CASE OF RANĐELOVIĆ AND OTHERS v. MONTENEGRO
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)
Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
6. The applicants are the next-of-kin of several Roma who died or disappeared in the circumstances described below. 7. On the night of 15 August 1999 around seventy Roma boarded the boat “Miss Pat” on the Montenegrin coast with the intention of reaching Italy. A few hours later the boat sank owing to the large number of passengers. 8. By 30 August 1999 one of the passengers had been found alive on the Montenegrin shore, and thirty-five bodies had been found in the sea, thirteen of which were identified by their relatives. The forensic specialists who had performed autopsies on the bodies by 30 August 1999 stated that the cause of death could not be established with certainty on the basis of autopsies alone. In their opinion, however, the cause of death was drowning. 9. On 1 September 1999 the Court of First Instance (Osnovni sud) in Bar initiated a formal judicial investigation (rješenje o sprovođenju istrage) against seven individuals on suspicion of illegally crossing the State border in connection with reckless endangerment. 10. By 21 October 1999 the investigating judge had (a) questioned two suspects who were available to the authorities at the time, as well as thirty other individuals in relation to the incident, including the eleventh applicant; (b) requested that some other witnesses be questioned by the relevant authorities in Serbia; and (c) asked for the autopsy reports, an expert opinion on the capacity of the boat and a report on the weather conditions on the night of the incident. The eleventh applicant was questioned on 10 September 1999. She stated that she had been living with her brother and sister-in-law and their children in Kosovo, but that her brother and sister-in-law had decided to go to Montenegro. They had not called her from Podgorica or mentioned that they had intended to go to Italy. She also stated that she had not recognised them amongst the bodies found, but had recognised her brother’s arm in one of the photographs shown to her during questioning. Being illiterate, she had “signed” the minutes of the hearing by giving a fingerprint. 11. On 21 October 1999 the State prosecutor in Bar lodged an indictment with the Court of First Instance in Bar against the seven suspects. 12. On 29 October 1999 the court decided that it lacked territorial competence to deal with the case and transferred it to the Court of First Instance in Kotor. On 6 December 1999 the High Court (Viši sud) in Podgorica declared that the court in Bar was territorially competent to process the case and the case was returned. 13. By the end of 2002 the court in Bar had decided that two defendants still at large would be tried in their absence and appointed representatives for them. The remaining five defendants appeared before the court. 14. Between 25 December 2002 and 24 September 2003 ten trial hearings (glavni pretres) were scheduled, five of which took place. Four were adjourned because some of the defence lawyers, defendants, witnesses and an interpreter did not attend court; there is no information in the case file about one of the hearings. During the hearings that did take place, the court questioned four defendants and eleven witnesses. 15. On 24 September 2003 the court decided to recommence the trial hearing due to the passage of time. By 14 April 2004 ten hearings had been scheduled, six of which took place. Four were adjourned because one of the defence lawyers and some of the witnesses did not attend court. During the hearings that did take place, the court read out the indictment again, questioned four defendants and sixteen witnesses, including the eleventh applicant, and read out the earlier statements made by the witnesses; the fifth defendant chose to remain silent. The eleventh applicant was heard on 8 October 2003. She stated that she had come to Podgorica with her brother and his family and had had no idea that her brother and his wife had intended to go to Italy. When asked to explain the differences between that and her previous statement of 10 September 1999, she stated that she was certain that they had all been together since they had all been living together in one tent. She also confirmed that she was illiterate. 16. On 14 April 2004 the Supreme State Prosecutor (Vrhovni državni tužilac) in Podgorica instructed the State prosecutor in Bar to specify the indictment in terms of the facts and legal classification of the criminal offences, after which the court in Bar would declare that it lacked competence to deal with the case and would transfer it to the High Court in Podgorica (hereinafter “the High Court”), as the competent court to deal with it. Accordingly, the indictment was amended and the case file transferred to the High State Prosecutor (Viši državni tužilac) and the High Court. 17. On 26 May 2004 the High State Prosecutor requested that an investigation be opened (zahtjev za sprovođenje istrage) against the same seven people and another individual, Z, on suspicion of committing reckless endangerment. 18. By 20 October 2004 the High Court had questioned four of the defendants, while the fifth had chosen to remain silent. It also ordered that the remaining three defendants be brought before the court. 19. On 11 November 2004 an investigating judge of the High Court decided to initiate a formal judicial investigation against the eight individuals, a decision which was upheld by the High Court on 25 November 2004. 20. On 25 February 2006 the High State Prosecutor urged the investigating judge to finish the investigation. 21. On 28 March 2006 an expert witness issued an opinion on the capacity of the boat. 22. On 31 October 2006 the High State Prosecutor charged eight defendants with reckless endangerment under Article 338 § 2 in connection with Article 327 §§ 1 and 3 of the Criminal Code (see paragraphs 43-44 below). 23. Between 24 and 28 November 2006 the indictment was served on four of the defendants. 24. On 15 January 2007 the president of the chamber informed the president of the High Court that a trial hearing could not be scheduled yet as the indictment had not yet been served on all the defendants. 25. By 15 February 2008 the High Court had issued a national arrest warrant (potjernica) against one of the defendants, and had attempted to serve one on the other three, one of whom was in detention in Podgorica at the time. The other two were based in Serbia and Bosnia and Herzegovina respectively. 26. On 3 April 2008 the High Court rejected the indictment against Z (the defendant based in Serbia), a decision which was upheld by the Court of Appeal on 26 May 2008. 