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SECOND
SECTION
CASE OF MATIJAŠEVIĆ v. SERBIA
(Application
no. 23037/04)
JUDGMENT
STRASBOURG
19
September 2006
FINAL
19/12/2006
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In
the case of Matijašević v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mrs A. Mularoni,
Mrs E.
Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 29 August 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23037/04) against the State
Union of Serbia and Montenegro, subsequently succeeded by the
Republic of Serbia (see paragraphs 22-25 below), lodged with the
Court under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”)
by, at that time, a citizen of the State Union of Serbia and
Montenegro, Mr Milija Matijašević (“the
applicant”), on 20 May 2004.
- The
applicant was represented by Mr V. Beljanski, Mr S. Beljanski and Ms
G. Francuski, all lawyers practising in Novi Sad. The Government of
the State Union of Serbia and Montenegro, initially, and the
Government of Serbia, subsequently, (“the Government”)
were represented by their Agent, Mr S. Carić.
- On
8 June 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it was decided that the merits of the application would
be examined together with its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1976 and is currently serving a prison
sentence.
- On
7 May 2003 the applicant was arrested and remanded in custody by an
investigating judge of the Novi Sad District Court on suspicion of
fraud and murder.
- On
4 November 2003 the District Public Prosecutor’s Office in Novi
Sad issued an indictment against the applicant on charges of fraud
and incitement to commit murder.
- On
2 April 2004 the three-judge panel of the Novi Sad District Court
extended the applicant’s detention on remand for another two
months. In its reasoning, justifying this decision, the panel relied
on the applicant’s prior convictions as well as his persistent
anti-social behaviour. In addition, the panel expressly stated that
the applicant had “committed the criminal offences which are
the subject of this prosecution” (“počinio kriv.
dela koja su predmet ove optuZbe”) and concluded that the
applicant, if released, would be likely to commit further offences.
- On
16 April 2004 the applicant appealed to the Supreme Court of Serbia,
requesting that his detention be terminated or, alternatively, that
the remand decision be quashed and the case remitted to the Novi Sad
District Court for reconsideration. He argued, inter alia,
that since the impugned decision had prejudged the outcome of the
pending criminal case, it had blatantly breached his fundamental
right to be presumed innocent as “guaranteed in the Code of
Criminal Procedure, the Constitution of the Republic of Serbia and
indeed Article 6 § 2 of the European Convention on Human Rights
and Fundamental Freedoms”.
- On
22 April 2004 the Supreme Court of Serbia dismissed the appeal,
focussing exclusively on the applicant’s prior criminal
convictions and the alleged danger that he would commit further
offences if released. It did not refer to the applicant’s
submission concerning the presumption of innocence.
- On
27 May 2004 the Novi Sad District Court found the applicant guilty of
incitement to murder and sentenced him to eight years in prison.
- On
23 September 2004 the Supreme Court of Serbia upheld the judgment of
the Novi Sad District Court. As stated by the applicant in a separate
case currently pending before this Court (application no. 31617/05),
his lawyer received that decision on 7 March 2005.
II. RELEVANT DOMESTIC LAW
A. Charter on Human and Minority Rights and Civic Freedoms
of the State Union of Serbia and Montenegro (Povelja o ljudskim i
manjinskim pravima i građanskim
slobodama drZavne zajednice Srbija i Crna Gora; published in the
Official Gazette of Serbia and Montenegro - OG SCG - no. 6/03)
- Articles
19 and 9 § 2 of the Charter provided as follows:
Article 19
“Everyone shall be deemed innocent until proved
guilty of a criminal offence in a final decision of a court of law.”
Article 9 § 2
“Everyone who believes that any of his human or
minority rights as guaranteed by this Charter have been violated or
denied by an individual act or action of a State Union institution,
or a member-state body or organization exercising public powers,
shall have the right to submit a complaint to the Court of Serbia and
Montenegro, if no other legal redress is provided in a member state,
in accordance with the Constitutional Charter.”
B. Constitutional Charter of the State Union of Serbia
and Montenegro (Ustavna povelja drZavne zajednice Srbija i Crna
Gora; published in OG SCG no. 1/03)
- The
relevant part of Article 46 of the Constitutional Charter provided as
follows:
“The Court of Serbia and Montenegro: ...
- shall examine complaints lodged by citizens in cases
where an institution of Serbia and Montenegro has infringed their
rights and freedoms as guaranteed by the Constitutional Charter, if
no other legal redress has been provided; ...”
