PETROVIĆ AND GAJIĆ v. SERBIA
Inadmissible
Ján Šikuta;Johannes Silvis;Kristina Pardalos;Luis López Guerra
1. The applicants, Mr Goran Petrović and Mr Igor Gajić, are Serbian nationals, who were born in 1967 and 1973 respectively. They are represented before the Court by Mr S. Protić, a lawyer practising in Zemun. 2. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 March 2003 Serbian Prime Minister Zoran Đinđić was assassinated. On 13 March 2003 a state of emergency was declared in Serbia. On the same day the Serbian Government issued a directive which limited civil rights during the state of emergency. Among others, habeas corpus and the right to counsel during police custody were suspended. 3. The applicants were arrested on 14 March 2003. They were held incommunicado at different locations until 13 May 2003. According to the applicants, during that time they were subjected to torture, notably, beatings, asphyxiation, electric shocks, mock executions and threats. 4. On 13 May 2003 the applicants were brought before the investigating judge who remanded them in custody pending criminal investigation against them. The applicant Goran Petrović complained before the investigating judge that he had been tortured, while the second applicant’s lawyer said that his client had “injuries on his body and certain health issues” and requested that his client receive medical examination. It would appear that no steps were taken in regard to these complaints by the investigating judge. On 23 June 2003 the applicants’ counsel requested the investigating judge to gather the medical documentation concerning the applicants from different prisons in which they had been detained. 5. On 4 September 2003 Amnesty International reported that the applicants had allegedly been tortured. In response to this report, the Inspectorate General’s Service (“Inspectorate”) instigated an internal investigation on 12 September 2003. On 17 September 2003 the applicants and several witnesses were questioned and a report was finalised on 6 November 2003. Among the facts mentioned in the report, it is stated that on 1 April 2003 a doctor had noted haematomae on both applicants and that on 3 April 2003 prison guards had noted “visible injuries” on both applicants. The report concluded that the allegations from the Amnesty International’s report were “partly founded”: on the one hand, the use of force against the applicants had not been lawful, but on the other hand, their treatment by the police had not amounted to torture. The Inspectorate recommended the Ministry of Interior further to investigate this case, identify the persons who had used force, examine the reasons why the force had been used, and sanction those responsible as appropriate. It is not clear whether the Ministry of Interior did so. 6. On 22 October 2003 the applicants filed a criminal complaint alleging torture against unknown persons. The public prosecutor requested further information concerning this case from the Kruševac Police Station. 7. On 9 August 2004 the Inspectorate requested more information concerning the applicants’ treatment from the Kruševac Police Station. 8. On 13 January 2005, the applicants supplemented the criminal complaint and asked the public prosecutor to interview certain police officers. 9. On 7 March 2005 the public prosecutor received a report of the Kruševac Police Station. 10. On 18 April 2005 the Inspectorate again requested the Kruševac Police Station to provide information concerning the applicants’ treatment. 11. On 22 March 2005 the public prosecutor rejected the applicants’ criminal complaint and the applicants were informed of that fact on 24 March 2005. 12. On 16 June 2005 the chief of the Kruševac Police Station informed the Inspectorate that force had indeed been used against the applicants but that the use of force had been lawful. 13. On 17 June 2005, the applicants filed another criminal complaint, indicating the names of the alleged perpetrators for the first time. The criminal complaint was rejected on 20 January 2006 and the applicants were notified of that fact on 25 January 2006. The applicants had the right to pursue a subsidiary criminal prosecution (preuzeti krivično gonjenje) within eight days of the date that decision had been served on them by filing a request for an investigation (zahtev za sprovođenje istrage). The applicants did not take over the criminal prosecution. 14. On 7 June 2006, upon the applicants’ request, they received a summary of the Inspectorate’s report of 6 November 2003. 15. On 19 December 2006, following an order by the Information Commissioner, the applicants were served with a longer version of the Inspectorate’s report of 6 November 2003. 16. On 15 November 2004 both applicants were sentenced to prison sentences for organised crime. During the first-instance trial and in their appeal, the applicants maintained that they had been subjected to torture in police detention. 17. A hearing for their appeal was scheduled before a five-judge committee of the Supreme Court of Serbia for 15 and 16 September 2005. However, on 14 September the judge rapporteur in this case was arrested and charged with accepting money from one of the applicants to quash the first-instance judgment and release the applicants from pre-trial detention. Shortly after that arrest, one of the ministers in the Serbian Government publicly stated that five other judges of the Supreme Court of Serbia should have also been arrested. The President of the Supreme Court of Serbia then appointed another judge rapporteur and scheduled a hearing for 29 and 30 September 2005. 18. On 30 September 2005 one of the Belgrade newspapers published an article claiming that the new judge rapporteur was also under pressure from criminal cartels through her daughter. Her daughter then made a public statement refuting those allegations. 19. On 30 September 2005 the Supreme Court of Serbia changed the legal qualification of the applicants’ offence and upheld the remainder of the first-instance judgment. 20. The applicants appealed on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude) complaining that the judges dealing with their case had acted under pressure from the executive and the media and that they had therefore lacked independence. Additionally, the applicants claimed that the new judge rapporteur had had only 14 days to prepare a case which consisted of thousands of pages of material. The applicants submitted a statement by the second judge rapporteur in their case (from the criminal trial of the first judge rapporteur) according to which she had been obliged to read up to 20 hours per day. 21. On 24 March 2006, the Supreme Court of Serbia, in a different formation rejected the applicants’ appeal on points of law. The Supreme Court found that the new judge rapporteur had been appointed in accordance with the law and the fact that the trial had attracted significant attention from the media and general public did not mean that the court had acted under pressure. The applicants received that decision on 9 June 2006. 22. The Criminal Code 1977 (published in Official Gazette of the Socialist Republic of Serbia no. 26/77, amendments published in Official Gazette of the Socialist Republic of Serbia nos. 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. The relevant Article reads as follows: “Whoever acting in an official capacity ill-treats or insults another or otherwise treats such person in a humiliating and degrading manner, shall be punished with imprisonment from three months to three years.” 23. The Code of Criminal Procedure 2001 (published in the Official Gazette of the Federal Republic of Yugoslavia no. 70/01, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) was in force from 28 March 2002 until 15 January 2013. Most criminal offences (including ill-treatment by public officials acting in an official capacity) are subject to public prosecution, but some minor offences are only subject to private prosecution. Pursuant to Article 20 of the Code, the public prosecutor must prosecute when there is sufficient evidence that a named individual has committed a criminal offence which is subject to public prosecution. Article 61 of the Code provides that when the public prosecutor decides not to prosecute such an offence because of the lack of evidence, the victim of the offence may nevertheless start a subsidiary prosecution within eight days from the notification of the public prosecutor’s decision.