CASE OF STANIMIROVIĆ v. SERBIA
Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi
5. The applicant was born in 1972. He is currently serving his sentence in Zabela Prison near Požarevac in Serbia. 6. On 9 February 2001 a couple were killed. 7. On 10 February 2001 at about 8 p.m. the applicant was arrested at his home in Grocka. He was taken to Smederevo police station and beaten up by police officers. He then confessed to having participated in the killing. 8. On 11 February 2001 the applicant was taken to Smederevo Prison. 9. On 13 February 2001 the applicant was taken to the investigating judge. He met his counsel there, who had meanwhile been appointed by the applicant’s wife, but he was not given the opportunity to talk with him in private. While the applicant confirmed his earlier confession, he complained to the judge that he had been beaten up by the police. The applicant was then examined at Smederevo Hospital. According to the medical report, he had a broken rib and bruises on his chest. 10. On 14 February 2001 the applicant was taken to the investigating judge again. His counsel was not present. The applicant met his counsel in private for the first time later that day. 11. On 17 February 2001 the applicant was returned to Smederevo police station and beaten up again. After having collapsed, he was taken to Smederevo Hospital. According to the medical report, he was concussed and had bruises on his head. The investigating judge was informed of the incident. 12. On 19 February 2001 the applicant appeared before the investigating judge again. His counsel was not present. 13. When the applicant was taken to the investigating judge for the fourth time on 16 March 2001, his counsel was present and he retracted his confession. 14. Following a criminal complaint lodged by the applicant’s counsel against unidentified criminal police officers, the public prosecutor obtained a report from Smederevo police station rejecting the applicant’s allegations. The public prosecutor also obtained the medical reports of 13 and 17 February 2001. On 24 September 2001 the public prosecutor decided not to prosecute and informed the applicant’s counsel of the possibility of starting a subsidiary prosecution within eight days. Counsel did not do so. 15. On 4 November 2002 the Smederevo District Court found the applicant and S.P. guilty of murder and sentenced each of them to forty years’ imprisonment. On 9 July 2003 the Supreme Court of Serbia quashed that judgment and remitted the case to the first-instance court for a retrial. It instructed the first-instance court to establish whether the applicant had been ill-treated by the police and whether any of his statements were therefore inadmissible. 16. At a hearing held on 13 May 2004, the applicant described his illtreatment in detail and named the alleged perpetrators for the first time. Counsel for S.P. then applied for the minutes of that hearing to be sent to the public prosecutor with a view to prosecuting the police officers named by the applicant. The public prosecutor, who was present at the hearing, raised an objection. She emphasised that a criminal complaint in that connection had been dismissed on 24 September 2001 and that her office had no intention of dealing with the same case again. Counsel for S.P. then applied for that prosecutor to be excluded from the proceedings. On 17 May 2004 the Smederevo District Chief Public Prosecutor rejected that application, but confirmed that the 2001 decision might be reconsidered in view of the new facts, notably the names of the alleged perpetrators. 17. On 27 December 2004 the Smederevo District Court found the applicant guilty of murder and S.P. of incitement to murder and sentenced each of them to forty years’ imprisonment. It held that the applicant had indeed been beaten at Smederevo police station. The applicant’s statements made there on 10 and 17 February 2001 were thus declared inadmissible. However, it regarded the statements which the applicant had made before the investigating judge on 13, 14 and 19 February as admissible. The court relied in that regard on an expert report prepared by a team of psychiatrists, stating that the applicant’s fear must have receded by the date of his appearance before the investigating judge. 18. The applicant appealed against the judgment of 27 December 2004. He maintained, among other grounds of appeal, that the admission of the statements which he had made before the investigating judge in February 2001 should have also been barred. On 13 May 2005 the Supreme Court of Serbia upheld the first-instance judgment. 19. The applicant appealed against the judgment of 13 May 2005. He repeated that the admission of the statements which he had made before the investigating judge in February 2001 should have also been barred. On 14 April 2006 the Supreme Court of Serbia, in a different formation, upheld the second-instance judgment. 20. On 3 November 2006 the applicant lodged a criminal complaint with the public prosecutor against six police officers in relation to the events of February 2001. On 18 January 2007 the public prosecutor decided not to prosecute. The reasons for that decision are unknown because the applicant was not informed thereof and the entire file was allegedly destroyed in early 2010 (that is, three years after the decision not to prosecute). 21. In March 2011 both the applicant and his counsel applied for the reopening of the criminal proceedings described above. On 17 March 2011 the Smederevo Higher Court rejected both applications. On 29 April 2011 the Belgrade Court of Appeal upheld the decision of 17 March 2011. 22. The Criminal Code 1977 (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 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 until 31 December 2005. The relevant Articles read as follows: “(1) Any person acting in an official capacity who uses force or threat ... in order to extort a confession or another statement from an accused, a witness, or another person, shall be punished with imprisonment of between three months and five years. (2) If extortion is aggravated by serious violence or results in particularly serious consequences for an accused in criminal proceedings, the offender shall be punished with imprisonment of at least three years.” “Any person acting in an official capacity who ill-treats, insults or humiliates another, shall be punished with imprisonment of between three months and three years.” 23. The Code of Criminal Procedure 2001 (Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) entered into force on 28 March 2002. Most criminal offences (including those mentioned above) 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 certain 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 lack of evidence, the victim of the offence may nevertheless start a subsidiary prosecution within eight days from the notification of that decision. The Code of Criminal Procedure 1977, which was in force until 28 March 2002, contained similar provisions (see Articles 18 and 60 thereof). 24. In accordance with Article 414 of the Code of Criminal Procedure 2001, as amended in September 2009, the reopening of a criminal trial may be sought where the Constitutional Court or an international court has found that the convicted person’s rights have been breached in the trial.