C. Constitution of the Republic of Serbia (Ustav
Republike Srbije; published in the Official Gazette of the
Republic of Serbia - OG RS - no. 1/90)
- Article
23 § 3 of this Constitution provides as follows:
“No one shall be considered guilty of a criminal
offence until so proved in a final decision of a court of law.”
D. Obligations Act (Zakon o obligacionim odnosima;
published in the Official Gazette of the Socialist Federal Republic
of Yugoslavia - OG SFRY - nos. 29/78, 39/85, 45/89, 57/89 and the
Official Gazette of the Federal Republic of Yugoslavia - OG FRY -
no. 31/93)
- Sections
199 and 200 of the Obligations Act provided, inter alia, that
anyone who had suffered fear, physical pain or, indeed, mental
anguish as a consequence of a breach of “personal rights”
(prava ličnosti) was entitled,
depending on their duration and intensity, to sue for financial
compensation in the civil courts and, in addition, to request other
forms of redress “which might be capable” of affording
adequate non-pecuniary satisfaction.
Court of Serbia and Montenegro Act (Zakon o Sudu Srbije i Crne
Gore, published in OG SCG no. 26/03)
- The
relevant provisions of this legislation were as follows:
Section 62 § 1
“A citizen’s complaint may be filed by
anyone who considers that an individual act or action of an
institution of Serbia and Montenegro, or a member-State body or
organization exercising public powers, has violated his human or
minority rights, if no other avenue of legal redress is available or
if redress has not been secured within a member State.”
Section 64
“A citizen’s complaint may be lodged within
three months from the date of receipt of the individual decision or
the commission or cessation of an action in violation of a human or
minority right guaranteed by the Constitutional Charter.”
Section 65 §§ 1 and 2
“If the Court finds that an individual decision or
action is in violation of a human or minority right guaranteed by the
Constitutional Charter, it may annul the individual decision in
question, prohibit the continuation of such actions or order the
implementation of other specific measures and, in view of the
circumstances of each case, order the removal of all consequences
stemming from such decisions and/or actions.
The decision of the Court accepting a citizen’s
complaint shall constitute a legal basis for requesting compensation,
or the removal of other adverse consequences, from a competent body,
in accordance with the law.”
III. REPORTS OF THE COUNCIL OF EUROPE
- In
a Council of Europe report on the State Union of Serbia and
Montenegro of 30 April 2004, it was stated that the Court of Serbia
and Montenegro had still not been established and that the setting-up
of such a court had not been considered a priority by the State Union
authorities since accession to the Convention (Serbia and Montenegro:
Compliance with obligations and commitments and implementation of the
post-accession co-operation programme, document presented by the
Secretary General of the Council of Europe, fourth report, February -
April 2004, § 27).
- In
a subsequent report of 13 July 2005, the Council of Europe found that
the Court of Serbia and Montenegro had at last started operating in
January 2005. The court’s financing, however, had not been
fully secured. Lastly, 200 individual human rights complaints had
been registered as cases, but no decisions had yet been rendered
(Serbia and Montenegro: Compliance with obligations and commitments
and implementation of the post-accession co-operation programme,
document presented by the Secretary General, eighth report, March
2005 - June 2005, §§ 14 and 44).
IV. RESERVATION UNDER ARTICLE 13 OF THE CONVENTION
- In
a reservation contained in its instrument of ratification of the
Convention and its Protocols, deposited with the Council of Europe on
3 March 2004, the Government of the State Union of Serbia and
Montenegro stated that “the provisions of Article 13 shall not
apply in relation to the legal remedies within the jurisdiction of
the Court of Serbia and Montenegro, until the said Court becomes
operational in accordance with Articles 46 to 50 of the
Constitutional Charter of the State Union of Serbia and Montenegro
(SluZbeni list
Srbije i Crne Gore, no. 1/03)”.
20. This
reservation was withdrawn by a letter dated 11 July 2005
from the Permanent Representation of the State Union of Serbia and
Montenegro, registered at the Secretariat General on 15 July 2005.
V. LETTER FROM THE COURT OF SERBIA AND MONTENEGRO DATED 16
JANUARY 2006
- In
a letter of 16 January 2006 the Court of Serbia and Montenegro
clarified that it was yet to rule in respect of a single “citizen’s
appeal”. It further pointed out that the reason for this was
the proposed amendment to the relevant legislation regulating the
court’s work which, at the time, was still pending (Statement
No. 20/60, provided in the context of a separate application pending
before this Court; application no. 2361/05).
