Information Note on the Court’s case-law 209

July 2017

Oravec v. Croatia - 51249/11

Judgment 11.7.2017 [Section II]

Article 5

Article 5-4

Review of lawfulness of detention

Failure to ensure equality of arms in successful prosecution appeal against applicant’s release from pre-trial detention: Article 5 § 4 applicable; violation

Facts – In April 2011 the applicant was arrested and detained on suspicion of drug-tr afficking. He was subsequently released by order of the investigating judge. That decision was quashed following an appeal by the prosecution and on 31 May 2011 the judge re-examined the case and confirmed his previous decision. The prosecution lodged an a ppeal which was not communicated to the applicant or his counsel. On 10 June 2011 a three-judge panel, held a closed session in the parties’ absence. They reversed the investigating judge’s decision and ordered the applicant’s pre-trial detention. On 14 Ju ne 2011 the applicant was again placed in pre-trial detention. His appeals to the Supreme Court and Constitutional Court were unsuccessful.

Before the European Court, the applicant complained, inter alia , that the conduct of the appeal proceedings had viol ated the principle of equality of arms, guaranteed by Article 5 § 4.

Law – Article 5 § 4: The applicant had been released from custody pursuant to the order of 31 May 2011. However, the decision of the investigating judge was subject to further review foll owing an appeal and was not therefore final. An appeal was in fact lodged by the prosecution against the investigating judge’s decision. In calling for that decision to be quashed, the prosecutor’s office sought, through the appeal proceedings, to have the initial detention order upheld. Had the prosecution’s appeal been dismissed the decision to release the applicant would have become final; since it was accepted, the applicant was again placed in custody. The appeal thus represented a continuation of the proceedings relating to the lawfulness of the applicant’s detention. In those circumstances, the outcome of the appeal proceedings was a crucial factor in the decision as to the lawfulness of the applicant’s detention, irrespective of whether at that preci se time the applicant was or was not held in custody. Article 5 § 4 was therefore applicable to the appeal proceedings.

A court examining an appeal against a decision related to detention had to provide guarantees of a judicial procedure. The proceedings h ad to be adversarial and had to ensure equality of arms between the parties. In view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 should in principle meet, to the largest extent possible under the circumstances of an ongoing investigation, the basic requirements of a fair trial, such as the right to an adversarial procedure.

In its appeal against the investigating judge’s decision ordering the applicant’s releas e, the prosecution advanced numerous reasons for ordering detention. That appeal was not communicated to the defence and thus, the applicant had no opportunity to answer the arguments put forward by the prosecution. The three-judge panel which ordered the applicant’s detention on 10 June 2011 did so in a closed meeting without informing, let alone inviting, the applicant or his representative who were thus not given an opportunity to put forward arguments concerning his detention. Since the defence was unab le to present any arguments to the court in those proceedings, either in writing or orally, the applicant could not effectively exercise his defence rights in the proceedings. The principle of equality of arms had not been respected.

Conclusion : violation (unanimously).

The Court also found a further violation of Article 5 § 4 in respect of the decision of the Constitutional Court and no violation of Article 5 § 1 in respect of the panel’s failure to set a time-limit for the applicant’s detentio n.

Article 41: EUR 500 in respect of non-pecuniary damage.

(See Fodale v. Italy , 70148/01, 1 June 2006, Information Note 87 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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