CASE OF VRENCEV v. SERBIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award
András Sajó;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
6. The applicant was born in 1968 and lives in Pančevo, Serbia. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 16 November 2003, the applicant was stopped and searched by a police officer at the main bus station in Belgrade and a packet containing 4.13 grams of cannabis was found on his person. 9. He was then taken to a police station but was released after a short period of time. Whilst in custody, an on-duty police officer issued a receipt confirming seizure of the cannabis in question (potvrda o privremeno oduzetim predmetima). This receipt was signed by the applicant and the officer and contained the applicant’s registered home address – M.K. Street no. 32, Pančevo. 10. In a subsequent incident report of the same date, however, the officer appears to have made a mistake by stating that the applicant’s address was M.K. Street no. 30 rather than no. 32. This report was neither seen nor signed by the applicant. 11. Having found his number in a telephone directory, on 6 July 2004 the police contacted the applicant’s father by telephone. He in turn informed the applicant that the police were looking for him. The applicant subsequently called the police and was told that he needed to come to the station in order to pick up the court summons. Upon arrival at the station, he was arrested and placed in detention. 12. It subsequently became clear that a detention order had been issued by the District Court (Okružni sud) in Belgrade on 29 June 2004, as part of the criminal proceedings brought against the applicant regarding the cannabis seizure of 16 November 2003. In its reasoning, the court first explained that the applicant had not appeared at the hearing scheduled for 17 March 2004 and noted that the return receipt attached to its summons had stated that he “was unknown at M.K. Street no. 30”. Secondly, the applicant had failed to appear at the following hearing scheduled for 20 May 2004 and the police, who had been ordered to serve the summons, had reported on 20 April 2004 that a neighbour had confirmed that the applicant had not been living at the address in question since 1999. Thirdly, on 20 April 2004 the police had also run a search in their database and had made additional inquiries, confirming that, as of 1986, the applicant’s registered residence was indeed M.K. Street no. 30, but could not discover any information concerning his current whereabouts. Finally, the court concluded that there was a sufficient factual basis to indicate that the applicant was hiding and/or in flight and had therefore ordered his detention. (It must, however, be noted that the neighbour’s statement and the original police report of 20 April 2004 were cited erroneously by the District Court and that in fact both had referred to M.K. Street no. 32 only, as the applicant’s registered residence, there being no mention of M.K. Street no. 30.) 13. On 29 June 2004 the District Court had also adopted a separate decision requesting the police to issue a wanted notice (poternica) and arrest the applicant. Therein the applicant’s address had again been stated as M.K. Street no. 30. 14. Various other documents successively referred to both addresses. Thus the District Court’s letter sent to the police on 20 May 2004 referred to M.K. Street no. 32 while all court summonses, the criminal complaint of 11 December 2003 (krivična prijava) and the indictment (optužni predlog) of 26 December 2003 consistently stated the applicant’s address as M.K. Street no. 30. 15. Throughout this time the applicant’s identity card, issued by the police on 30 August 2000, and his residence registration remained unchanged, stating his address as M.K. Street no. 32, Pančevo. 16. On 7 July 2004 the applicant’s lawyer filed an appeal by telegram against the District Court’s detention order of 29 June 2004. Therein he stated that the applicant had never lived at M.K. Street no. 30 and pointed out that his registered residence was in fact M.K. Street no. 32. The applicant consequently had no knowledge of the criminal proceedings against him; nor could he have deliberately avoided receiving the court summons. 17. On 8 July 2004 the applicant’s lawyer supplemented this appeal with additional written arguments requesting that the impugned detention order be revoked and his client released. In particular, he noted that the applicant had gone to the police station “of his own free will” as soon as he had found out that they were looking for him. Upon arrival at the police station, he had been arrested and it was then that he had first found out about the criminal charges against him. 18. On 12 July 2004 the Supreme Court (Vrhovni sud Srbije) rejected the appeal. It did so without an oral hearing. In its ruling the Supreme Court affirmed the reasons for detention given by the District Court and further held that there was no evidence in the case file that the applicant’s correct address was indeed M.K. Street no. 32. On the contrary, police reports suggested that “the applicant’s residence throughout the proceedings had remained unknown”. 