VI. THE SUCCESSION OF SERBIA
- The
State Union of Serbia and Montenegro ratified the Convention on 3
March 2004.
- Following
a referendum, on 3 June 2006, Montenegro declared its independence
from the State Union of Serbia and Montenegro, whereupon that entity
ceased to exist together with all of its public bodies including the
Court of Serbia and Montenegro.
- On
5 June 2006 the President of Serbia informed the Secretary General of
the Council of Europe that Serbia was the sole successor to the
former State Union of Serbia and Montenegro
- In
its decision of 14 June 2006 the Committee of Ministers of the
Council of Europe noted inter alia: (i) that “Serbia ...
[had continued] ... membership of [the State Union of] Serbia and
Montenegro in the Council of Europe with effect from 3 June 2006”,
and (ii) that it had remained a party to a number of Council of
Europe conventions signed and ratified by the former State Union of
Serbia and Montenegro, including the Convention for the Protection of
Human Rights and Fundamental Freedoms.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- In
his application lodged on 20 May 2004, the applicant, relying on
Article 6 § 2 of the Convention, complained that in the course
of reviewing his detention on remand, on 2 April 2004, the Novi Sad
District Court had declared him guilty before his guilt had been
proved according to law and, further, that on 22 April 2004 the
Supreme Court of Serbia had failed to rectify this “error”
on appeal. Article 6 § 2 reads as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
A. Admissibility (exhaustion of domestic remedies)
1. Arguments of the parties
- The
Government submitted that the applicant had not exhausted all
available and effective domestic remedies. In particular, he had
failed to lodge a civil claim under sections 199 and 200 of the
Obligations Act, or a “citizen’s complaint”
(appeal) with the Court of Serbia and Montenegro (see paragraphs 15
and 16 above). Further, since Article 19 of the Charter on Human and
Minority Rights and Civic Freedoms (see paragraph 12 above) enshrined
the presumption of innocence, the present case clearly fell within
that court’s jurisdiction ratione materiae. Lastly, the
Government submitted that the Court of Serbia and Montenegro Act was
being reviewed and that its jurisdiction might, in due course, be
amended so that citizen’s complaints could be considered by the
plenary court instead of chambers and, further, that rulings it
adopted under such a procedure would formally be “decisions”
rather than “judgments”.
- The
applicant stated that a citizen’s complaint alleging an
individual human rights violation, as referred to by the Government,
was a remedy which was neither available in his case nor effective in
general. The applicant pointed out that he had lodged his
application with the Court on 20 May 2004 but that the respondent
Government had since conceded that the Court of Serbia and Montenegro
was not in operation before 7 July 2004. Further, even
though this court had yet to issue a single judgment in respect of a
citizen’s complaint, the Government had already started
discussing amendments to the relevant legislation, thereby implicitly
acknowledging its ineffectiveness as it stood. Lastly, the
applicant maintained that, given the relevant domestic law, it was
unclear whether a citizen’s complaint could be lodged once all
other legal remedies had been exhausted or only where no such
remedies existed in the first place. In any event, there was no
case-law to provide any guidance in this respect.
2. Relevant principles
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges those
seeking to bring a case against the State before an international
judicial organ to use first the remedies provided by the national
legal system, thus dispensing States from answering before an
international body for their acts before they have had an opportunity
to put matters right through their own legal systems. In order to
comply with the rule, normal recourse should be had by an applicant
to remedies which are available and sufficient to afford redress in
respect of the breaches alleged (see Assenov
and Others v. Bulgaria,
no. 24760/94, § 85, ECHR 1999-VIII).
- Further,
the existence of such remedies must be sufficiently certain not only
in theory but also in practice, failing which they will lack the
requisite accessibility and effectiveness (see, mutatis mutandis,
Van Droogenbroeck v. Belgium, judgment of 24 June 1982,
Series A no. 50, p. 30, § 54).
- Finally,
where there are several effective
remedies available, it is for the applicant to select which remedy to
pursue in order to comply with the requirements of Article 35 §
1 of the Convention (see Airey v. Ireland, judgment of 9
October 1979, Series A no. 32, p. 12, § 23).
