CASE OF MILENKOVIĆ v. SERBIA
Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice;Criminal offence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1969 and lives in Leskovac. 6. On 17 October 2006 the Leskovac police informed the local minor-offence judge and the public prosecutor’s office about a violent incident between the applicant and a certain R.C. that had occurred on 12 October 2006 in a neighbourhood of Leskovac. 7. By a decision of 6 November 2007 the misdemeanour court judge in Leskovac (sudija Opštinskog organa za prekršaje u Leskovcu) found that at about 5.30 p.m. on 12 October 2006 in Leskovac R.C. had verbally insulted the applicant’s children, and the applicant had then punched him several times on the head and injured him. The judge concluded that these actions had been in breach of public order and peace and had thus been contrary to Article 6(3) of the Public Order Act 1992 (see paragraph 21 below under Relevant domestic law and practice). The relevant part of the decision reads: “Defendant[s] R.C. ... and Momčilo Milenković are guilty in that at about 5.30 p.m. on 12 October 2006, in Subotička street in Leskovac, [the former first swore and insulted the applicant’s children], while the latter punched R.C. several times on the head and injured him ...” 8. Each of them was ordered to pay a fine in the amount of 4,000 Serbian dinars (RSD) plus RSD 700 for costs (at that time equivalent to approximately 60 euros (EUR) in total), which in the event of non-compliance would be converted into a prison term of eight days. 9. After an investigation had been conducted, on 4 April 2007 the Leskovac Public Prosecutor’s Office (“the LPPO”) charged the applicant with the criminal offence of inflicting grievous bodily harm on R.C. in connection with the above incident, contrary to Article 121 § 2 of the Criminal Code 1998. The LPPO, as well as the applicant and his family in the capacity of private prosecutors, lodged separate indictments against R.C. for several offences. All the indictments were joined in the same proceedings before the Leskovac Municipal Court. 10. In a judgment of 13 April 2011 the Leskovac Municipal Court found the applicant guilty as charged and sentenced him to three months’ imprisonment. R.C. was found guilty and fined for insulting the applicant’s family and causing minor bodily injuries to the applicant’s mother. The court ordered the applicant to pay RSD 14,739 in court costs, while each party was to cover its own costs and expenses. The relevant part of the decision reads: “Defendant Milenković Momčilo ... is guilty in that at about 4.00 and 4.30 p.m on 12 October 2006 in Subotička Street ... he punched [R.C.] on the left side of the face and, after knocking R.C. down, he continued punching him in the head, thereby causing him a number of grievous bodily injuries dangerous for life, such as: bruising of both eyelids (black eye), bruising of the left cornea, and nose abrasions ...” 11. The applicant appealed, arguing, inter alia, that he had already been punished in respect of the same incident by the Leskovac misdemeanour judge, with the result that the principle of ne bis in idem had been violated (see paragraph 18 below). 12. On 20 March 2012 the Niš Appeals Court upheld the judgment in respect of the applicant and dismissed the charges against R.C. as statute-barred. As regards the principle of ne bis in idem, the court held that the applicant had been found guilty of a misdemeanour against public order and peace in the misdemeanour proceedings, whereas he had been convicted of the criminal offence of grievous bodily harm in the criminal proceedings. According to the court, the descriptions of the acts sanctioned therefore clearly differed. 13. On 19 September 2012, the Leskovac Basic Court converted the prison sentence to house arrest without electronic monitoring. 14. On 29 November 2012 the Leskovac Basic Court amnestied the applicant at his request, finding that the conditions for a statutory amnesty were applicable (see paragraph 22 below). 15. In a subsequent constitutional appeal lodged on 25 May 2012 the applicant reiterated that he had been tried and punished twice for the same offence, in breach of Article 34 § 4 of the Constitution (see paragraph 13 below). 16. On 20 May 2013 the Constitutional Court, referring to the reasoning of the Niš Appeals Court as “fully acceptable from the constitutional point of view” (see paragraph 12 above), dismissed the applicant’s appeal as ill-founded. The decision of the Constitutional Court was served on the applicant’s representative on 29 May 2013.