19. On 14 July 2004 this decision was received by the applicant’s lawyer. 20. On 16 July 2004 he filed a motion with the District Court, seeking the applicant’s release on bail or, alternatively, that his detention be replaced with a prohibition on leaving his place of residence until the conclusion of the criminal proceedings. The lawyer further noted that the applicant’s detention had been ordered due to the court’s error in the establishment of his true home address and concluded by requesting that a hearing in the case be scheduled urgently. 21. The District Court appears not to have considered this motion. 22. Following a hearing on 26 July 2004, the District Court found the applicant guilty of illicit possession of narcotics and fined him in the amount of 10,000 Serbian dinars (at the time approximately 128 euros). 23. In a separate decision of the same date the District Court released the applicant from detention. It held, inter alia, that “the current phase of the criminal proceedings had been completed” and that “the defendant had provided correct information about his present address”. 24. On 24 September 2004 the applicant filed a complaint with the Court of Serbia and Montenegro (Sud Srbije i Crne Gore). 25. Following the communication of the present application to the respondent State, the Government produced two signed witness statements, taken by the police on 23 January 2006, wherein the applicant’s neighbours, both residing at M.K. Street no. 32, confirmed that the applicant had indeed not been living there for years. One of them further specified that he had already told the police as much in April 2004, while the other recalled that the applicant had not been living at the address in question since 1999. 26. Articles 10 and 16, taken together, stated that the “provisions of international treaties on human and minority rights applicable in ... [the State Union of] ... Serbia and Montenegro shall be directly enforceable” and, further, that “the ratified international treaties” shall “have precedence” over domestic legislation. 27. Article 7 provided that “international treaties in force in the State Union [of Serbia and Montenegro] shall be guaranteed by this Charter and be directly applicable”. 28. Article 14 § 8 provided that a person “who has been deprived of his liberty unlawfully [nezakonito lišen slobode] shall have the right to compensation”. 29. Article 23 § 4 provided, inter alia, that a person who has been deprived of his liberty, “without any basis [bez osnova] ... shall have the right to ... compensation ...”. 30. The relevant provisions of this Code provide as follows: “The courts, as well as State bodies taking part in the criminal proceedings, shall establish truthfully and comprehensively all facts which are of importance for the adoption of a lawful decision. The courts and State bodies shall examine and establish with equal care facts which incriminate the defendant, as well as those in his favour.” “First instance courts sit in a panel of three judges [“Judicial Panel”] when deciding on appeals against rulings of the investigating judge and other rulings when it is so prescribed by this Code ... ” “The ... [defendant’s participation in the criminal proceedings may be secured by means of sending] ... summonses, his forcible production in court, the issuance of a prohibition of his leaving his place of residence, [as well as] through the imposition of bail or detention. The competent court shall ... [attempt not to apply] ... a more severe measure ... [in order to secure the defendant presence] ... if a less severe measure may achieve the same purpose. These measures shall be vacated ex officio when the reasons for their application have ceased to exist, or shall be replaced with other less severe measures once the conditions are met.” “The defendant is obliged to immediately inform the court of any change of address, as well as of his intent to change his abode. The defendant shall be informed of this obligation at his first hearing ... [or] ... upon receipt of the indictment ... and warned about the consequences ... [of any non-compliance] ... provided for under the Code.” “ ... [The court shall order the forcible production of the defendant before it if the defendant] ... could not be properly summoned and it is obvious from the facts that he has been avoiding receipt [of court summonses].” “If there are circumstances indicating that the defendant might abscond, hide, go to an unknown place or abroad, the court may, by a reasoned decision, prohibit him from leaving his place of residence. ... In the course of the [judicial] investigation the [measure] referred to in [paragraph 1] ... of this Article shall be ordered and vacated by the investigating judge, and when the indictment is preferred by the President of the Chamber. ... Parties