3. Application of these principles to the present case
- The
Court notes that the Government were unable to cite any domestic
cases in which a claim based on sections 199 and 200 of the
Obligations Act had been successful in a case such as the
applicant’s. However, even assuming that this remedy could have
provided the applicant with redress, the Court considers that, having
exhausted the effective remedies in the context of his detention, the
applicant could not in addition have reasonably been expected to
embark upon yet another avenue of “potential redress”.
- The
lodging of such a civil claim, in the specific circumstances of the
present case, was thus not necessary to comply with Article 35 §
1 of the Convention.
34.
As regards the lodging of a “citizen’s complaint”
with the Court of Serbia and Montenegro, the court notes that on 15
July 2005 the respondent State withdrew the reservation contained in
its instrument of ratification of the Convention. By doing so, in the
Court’s view, the Government implicitly accepted that, prior to
that date, the said court could not have been considered effective or
even available (see paragraphs 19-20 above).
- Further,
on 16 January 2006 the Court of Serbia and Montenegro itself
acknowledged that it had yet to rule on a single “citizen’s
complaint” alleging an individual human rights violation.
Moreover, it was apparently awaiting the adoption of amendments to
the Court of Serbia and Montenegro Act, at some point in the
unforeseeable future (see paragraph 21 above).
- Lastly,
on 3 June 2006 Montenegro declared its independence from the State
Union of Serbia and Montenegro, whereupon the latter entity ceased to
exist, as did all of its bodies including the Court of Serbia and
Montenegro (see paragraphs 22-25 above).
- The
Court therefore considers that the applicant was not obliged to
exhaust a remedy which was unavailable at the material time and had
remained ineffective until the very break-up of the State Union of
Serbia and Montenegro.
4. Conclusion
- The
Court concludes that the complaint cannot be declared inadmissible
for non-exhaustion of domestic remedies in accordance with Article 35
§ 1 of the Convention. Accordingly the Government’s
objection must be dismissed.
- The
Court also considers that the complaint raises questions of law which
are sufficiently serious for its determination to depend on an
examination of the merits, no other ground for declaring it
inadmissible having been established. The Court therefore declares
the complaint admissible.
B. Merits
1. Arguments of the parties
- The
applicant submitted in particular that, in the course of reviewing
his detention on remand, the Novi Sad District Court had, on 2 April
2004, declared him guilty before his guilt had been proved according
to law; that it did so by stating that he had “committed the
criminal offences which are the subject of this prosecution”;
and that on 22 April 2004 the Supreme Court of Serbia had failed to
rectify this “error” on appeal.
- The
Government submitted that the impugned wording used by the Novi Sad
District Court was an obvious mistake, or in other words “an
imprecise formulation”, and that it should instead have said
that there was “a reasonable suspicion” that the
applicant had committed the crimes with which he was charged.
- The
applicant maintained that the District Court’s reasoning could
not be dismissed as a mere mistake. He submitted that there was a
fundamental difference between a statement that someone had committed
a crime and an assertion that he was simply suspected of having done
so. In any event, even though the decision at issue had been appealed
against before the Supreme Court, after the District Court itself,
neither court had done anything to rectify the “error”.
On the contrary, the Supreme Court had dismissed the appeal,
notwithstanding the explicit complaints therein concerning a breach
of the presumption of innocence.
- The Government recalled that on 27 May 2004 the Novi
Sad District Court had found the applicant guilty of incitement to
murder and sentenced him to eight years’ imprisonment, that
conviction having subsequently been upheld by the Supreme Court on
appeal. They concluded that, in such circumstances, there had been no
violation of Article 6 § 2 of the Convention and, to that
effect, cited the judgments in Phillips v. the United
Kingdom (no. 41087/98, ECHR 2001 VII) and Engel and
Others v. the Netherlands (judgment of 8 June 1976, Series A
no. 22).
- The
applicant emphasised that a subsequent conviction could not vacate a
person’s initial right to the presumption of innocence.
2. Relevant principles
- The Court reiterates that the presumption of innocence
under Article 6 § 2 will be violated if a judicial decision
or, indeed, a statement by a public official concerning a person
charged with a criminal offence reflects an opinion that he is guilty
before his guilt has been proved according to law. It suffices, in
the absence of a formal finding, that there is some reasoning
suggesting that the court or the official in question regards the
accused as guilty, while a premature expression of such
an opinion by the tribunal itself will
inevitably run foul of the said presumption (see, among other
authorities, Deweer v. Belgium,
judgment of 27 February 1980, Series A no. 35, p. 30, §
56; Minelli v. Switzerland,
judgment of 25 March 1983, Series A no. 62, §§
27, 30 and 37; Allenet de Ribemont
v. France, judgment of 10
February 1995, Series A no. 308, p. 16, §§ 35-36;
and Karakaş and Yeşilırmak v. Turkey, no.
