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SECOND SECTION

Application no. 49335/07
Miodrag MARKOVIC
against Serbia
lodged on 2 November 2007

STATEMENT OF FACTS

The applicant, Mr Miodrag Markovic is a Montenegrin national, who was born in 1964 and lives in Nikšic (Montenegro). He was represented before the Court by Mr Z. Ðukanovic, a lawyer practising in Belgrade.

A.  The circumstances of the case

1.  The applicant’s detention and extradition

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

On 27 June 2006 the Court of First Instance in Skopje (the former Yugoslav Republic of Macedonia) issued a search and arrest warrant for the applicant’s arrest on charges of money laundering. The applicant was referred to as a citizen of the Former Yugoslav Republic of Macedonia.

On 16 October 2006 the Skopje Interpol issued an international arrest warrant.

On 10 December 2006 at 4.45 p.m. the Serbian authorities arrested the applicant at the Serbian-Montenegrin border on the basis of that arrest warrant.

On 11 December 2006 the investigating judge of the District Court in Užice (“the District Court”) formally established the applicant’s identity and questioned him. The investigating judge subsequently ordered the applicant’s detention due to the risk of his absconding, pending the outcome of the extradition proceedings. Relying on Articles 142 § 2 (1) and 543 of the Criminal Procedure Code, he stated, in particular: (a) that the detention could last up to two months and that it could ultimately be extended to a maximum of one year; (b) that the Macedonian authorities should send a request for extradition within one month of the arrest; and (c) that the applicant would be released if the Macedonian authorities failed to do so unless an extension of the time-limit was granted. On 25 December 2006 the Macedonian Ministry of Justice requested an extension of up to 40 days from the arrest to submit the request and further supporting documents. It would appear that this request was sent as “urgent”. The Serbian authorities (Uprava za zajednicke poslove republickih organa) acknowledged receipt of the request on 3 January 2007.

According to the applicant, the District Court never ruled in respect of this request.

It would appear that on 17 January 2007 the Serbian Ministry of Justice received the request with the supporting documents from the Macedonian Ministry of Justice. It would appear that on 19 February 2007 the District Court received it from the Serbian Ministry of Justice.

On 23 January 2007 the District Court found that the procedural requirements for the applicant’s extradition had been fulfilled.

On an unspecified date, the applicant appealed against this decision, stating that the Macedonian request had arrived too late.

On 16 February 2007 the decision of the District Court was upheld by the Supreme Court of Serbia. That court found that the formal request of the Macedonian authorities had been received within 40 days, as enshrined by the European Convention on Extradition.

In the meantime, on 8 February 2007 the District Court extended the applicant’s detention for another month. It appears that after each monthly extension, the applicant requested to be released and that each time this was refused by the Supreme Court, its last decision on appeal being of 16 October 2007. The courts justified their extensions of the detention/refusals to release the applicant on the basis of the risk of his absconding and pursuit of the requirements of the extradition proceedings.

On 3 October 2007 the Minister of Justice ordered applicant’s extradition to Macedonia. On 8 October 2007 the District Court was informed about the extradition order.

On 17 October 2007 the applicant was surrendered to the Macedonian authorities. According to the applicant, he was not served with a copy of the Minister’s order until 5.00 a.m. that day, while his counsel learned about it through the Supreme Court’s decision of 16 October 2007.

2.  Other relevant facts

On 12 December 2006 the applicant applied for Serbian nationality.

On 31 March 2007 the Ministry of Internal Affairs rejected his application.

On an unspecified date the applicant appealed against this decision, alleging errors of facts and law by the Ministry.

On 25 October 2007 the Supreme Court annulled the Ministry’s decision because the latter had failed twice to provide it with the case-file.

It would appear that the applicant’s request for citizenship is still pending.

On an unspecified date the applicant lodged a civil claim with the First Municipal Court in Belgrade, requesting damages for his “unlawful detention pending extradition”.

On 12 June 2009 the First Municipal Court rejected the applicant’s claim. It would appear that the applicant’s case is still pending on appeal.

B.  Relevant international and domestic law

1.  International law

The former Federal Republic of Yugoslavia (“the FRY”) acceded to the European Convention on Extradition on 30 September 2002. The FRY’s instruments of accession to this Convention contained a declaration to the effect that the FRY would refuse the extradition and transit of its nationals in accordance with Article 6 § 1(a) of the Convention.

The relevant provisions of the Convention, which came into force in respect of the then FRY, Serbia being part of it, on 29 December 2002, read as follows:

Article 1 - Obligation to extradite

"The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order."

