CASE OF MUGOŠA v. MONTENEGRO
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani
5. The applicant was born in 1962 and lives in Podgorica, but is currently detained at the Institute for Execution of Criminal Sanctions (Zavod za izvršenje krivičnih sankcija; “IECS” hereinafter) in Spuž. 6. On 19 February 2011 the applicant was detained on suspicion that he had committed a murder. 7. On 21 February 2011 the High Court (Viši sud) in Podgorica issued a detention order against the applicant. It is clear from the case file that the applicant’s detention was extended on 16 March 2011, 17 May 2011 and 18 July 2011. The decisions of 17 May and 18 July 2011 are in the case file. The decision of 17 May 2011 specified that the detention would last “until a further decision of the court” (ima trajati do dalje odluke suda). The decision of 18 July 2011 specified nothing in this regard. 8. On 16 May 2011 the applicant was indicted for murder. 9. On 23 September 2011 the applicant approached the prison authorities requesting that he be released in the absence of any decision extending his detention after 18 September 2011. 10. The same day the applicant was served with a copy of a decision of 22 September 2011, sent by fax. The copy was neither signed nor stamped. The decision, in its reasoning part, specified as follows: “On 16 May 2011 the High State Prosecutor in Podgorica lodged an indictment Kt.br. 29/11 against [the applicant] for the criminal offence of aggravated murder under Article 144 § 1 (1) and (4) of the Criminal Code. [The applicant] was detained pursuant to decision Kri.br. 151/11 issued by the investigating judge of this court on 21 February 2011, which detention was extended by decisions of this court’s panel, Kv. Br. 268/11 of 16 March 2011 and Kv. Br. 472/11 of 17 May 2011. The three-judge panel (krivično vijeće) has, on its own motion, within the meaning of Article 179 § 2 of the Criminal Procedure Code, examined further detention of [the applicant] and found as follows: - the detention [of the applicant] should be extended pursuant to Article 175 § 1 (1) and (4) of the Criminal Procedure Code. Notably, given that [the applicant] is indicted for an aggravated murder pursuant to Article 144 § 1 (a) and (4) of the Criminal Code, and in view of the seriousness of the criminal offence for which he could be sentenced to between 10 and 40 years of imprisonment, and especially in view of the fact that the accused committed the said criminal offence on 17 February 2011 at around 21.30, after which he fled the crime scene, and that the authorised police officers of the Police Directorate – Podgorica Unit deprived him of liberty on 19 February 2011 at 13.00, these are the reasons, in view of the panel, justifying the extension of detention pursuant to Article 175 § 1 (1) of the Criminal Procedure Code. In the opinion of this panel [the applicant’s] detention should be extended also pursuant to the detention basis as provided in Article 175 § 1 (4) of the Criminal Procedure Code, given that [the applicant] is charged with aggravated murder under Article 144 § 1 (1) and (4) of the Criminal Code, and having in mind that the provided sentence is between 10 and 40 years of imprisonment, the first condition for the extension of detention under Article 175 § 1 (4) of the Criminal Procedure Code is fulfilled, that is that the provided sentence for the criminal offence is 10 years or more. Furthermore, in this particular case there are particularly qualifying circumstances of the criminal offence at issue due to the manner in which it was committed or its consequences, which are reflected in the fact that [the applicant], as it transpires from the case-file, [...] in an insidious manner and for material gain, deprived X of his life [...] by shooting him at close range in the chest and in the back with an automatic gun several times, inflicting on him numerous injuries and causing his immediate death, after which he fled, and according to this panel the aforementioned established facts and circumstances, in their entirety, represent extraordinary circumstances indicating that the [applicant’s] release would threaten public order and peace, which reasons justify the extension of detention.” 11. On 26 September 2011 the applicant appealed, complaining about the manner in which the decision had been served on him and claiming that his detention had ended on 17 September 2011, that is two months as of the last extension of detention. The same day the applicant was served with the stamped and signed decision of 22 September 2011. 12. On 29 September the applicant filed another appeal. 13. On 4 October 2011 the Court of Appeals (Apelacioni sud) in Podgorica dismissed both appeals. It established that the decision delivered by fax was identical to the original which was signed and stamped. It further considered that the applicant had been served with a decision bearing no signature or stamp by an obvious mistake, which did not make the decision unlawful or cause a violation of his human rights guaranteed by the Constitution and the Convention. One of the judges involved in the ruling was S.V. 14. By 4 November 2011 the applicant filed a constitutional appeal, submitting a number of complaints, one of them being that S.V. should have been excluded from the bench given that she was related to the representative of the injured party. 15. On 12 January 2012 the Constitutional Court (Ustavni sud) in Podgorica quashed the decision of the Court of Appeals and ordered that the case be re-examined. The Constitutional Court quashed the said decision on the ground that S.V. had indeed to be excluded from ruling on the applicant’s appeals as she was the sister of the injured party’s representative. In view of this, the court did not consider it necessary to examine the other complaints. 16. On 25 January 2012 the Court of Appeals, upon the remittal by the Constitutional Court, dismissed the applicant’s appeals. This decision was not submitted to the case-file. From the subsequent decision of the Constitutional Court (see paragraph 18 below), however, it transpires that the Court of Appeals held, in particular, that: (a) the applicant’s detention had not ended on 17 September 2011, as the previous detention order had not specified how long the detention would last and the statutory time-limit of two months was not mandatory (see paragraphs 33 and 34 below); and (b) the absence of the stamp and signature on the detention order did not make it unlawful. 17. On 22 March 2012 the applicant filed a constitutional appeal complaining that his detention had not been extended within the statutory time-limit of two months, that the copy of the relevant decision had not been signed and stamped, and that the presumption of innocence had been violated by the High Court’s decision. He relied, inter alia, on Articles 5 and 6 of the Convention. 18. On 20 April 2012 the Constitutional Court dismissed the applicant’s constitutional appeal. It considered in particular that the relevant legislation limited the duration of the detention to three years after the indictment, and that there was no other limitation in that regard. The courts had a duty to examine every two months if reasons for detention persisted and, depending on the circumstances, extend it or revoke it. There was no obligation on the courts to specify how long the detention would last, given their obligation to control the duration of the detention every two months. However, these statutory time-limits were not mandatory and the fact that the decision had been issued after two months and four days could not therefore be decisive for concluding that the applicant’s right to liberty was violated. The court also held that the High Court and the Court of Appeals had not stated that the applicant was guilty but that it transpired from the case-file and the disputed decisions that the applicant had been charged with the relevant criminal offence. The court did not address the complaint about the lack of a stamp and signature on the copy of the decision extending the detention on 22 September 2011. 19. It is clear from the case-file that the above decision of the Constitutional Court was not dispatched before 18 May 2012. 20. On 22 March 2013, as submitted by the Government, the High Court issued a first-instance decision on the charges against the applicant. They did not provide a copy thereof. There is also no information in the case-file as to whether the criminal proceedings against the applicant have ended in the meantime and if so what the outcome was.