43925/985, § 49, 28 June 2005).
- Article
6 § 2 governs criminal proceedings in their entirety,
“irrespective of the outcome of the prosecution” (see
Minelli,
cited above, § 30). However, once an
accused has been found guilty, in principle, it ceases to apply in
respect of any allegations made during the subsequent sentencing
procedure (see Phillips and Engel and Others,
both cited above).
3. Application of these principles to the present case
- In
view of the facts of the case, as well as the above-cited case-law,
the Court finds that the Novi Sad District Court, in its decision
dated 2 April 2004, did pronounce the applicant’s guilt before
it was proved according to law and that, moreover, on 22 April 2004
the Supreme Court of Serbia failed to rectify this “error”
on appeal.
- As
regards the Government’s suggestion that the impugned wording
of the District Court was an obvious mistake, namely “an
imprecise formulation”, the Court agrees with the applicant
that there is a fundamental distinction to be made between a
statement that someone is merely suspected of having committed
a crime and a clear judicial declaration, in the absence of a final
conviction, that the individual has committed the crime
in question.
- The
fact that the applicant was ultimately found guilty and sentenced to
eight years’ imprisonment cannot vacate the applicant’s
initial right to be presumed innocent until proven guilty according
to law. As noted repeatedly in this Court’s case-law, Article 6
§ 2 governs criminal proceedings in their entirety “irrespective
of the outcome of the prosecution” (see paragraph 46 above).
- Lastly,
the Court considers the present case, where the impugned statement
was made in the context of detention, to be clearly distinguishable
from those of Phillips and Engel to which the
Government referred (see paragraph 46 above).
- There
has accordingly been a violation of Article 6 § 2 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- Following
the lodging of the application on 20 May 2004, the applicant
complained, for the first time, in his submissions of 28 October
2005, that one of the judges who had found him guilty in the District
Court on 2 April 2004 was also a member of that court’s trial
chamber which had convicted him on 27 May 2004. The applicant
maintained that the breach of his right to be presumed innocent was
thus aggravated and the overall fairness of the criminal proceedings
against him undermined.
- The
Court assumed, in favour of the applicant, that these complaints
could give rise to a separate issue under Article 6 § 1.
However, since the applicant’s lawyer received the decision of
the Supreme Court of Serbia on 7 March 2005 (see paragraph 11 above),
the complaints at issue are out of time, within the meaning of
Article 35 § 1 of the Convention, and must therefore be rejected
in accordance with Article 35 §§ 1 and 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 50,000 euros (EUR) for the non-pecuniary damage
sustained as a result of the violation of his right to a fair trial,
as well as of his right to be presumed innocent until proved guilty,
as guaranteed by Article 6 §§ 1 and 2 respectively.
- The
Government deemed that to be “manifestly unfounded” and
declined to provide any additional comments.
- In
the circumstances of the case, the Court considers that the finding
of a violation of Article 6 § 2 of the Convention alone
constitutes adequate just satisfaction in respect of the compensation
claimed under that head (see, mutatis mutandis, Lavents v.
Latvia, no. 58442/00, 28 November 2002).
B. Costs
- The
applicant also claimed a total of EUR 662 for the costs of his legal
representation before this Court.
- The
Government deemed that amount also to be “manifestly unfounded”
and declined to provide any additional comments.
- The
applicant provided the Court with an itemised and precise calculation
of these costs, fully in accordance with the “Lawyer’s
Remuneration Tariff” (“Tarifa o nagradama i naknadama
troškova za rad advokata”), as amended in 2004 and
published in OG SCG no. 58/04.
- The
Court therefore considers that these costs have been actually and
necessarily incurred, and are reasonable as to quantum. Consequently,
it awards the full claim of EUR 662.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank plus
three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 2
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 2 of the Convention;
3. Holds that the finding of a violation in itself constitutes
sufficient just satisfaction for any non-pecuniary damage sustained
by the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final, in accordance with
Article 44 § 2 of the Convention, EUR 662 (six
hundred and sixty-two euros) for costs, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 19 September 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