Article 6 – Extradition of nationals

“1 a. A Contracting Party shall have the right to refuse extradition of its nationals.

...”

Article 12 – The request and supporting documents

“1. The request shall be in writing and shall be communicated through the diplomatic channel. Other means of communication may be arranged by direct agreement between two or more Parties.

2. The request shall be supported by:

a. the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party;

b. a statement of the offences for which extradition is requested; the time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and

c. a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality.”

Article 16 – Provisional arrest

“1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.

...

4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.

5. Release shall not prejudice re-arrest and extradition if a request for extradition is received subsequently.”

Article 22 – Procedure

“Except where this Convention otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party.”

2.  Domestic law

The provisions governing extradition proceedings (in force at the material time) were contained in Articles 530-555 of the Criminal Procedure Code (Zakonik o krivicnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 70/01 and 68/02, as well as in the Official Gazette of the Republic of Serbia – OG RS - nos. 58/04, 85/05, 115/05, 46/06, 49/07).

Article 539 provides that extradition of defendants or sentenced persons should be conducted in accordance with the provisions of international treaties. If there is no international treaty or the international treaty does not regulate certain issues, extradition shall be conducted in accordance with the Code.

Article 540 § 1 (1) provides that one of the conditions for the extradition is that the person in question is not a citizen of Serbia and Montenegro.

As regards detention in urgent cases before a request for extradition is submitted (Article 543), the police may arrest the foreigner in order to bring him before the investigating judge of the competent court, upon a petition of a foreign authority, regardless of how the petition was submitted. The investigating judge shall, after having heard the foreigner, order his detention. Further, the investigating judge shall release the foreigner when the grounds for detention cease to exist or if a request for extradition is not submitted within a time-limit set by the investigating judge and which may not be longer than two months from the day the foreigner was arrested. The foreign State shall be notified of this time-limit. Upon a request of the foreign State, the trial chamber of the court having jurisdiction may prolong this time-limit for an additional month if justifiable reasons exist. Detention may be continued until at the latest the enforcement of the decision on extradition, but no longer than one year from the day when he was detained.

COMPLAINTS

The applicant relies on Articles 5, 6, 7, 13, 14, 17 and 18 of the Convention, Article 3 of Protocol No. 4, Articles 1 and 3 of Protocol No. 7 and, finally, Article 1 of Protocol No. 12.

In substance, however, he complains about the lawfulness of his detention on the ground that the Macedonian request for extradition was belated and that the legal basis for his extradition and detention was unclear.

The applicant further complains about the arbitrariness of his detention because of delays and bad faith on the side of the authorities while conducting the impugned extradition proceedings.

Finally, he complains about the fairness of the extradition proceedings, given that the competent authorities had deprived him of his “Serbian nationality”, to which he was lawfully entitled, so as to allow his extradition.

QUESTIONS TO THE PARTIES

1.  Were the extradition proceedings carried out on the basis of the provisions of the European Convention on Extradition or the Criminal Procedure Code?

2.  When did the Serbian authorities receive a request for the applicant’s extradition, including the supporting documents, from the authorities of the former Yugoslav Republic of Macedonia (Article 12 of the European Convention on Extradition, and Articles 541 and 543 of the Criminal Procedure Code)? Did the District Court in Belgrade take a decision extending the initial deadline for the submission of the request from the Macedonian authorities? If so, the relevant decision should be provided.

3.  Was the applicant deprived of his liberty in breach of Article 5 § 1 (f) of the Convention? In particular, were the decisions and the reasoning of the judicial authorities as regards the applicant’s detention in accordance with the principles of legal certainty and the protection from arbitrariness (see, mutatis mutandis, Jecius v. Lithuania, no. 34578/97, ECHR 2000-IX)? Further, in view of the timeliness or otherwise of the request for extradition, can the applicant’s deprivation of liberty be said to be “in compliance with domestic law” within the meaning of Article 5 § 1 or “lawful” within the meaning of paragraph (f) of this provision (see, for example, Bordovskiy v. Russia, no. 49491/99, §§ 41-46, 8 February 2005)? Finally, did the authorities conduct the extradition proceedings with due diligence to ensure that the duration of detention pending extradition was kept to a minimum (see Kolompar v. Belgium, no. 11613/85, § 42, 24 September 1992; Quinn v. France, 22 March 1995, § 48, Series A no. 311; and Bordovskiy v. Russia, cited above, § 50)?

4. The Government are requested to submit copies of any and all documents contained in the files of all authorities which dealt with the applicant’s arrest, detention and extradition.