Published on 5 February 2024

SECOND SECTION

Application no. 27055/22 Zlatko BOGDANIĆ against Croatia lodged on 23 May 2022 communicated on 18 January 2024

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s complaints under Article 5 of the Convention about his pre-trial detention ordered in relation to charges of unlawful deprivation of liberty and lewd acts committed against a minor.

The detention was initially ordered by the first-instance court on 19 March 2021 on the ground of risk of flight due to the fact that the applicant, who resided in Germany, had failed to appear before the court although having been properly summoned. Based on that decision, a European arrest warrant was issued, and the applicant was detained in Germany from 5 May 2021 to 17 September 2021, when he was transferred to Croatia and placed in pre ‑ trial detention. On 10 May 2021 the applicant appealed against the decision ordering his pre-trial detention.

Following the applicant’s transfer to Croatia, the second-instance court examined his appeal, quashed the first instance court’s decision, and remitted the case to that court. It found that there had been insufficient reasoning (both in terms of the existence of a reasonable suspicion for perpetrating the offences and grounds for continued detention), and that the possibility of applying a less restrictive measure had not been considered. It also noted that the reasons given by the first-instance court for the applicant’s detention referred to a disciplinary detention (intended to secure the presence of the accused at the trial), and not to a risk-of-flight detention.

Meanwhile, on 12 October 2021 the prosecution withdrew the charge regarding lewd acts. On 14 October 2021, the first-instance court issued a fresh detention order, on charges of both unlawful deprivation of liberty and lewd acts. When pronouncing the decision, the first-instance court ordered a disciplinary detention. However, in the written copy of the decision, it relied on the ground of risk of flight.

The applicant was detained until 20 October 2021, when the judgment finding him guilty of unlawful deprivation of liberty was rendered, and his pre-trial detention was discontinued. The Constitutional Court dismissed the applicant’s constitutional complaint, examining his pre-trial detention only in the period from 17 September (the day when he was transferred to Croatia) to 20 October 2021.

The applicant complains, relying on Article 5 §§ 1, 3 and 4 of the Convention, about the lack of relevant and sufficient reasons for his pre-trial detention on either of the grounds entertained by the domestic courts, as well as about the lack of a reasonable suspicion that he had committed lewd acts. Further to this, he submits that under Article 132 of the Croatian Code of Criminal Procedure the disciplinary detention could be ordered for a maximum period of thirty days, whereas he was detained for five and a half months. He also complains that the domestic courts did not examine the possibility of applying a less restrictive measure. Lastly, he complains of several shortcomings in relation to the procedure whereby he sought to challenge the lawfulness of his detention, namely of (i) the failure of the domestic courts to speedily decide on the lawfulness of his detention, considering that his appeal against the decision of 19 March 2021 was examined only after his transfer to Croatia; as well as of (ii) the failure of the Constitutional Court to examine the entire period of his detention – including the period of his detention in Germany effected on the basis of the European arrest warrant.

QUESTIONS TO THE PARTIES

1. Was the applicant’s continued pre-trial detention in compliance with Article 5 §§ 1 (c) and 3 of the Convention (see, for instance, Mooren v. Germany [GC], no. 11364/03, §§ 72-80, 9 July 2009; Ladent v. Poland , no. 11036/03, §§ 45-58, 18 March 2008; Vasiliciuc v. the Republic of Moldova , no. 15944/11, § 40, 2 May 2017; Merabishvili v. Georgia [GC], no. 72508/13, § 223, 28 November 2017, and Rubtsov and Balayan v. Russia , nos. 33707/14 and 3762/15, §§ 34-37, 10 April 2018)?

2. Having regard to the fact that the second-instance court examined the applicant’s appeal against the decision ordering the applicant’s pre-trial detention only upon his transfer to Croatia, was the length of the proceedings by which the applicant sought to challenge the lawfulness of his pre-trial detention in compliance with the “speed” requirement of Article 5 § 4 of the Convention (see Mooren , cited above, §§ 106-107)?

3. In view of the fact that the Constitutional Court examined the applicant’s pre-trial detention only in the period following the applicant’s transfer to Croatia, i.e . did not examine the lawfulness of his detention in Germany, was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention (see, mutatis mutandis , Vasiliciuc , cited above, §§ 37-38, and Hađi v. Croatia , no. 42998/08, §§ 41-48, 1 July 2010)?