CASE OF ĐOKIĆ v. SERBIA
Violation of Art. 6-1;Just satisfaction dismissed (out of time)
András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
5. The applicant is a former police officer who was born in 1970 and is currently serving a prison sentence in the Niš Penitentiary (Kazneno-popravni zavod u Nišu). 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 26 May 2005 the District Court in Leskovac found the applicant guilty of murdering his former wife, and sentenced him to eleven years’ imprisonment. 8. On 18 October 2005 the Supreme Court quashed this judgment and ordered a retrial. 9. On 16 December 2005 the District Court in Leskovac again convicted the applicant and sentenced him to eleven years’ imprisonment. In so doing, it provided extensive reasoning. 10. On 20 March 2006 the Supreme Court upheld this judgment. The appeal bench included judge M.C. and the applicant received the judgment on 26 May 2006. 11. On 26 June 2006, through the prison authorities and as evidenced by their certificate, the applicant filed an appeal on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude). The Supreme Court received this appeal on 5 July 2006, as certified by its stamp of even date. 12. On 31 May 2007 the Supreme Court noted that the appeal had been lodged on 5 July 2006 and consequently had to be rejected as out of time (neblagovremen; see paragraph 20 below). The Supreme Court’s bench again included judge M.C. and the applicant received this decision on 21 September 2007. 13. The relevant domestic provisions are contained in the Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia 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 and 49/07). 14. Article 40 (5) provides that a judge may not sit in a case when he or she has already taken part in the adoption of a decision before a lower court or before “the same court” should its decision subsequently “be appealed”. 15. Article 41 § 1 provides, inter alia, that as soon as a judge discovers this ground for recusal, he or she shall cease dealing with the case and request the president of the court to appoint another judge in his or her stead. 16. Article 182 § 4 provides, inter alia, that a defendant who has been sentenced to a prison term shall have the right to file his submissions through the prison authorities, thereby interrupting any time-limits. 17. Article 183 § 3 provides, inter alia, that a time-limit set in months shall expire by the end of the day, of the last month, which corresponds by number to the date when the running of the time-limit commenced. 18. Article 419 provides, inter alia, that the competent public prosecutor “may” (može) file a Request for the Protection of Legality (zahtev za zaštitu zakonitosti) against a “final judicial decision”, on behalf of or against the defendant, if the relevant substantive and/or procedural “law has been breached” (ako je povređen zakon). 19. On the basis of the above request, under Articles 420, 425 and 426, the Supreme Court may uphold the conviction at issue or reverse it. It may also quash the impugned judgment, in its entirety or partly, and order a re-trial before the lower courts. If the Supreme Court, however, finds that there has been a violation of the law in favour of the defendant, it shall only be authorised to declare so but shall leave the final judgment standing. 20. Article 428 provides, inter alia, that a defendant who has been found guilty and sentenced to an effective prison term at first and second instance shall have the right to file an appeal on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude) with the Supreme Court within one month as of the date of receipt of the judgment rendered on appeal. 21. In accordance with Articles 432 and 425 and 426, inter alia, the Supreme Court shall, should it accept an appeal on points of law, have the power to overturn the impugned judgment or quash it and order a retrial before the lower courts. It shall also be able to do so if there are serious doubts as to the veracity of the decisive facts established in the impugned decision and this impinges upon the proper application of the relevant law. 22. In 2009 amendments to the above Code of Criminal Procedure (Zakon o izmenama i dopunama Zakonika o krivičnom postupku, published in OG RS no. 72/09) removed the appeal on points of law as an existing domestic remedy. Article 146 § 1 of this Act, however, provides that in respect of all defendants who had already lodged their appeals on points of law before the entry into force of these amendments it is the “repealed provisions” that shall be applicable. 23. Lastly, in its decision of 17 September 2009 the Constitutional Court held that a Request for the Protection of Legality is not a remedy which needs to be exhausted before one may file an appeal with the Constitutional Court, the reason being, inter alia, that it was only the public prosecutor who could have filed such a request on behalf of the defendant and, further, that the former had full discretion in respect of whether to do so (Už-1233/2009).