may appeal the ruling ordering, extending or vacating ... [the said measure] ... and the Public Prosecutor may also appeal the ruling rejecting his motion for [its] application. The Judicial Panel ... shall decide on the appeal ... [within a period of three days] ... The appeal does not stay the execution of the ruling. ... ” “The defendant who is to be or has already been detained based only on circumstances indicating that he will abscond ... may remain at large or may be released providing that he personally, or another person on his behalf, gives bail guaranteeing that he shall not abscond until the conclusion of the criminal proceedings and the defendant himself promises that he shall not hide or change his place of residence without permission.” “The decision on bail before and in the course of a [judicial] investigation shall be rendered by the investigating judge. After the indictment is preferred the decision on bail shall be rendered by the President of the Chamber and [subsequently] at the main hearing by the Chamber itself.” “Detention may be ordered only in accordance with the conditions provided by this Code and only if the same purpose cannot be achieved by another measure. The authorities taking part in the criminal proceedings ... are bound to proceed with particular urgency if the defendant is in detention. In the course of the ... proceedings, detention shall be vacated as soon as the grounds therefor have ceased to exist.” “Detention shall be ordered by a decision of the competent court. ... A decision on detention shall be served on the person to whom it relates at the moment of his deprivation of liberty, but no later than within 24 hours ... [as of this moment] ... A detained person may file an appeal against the decision on detention with the Judicial Panel within 24 hours as of the moment of its receipt. The appeal, the decision on detention and other files shall immediately be forwarded to the Judicial Panel. The appeal shall not stay the execution of the [impugned] decision. ... In the situation referred to ... [above,] ... the Judicial Panel shall rule on the appeal within 48 hours.” “Against decisions [rešenja] ... adopted by courts acting at first instance, the parties and persons whose rights have been breached may file an appeal, unless this Code expressly provides that an appeal shall not be permitted. ... There shall be no appeal against a decision [rešenje] of the Supreme Court of Serbia, unless provided otherwise by this Code.” “An appeal against a decision [rešenje] adopted by a court at first instance shall be decided at a session held before the court of second instance, unless provided otherwise by this Code.” “For the purposes of unhindered conduct of the criminal proceedings [in respect of crimes punishable by a fine or imprisonment of up to three years,] detention may be ordered against a person who is under reasonable suspicion of having committed a criminal offence if: (1) he is in hiding or his identity cannot be established or if there are other circumstances clearly indicating a danger of flight...” “[The following persons shall be] ... entitled to recover ... [any] ... damages ... [suffered] ... (1) [a person] who was detained but against whom no criminal proceedings were instituted, where these proceedings were discontinued by a final ruling, where ... [the person in question] ... was [ultimately] acquitted by a final judgment or where the charge against him was rejected; ... (3) [a person] who due to an error committed or an unlawful action undertaken by a [State] body has been deprived of his liberty in the absence of any legal basis [neosnovano lišeno slobode] ... ” 31. The person requesting bail, under Article 137, “does not have to ... specify the amount of bail” to be posted (see Komentar Zakonika o krivičnom postupku, Prof. dr Tihomir Vasiljević and Prof. dr Momčilo Grubač, IDP Justinijan, Belgrade, 2005, p. 247). 32. Parties to the proceedings “shall not be informed about ... [the session referred to in Article 401 § 1 of the Criminal Procedure Code] .., including the State Prosecutor ... [who shall] .., prior to the session, be provided with the case file and shall submit his proposal ... [to the court] ... in writing” (see Komentar Zakonika o krivičnom postupku, cited above, pp. 705-706). 33. Articles 6 § 1, 8 § 1, 14 and 20 provide, inter alia, that citizens must inform the police about any change in their address, within eight days as of their moving, which information shall then be entered into an official register. 34. Articles 199 and 200 of the Obligations Act provide, inter alia, that anyone who has suffered fear, physical pain or, indeed, mental anguish as a consequence of a breach of his “personal rights” (prava ličnosti) is entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts, as well as to request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction. 35. The relevant provisions concerning the Court of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16, ECHR 2006...).