FIRST SECTION

Application no. 8097/12 Heidrun Lizzi SCHWENK MUEHLBAUER against Croatia lodged on 30 January 2012

STATEMENT OF FACTS

The applicant, Ms Heidrun Lizzi Schwenk Muehlbauer , is a German national, who was born in 1940 and lives in Bad Wörishofen . Her application was lodged on 30 January 2012. She was represented before the Court by Mr Z. Zrilić , a lawyer practising in Zadar .

A. The circumstances of the case

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

On 20 January 2010 a European Arrest Warrant was issued in respect of the applicant concerning an extradition request for execution of a judgment of the Santa Cruz County Court , Tenerife , Spain , sentencing the applicant to six months ’ imprisonment for property crime.

Pursuant to the European Arrest Warrant, the applicant was arrested on 6 June 2011 in Zadar , Croatia , where she was staying as a tourist.

On the same day she was brought before an investigating judge of the Zadar County Court ( Županijski sud u Zadru ).

During the questioning before the investigating judge, the applicant consented to be extradited to Spain in a summary extradition procedure.

On the same day the investigating judge remanded the applicant in detention for forty days. In his decision, the investigating judge noted:

“The arrestee has been informed about the arrest warrant and all her rights in the further proceedings. After that she was questioned pursuant to Section 52 of the Act on International Legal Assistance in Criminal Matters, and she stated that she wanted to be extradited to the requesting state, Spain , under the summary extradition procedure, ..., although she was aware that such consent could not be withdrawn.”

On 5 July 2011 a three-judge panel of the Zadar County Court found that all grounds for the applicant ’ s extradition to Spain had been met. This decision became final on 12 July 2011.

On 8 and 9 August 2011 the applicant ’ s lawyer complained to Zadar Prison ( Zatvor u Zadru ), the Zadar County Court, the Ministry of Justice ( Ministarstvo pravosuđa ) and the Head Office of the Prison Administration of the Ministry of Justice ( Ministarstvo pravosuđa , Uprava za zatvorski sustav ) that the applicant ’ s detention, ordered by the investigating judge ’ s decision of 6 June 2011, had expired on 17 July 2011 and that therefore the applicant had been detained without any legal ground.

On 17 August 2011 a three judge panel of the Zadar County Court confirmed the investigating judge ’ s decision of 6 June 2011 concerning the grounds for the applicant ’ s detention and found that, under the Act on International Legal Assistance in Criminal Matters, the applicant could have been detained until 12 September 2011. The relevant part of the decision reads:

“A three-judge panel of the Zadar County Court found on 5 July 2011 ... that the grounds for extradition of the convict to the Kingdom of Spain for execution of a prison sentence had been met. This is also because she, during her questioning before the investigating judge, consented to be extradited in a summary extradition procedure under Section 54 §§ 1 and 2 of the Act on International Legal Assistance in Criminal Matters, and pursuant to § 3 [of that Act] she cannot withdraw such a consent. Under Section 54 § 4 of the said Act, when a person to be extradited consented to be extradited to the requesting State in a summary extradition procedure, the requesting State is not obliged to submit any further extradition request.

The decision [of 5 July 2011] became final on 12 July 2011.

Since the extradition detention remains in force during the entire extradition proceedings until the expiry of the deadline for the execution of the decision on extradition, and since the convict – the person to be extradited consented to extradition, she can be remanded in detention until 12 September 2011, when two months will expire from the moment when the decision on extradition became final and enforceable.”

On 19 August 2011 the applicant lodged an appeal against the above decision with the Zadar County Court arguing that she had been kept in detention without any ground. Under the relevant domestic law the appeal had to be lodged with the Zadar County Court but it was in competence of the Supreme Court ( Vrhovni sud Republike Hrvatske ).

On the same day, Interpol informed the Zadar County Court that the applicant was to be extradited on 28 August 2011.

The Zadar County Court forwarded the applicant ’ s appeal to the Supreme Court on 25 August 2011.

On 31 August 2011 the Supreme Court dismissed the applicant ’ s appeal on the ground that at that moment the applicant had already been extradited. The relevant part of the decision reads:

“According to the letter of NCB Interpol Zagreb ... and an inquiry made in Zadar Prison, the person to be extradited has in the meantime, after the decision of 28 August 2011 had been adopted, been extradited to the Kingdom of Spain . Therefore, since these extradition proceedings have been concluded and the person to be extradited has no longer been detained, the appeal against the continuous detention appears ill-founded.”

On 16 September 2011 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) against the above decision of the Supreme Court.

On 29 September 2011 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible on the ground that the applicant had no longer been detained. The relevant part of the decision reads:

“The procedural requirements in the detention cases are that the defendant is in detention and that, at the moment when the Constitutional Court decides, the impugned decision on detention is in force.

The Supreme Court found on 31 August 2011 that the applicant had been extradited to the Kingdom of Spain on 28 August 2011 ...

... therefore the Constitutional Court Considers that already at the moment when the constitutional complaint was lodged, the [procedural] requirements for the Constitutional Court to decide on the merits of the case did not exist.”

B. Relevant domestic law

The relevant parts of the Act on International Legal Assistance in Criminal Matters ( Zakon o međunarodnoj pravnoj pomoći u kaznenim stvarima , Official Gazette, no. 178/2004) read as follows:

Section 46

“The person whose extradition was sought can be arrested based on a request made by a foreign judicial authority or, under the condition of reciprocity, based on an international arrest warrant.”

Release form detention Section 48

“(1) The investigating judge shall order that the person be released from detention if the grounds for detention cease to exist or if the extradition request is not submitted within the time period ordered [by the investigating judge] which cannot be longer than forty days starting from the day when the person was detained. ... ‘‘

Extension of the detention Section 49

“(1) When the extradition request was submitted, the person shall remain in detention pending the entire extradition procedure and within the time-limit under Section 59 of this Act.

... ‘‘

Summary extradition procedure Section 54

“(1) The person to be extradited can consent to be extradited to the requesting State in the summary extradition procedure ..., after which the competent court shall order his extradition unless provided otherwise.

...

(3) The consent ... under § 1 of this Section cannot be revoked.

(4) The competent court shall inform the Ministry of Justice about the consent without any delay. The Ministry shall inform the requesting State within the period of ten days starting from the day when the person to be extradited was detained and, in this case, [the requesting state] is not obliged to submit the extradition request. ”

Enforceability of the decision on extradition Section 58

“The decision on extradition is enforceable:

...

2. in the case under Section 54 of this Act, when the person to be extradited expressly consented to be extradited.”

Execution of extradition Section 59

“...

(2) The person to be extradited must be surrendered within the period of two moths starting from the day of the enforceability of the decision on extradition.

...”

COMPLAINTS

The applicant complains, under Article 5 § 1(f) of the Convention about the lawfulness of her detention pending extradition after 17 July 2011.

The applicant further complains, under Articles 5 § 4 and 13 of the Convention, that she didn ’ t have a remedy for speedy and effective review of the lawfulness of her detention.

The applicant also complains, under Article 5 § 5 of the Convention, that she is deprived of the possibility to obtain damages for her allegedly unlawful detention.

QUESTIONS TO THE PARTIES

1. Wa s the applicant deprived of her liberty in breach of Article 5 § 1 (f) of the Convention?

2. Was the procedure by which the applicant sought to challenge the lawfuln ess of her detention in conformity with Article 5 § 4 of the Convention?

3. Did the applicant have an effective and enforceabl e right to compensation for her unlawful detention in alleged contravention of Article 5 §§ 1 and 4 , as required by Article 5 § 5 of the Convention?