The ECHR judgment of 11 July 2017 in the case of Oravec v. Croatia (application No. 51249/11).
In 2011, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Croatia.
In the case, the applicant's complaint on the failure to secure the benefit of the prosecutor's office. There has been a violation of Article 5 § 4 and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. There has been a violation of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
In April 2011, the applicant was detained and detained on suspicion of selling narcotic substances. Subsequently, he was released by order of the investigating judge. This decision was overturned by the protest of the prosecution, and on May 31, 2011 the judge reviewed the case and confirmed the previous decision. The Prosecutor's Office made a presentation that was not brought to the attention of the applicant or his counsel. On June 10, 2011, a three-judge panel of judges held a closed meeting in the absence of the parties. He quashed the decision of the investigating judge and ordered the applicant's detention. On 14 June 2011 the applicant was again taken into custody. His complaints to the Supreme and Constitutional Courts were unsuccessful. The applicant complained to the Court, inter alia, that the appeal proceedings violated the principle of equality of arms guaranteed by Article 5 § 4 of the Convention.
ISSUES OF LAW
Concerning compliance with article 5, paragraph 4, of the Convention. The applicant was released from custody in accordance with the decision of 31 May 2011. However, the decision of the investigating judge could be reviewed and therefore was not final. Indeed, the prosecutor's office filed a protest against the decision of the investigating judge. In demanding the cancellation of the decision, the prosecutor's office requested that, in the framework of the appellate proceedings, the initial detention order be upheld. If the prosecutor's appeal had been rejected, the decision to release the applicant would have come into force, but since it was granted, the applicant was again placed in custody. Thus, the protest constituted an extension of the proceedings relating to the lawfulness of the applicant's detention. In such circumstances, the outcome of the appeal proceedings was decisive for a decision on the lawfulness of the applicant's detention, regardless of the time at which the applicant was detained or not held in custody. Consequently, Article 5 § 4 of the Convention was applicable to the appeal proceedings. A court that reviews a complaint about a decision on detention should provide guarantees of judicial procedure. Proceedings must be adversarial and ensure equality of the parties. Given the negative impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted in accordance with article 5, paragraph 4, of the Convention should, in principle, respond as much as possible in the circumstances of the ongoing investigation to the basic requirements of a fair trial, such as the right to an adversarial procedure. In his protest against the decision of the investigating judge to release the applicant, the prosecution put forward numerous grounds for bringing the applicant into custody. This protest was not brought to the attention of the defense, so the applicant did not have the opportunity to respond to the prosecution's arguments. A three-judge court that decided to detain the applicant on 10 June 2011 did so at a closed meeting, without informing, let alone notifying, the applicant or his representative, who as a result were unable to put forward arguments on the conclusion in custody. Since the defense could not present arguments to the court in this proceedings in writing or verbally, the applicant could not effectively exercise his rights of defense in the proceedings. Accordingly, the principle of equality of parties was not observed.
The violation of the requirements of Article 6 of the Convention (unanimously) was committed.
The Court also held that there had been a violation of the requirements of Article 5 § 4 of the Convention in respect of the decision of the Constitutional Court and that the requirements of Article 5 § 1 of the Convention had not been violated in relation to the failure to establish the applicant's detention.