changed ... there is still a possibility of suborning witnesses, namely the officers of the Sisak Police Department ... and two other witnesses ...

During the investigation, hearing evidence from two hundred thirty two witnesses had been requested. So far, sixty one witnesses gave evidence. According to the case file, the above mentioned witnesses were threatened not to speak about the subject matter of the investigation ...

The defendant is accused of being in charge of a group which had carried out unlawful arrests, brutal torture and murders of the entire family V. and part of the family T. In the given case, the unlawful acts towards civilians were committed without any reason, motivated only by revenge and retaliation which included capturing, brutal torture and murder. All members of V. family had been tortured, killed in O. and thrown in the river S., where their bodies were eventually found. From their injuries it was evident that the victims had suffered greatly before they had been killed. The members of T. family were treated in the same manner ...

All of these circumstances constitute particularly grave circumstances of committing a war crime against civilian population ...”

On 19 December 2011 a three-judge panel of the Osijek County Court extended the applicant ’ s detention solely on account of the gravity of offences. The relevant part of the decision reads:

“The indictment describes the way the defendants were treating their victims: physical and mental torture of the captured civilians, so they had been hit until losing consciousness, beatings with such intensity to cause bodily harm, arbitrary arrests and beatings, shooting and shelling family houses, locking civilians in basements without windows or light, taking civilians to unknown locations and killing them with gunshots, hard or sharp objects, and killings of the entire V. and a part of T. family out of revenge and ethnic discrimination ...

The factual basis of the criminal offence shows extreme cruelty and brutality against a large number of victims. They represent an offence committed under exceptionally grave circumstances. Therefore, the detention is necessary under Article 102 § 1(4) of the Code of Criminal Procedure.”

On 9 March 2012 the three-judge panel of the Osijek County Court extended the applicant ’ s detention on the same ground (gravity of offences). The County Court reached the same dec ision on 4 June 2012, 27 August 2012 and 21 November 2012.

On 7 December 2012 the Supreme Court ( Vrhovni sud Republike Hrvatske ), acting on the applicant ’ s appeal, upheld the first-instance decision on detention of 21 November 2012. The relevant part of the decision reads:

“... the finding of the first-instance court that the ground for further detention of the defendant Drago Bošnjak under Article 102 paragraph 1(4) of the Code of Criminal Procedure still applies is correct.

The final indictment shows a relevant degree of reasonable suspicion that the defendant committed the criminal offence under Article 120 paragraph 1 of the Criminal Code, by which a general statutory condition under Article 102 paragraph 1 of the Code of Criminal Procedure has been fulfilled.

There is a reasonable suspicion against the defendant that, in the second part of August 1991, during the defence of Sisak and Banovina region from armed attacks of paramilitary formations of part of the local Serbian population together with the Yugoslav National Army, as a member of the Special Police Unit “V.” of the Sisak Police Department, with several unknown members of that unit, had organized and taken charge of a group which had executed unlawful arrests, torture and killings of Serbs, resulting in murders of five members of family V. and N.T., while his sons Z. and B. had been taken to an improvised concentration camp where they had been beaten, after which they had disappeared.

Contrary to the arguments presented in the appeal, the above-described behaviour of the accused and in particular the intensity and number of impugned acts and the length of those actions show an exceptionally high degree of brutality and ruthlessness, and, in view of this second-instance court represent an offence committed under particularly grave circumstances which surpasses by far the usual manner of committing such crimes and which necessitates the defendants ’ remaining in custody under Article 102 paragraph 1(4) of the Code of Criminal Procedure.

The remaining appellate arguments contain the assessment of evidence and the analysis of the hearing and are not decisive for the decision on detention. They are a subject of discussion before the first-instance court. In addition, the detention of the accused Drago Bošnjak does not raise an issue under the principle of proportionality, with regards to the gravity of offence, the sentence which could be expected and the necessity of detention.”

On 31 January 2013 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant ’ s constitutional complaint against the Supreme Court ’ s decision. The relevant part of the decision reads:

“Having in mind all the circumstances of the present case enumerated in the decisions of the ordinary courts, the fact that reasonable suspicion that the applicant (in detention since 20 June 2011) “committed an offence under Article 120 paragraph 1 of the Criminal Code by which a general statutory condition under Article 102 paragraph 1 of the Code of Criminal Procedure” has been satisfied, and “in particular the intensity and number of impugned acts”, the Constitutional Court finds that, notwithstanding the presumption of innocence of the applicant (and nineteen months of detention) the compelling public interest overweigh the right to liberty of the accused.

Therefore, the Constitutional Court finds the detention “with regards to the gravity of offence, the sentence which could be expected” entirely proportionate to the legitimate aim pursued, and the impugned decision not limiting the rights or freedoms of the applicant contrary to Article 16 paragraph 2 of the Constitution.”

The Osijek County Court extended the applicant ’ s detention on the grounds of the gravity of offences on 5 February 2013 and 26 April 2013.

B. Relevant domestic law

The relevant part of the Article 102 of the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006) reads as follows:

Article 102

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

...

2. if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might suborn witnesses, or where there is a risk of collusion;

...

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 particularly serious circumstances of the offence;

...”

The relevant part of Article 120 of the Criminal Code ( Osnovni krivični zakon Republike Hrvatske , Official Gazette no. 31/1993) reads as follows:

War Crimes against the Civilian Population

“Whoever, in violation of the rules of international law during war, armed conflict or occupation, orders: ... the killing, torture or inhuman treatment of civilians; ... the infliction of grave suffering on or injuries to the bodily integrity or health of civilians; ... measures of fear and terror against civilians or the taking of hostages, ... illegal arrests ... shall be sentenced to not less than five years ’ imprisonment or to twenty years ’ imprisonment.

...”

COMPLAINT

The applicant complains under Article 5 of the Convention about the length of his pre-trial detention.

QUESTION TO THE PARTIES

Is the length of the applicant ’ s detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

The Government are requested to submit two copies of the entire criminal case file in the applicant ’ s case.