27. By 28 September 2009 the High Court had decided that the two defendants at large, one of whom was based in Bosnia and Herzegovina, would be tried in their absence. 28. At the first trial hearing on 28 September 2009 one of the defendants, X, stated that he was illiterate and did not understand the indictment. At the request of his lawyer the hearing was adjourned until further notice, so that the indictment could be translated into Romani. By 31 October 2009 the translation of the indictment into Romani had become available. 29. In the course of 2010 seven hearings were scheduled. One was held on 8 October 2010, during which the indictment was read out and four defendants were heard, the fifth having chosen to remain silent. Six hearings scheduled for 5 February, 29 April, 4 June, 2 July, 17 November and 17 December 2010 were adjourned because some of the defendants, defence lawyers, the interpreter for Romani and a witness did not attend court. 30. On 25 January 2011 another judge of the High Court took over the case. In the course of 2011 eight hearings were scheduled, seven of which were adjourned: (a) three because there was no permanent court interpreter for Romani; (b) two because the defence lawyers and witnesses did not attend court; (c) one because one defendant and several defence lawyers did not attend court and an interpreter had not yet been appointed; and (d) one because of changes to the Criminal Procedure Code, which made the relevant court panel incomplete. One hearing was held on 21 November 2011, during which four defendants were heard and their earlier defence statements made in 1999, 2003, 2004 and 2010 read out. The fifth defendant chose to remain silent. 31. In the course of 2012 seven hearings were scheduled, two of which were adjourned because one defendant, a defence lawyer, some of the witnesses, including the seventh applicant, and/or the interpreter did not attend court. Five hearings were held, two of which by 24 September 2012, when several witnesses were heard. On 24 September 2012 the trial hearing was recommenced due to “the passage of more than three months”. During that hearing and the subsequent two hearings four defendants and several witnesses were heard again, and a number of written documents were read out, including the indictment, the defendants’ earlier statements and witness statements from 1999, 2003 and 2012, reports by the Kotor and Budva police directorates (odjeljenja bezbjednosti), as well as information provided by the Radio and Television of Montenegro and the Bar Public Information Centre. The fifth defendant remained silent. 32. In the course of 2013 nine hearings were scheduled, five of which were adjourned because one of the defendants, two lawyers, an expert witness, a judge, and/or the interpreter did not attend. The lawyers were fined 500 euros (EUR) for their unjustified absence. By 18 December 2013 three hearings had been held, during which one expert witness was heard, and a number of other pieces of documentary evidence were read out, such as an earlier statement of another expert witness, earlier statements of other witnesses from 1999, 2003 and 2004, including the statements of the eleventh applicant, autopsy reports and reports from the Port of Bar of 1995 and 1998 relating to the boat. On 18 December 2013 the trial hearing was recommenced due to the passage of time. Four defendants and one of the expert witnesses were heard and their earlier statements read out. 33. In the course of 2014 five hearings were scheduled, two of which were adjourned because the interpreter and one of the expert witnesses did not attend court and because one defendant was justifiably absent. By 4 June 2014 one hearing had been held, at which earlier statements of witnesses, including the eleventh applicant’s statements, official reports, autopsy reports and experts witness statements were read out. On 4 June 2014 the trial hearing was recommenced due to the passage of time. At that and the subsequent hearing held in 2014 the court read out the indictment, the defendants’ earlier statements and some witness statements, including the eleventh applicant’s, as well as other written evidence. One of the witnesses was also heard. 34. On 24 July 2014 the High Court acquitted all the accused for lack of evidence. On 10 November 2014 the High State Prosecutor appealed against that judgment. There is no information in the case file as to the outcome of the appeal. 35. On an unspecified date prior to 7 December 2009 the Roma Centre complained to the Ombudsman, asking for the criminal proceedings to be expedited and the responsible persons punished, as well as for a DNA analysis of the bodies which had been buried. 36. On 7 December 2009 the Ombudsman issued a report in this regard noting, in substance, that the investigation had lasted for more than seven years and that ten years after the impugned event the criminal proceedings had not yet been terminated, which was unjustified. He recommended that the High Court undertake all necessary steps to terminate the proceedings as soon as possible. 37. On 21 December 2010 the Ombudsman enquired what had been done in the meantime. The judge in charge informed him of the hearings scheduled between October and December 2010. 38. On 19 August 1999 the only surviving passenger was found guilty of boarding the boat on 16 August 1999 with the intention of illegally crossing the border to Italy and was fined by the Misdemeanour Court (Sud za prekršaje) in Kotor. 39. In the course of 2002 a number of family members of those who had disappeared, two of them applicants in the present case, urged that the proceedings at issue be expedited. Some of them claimed that their next-of-kins were alive but had been trafficked. It appears that some others also hoped that their family members might still be alive. 40. On 15 June 2011 the president of the High Court requested the Ministry of Justice to appoint a permanent court interpreter for Romani as soon as possible, stressing that one of the reasons for the criminal proceedings in question having “lasted too long” had been the absence of an adequate interpreter for Romani. 41. It would appear that on several occasions the Roma Centre requested the High Court to expedite the proceedings, and that on 16 August 2010 it issued a statement that the investigation had not been effective. 42. The eleventh applicant’s initial representative submitted an authority form signed by her. He also specified that her two sons, two daughters-in-law and five grandchildren had died or disappeared in the impugned event.