MIKULOVIĆ AND VUJISIĆ v. SERBIA
Inadmissible
Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
1. The applicant in the first case, Mr Boško Mikulović, is a Serbian national, who was born in 1955 and is currently serving a prison sentence in Zabela Prison near Požarevac in Serbia. He is represented before the Court by Mr Z. Ilijevski, a lawyer practising in Kragujevac, Serbia. 2. The applicant in the second case, Mr Predrag Vujisić, is a Serbian national, who was born in 1967 and is currently serving a prison sentence in Padinska Skela Prison near Belgrade in Serbia. He is represented before the Court by Mr M. Kovačević, a lawyer practising in Niš, Serbia. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 17 December 1992 the applicant committed a murder. 5. On 20 June 2003 the Kruševac District Court (Okružni sud u Kruševcu, hereinafter “the District Court”) imposed a forty-year prison sentence for murder on the applicant, under the Criminal Code of Serbia. 6. On 20 November 2003 the Supreme Court of Serbia (Vrhovni sud Srbije) quashed that judgment and remitted the case to the first-instance court for retrial. 7. On 21 May 2004 the District Court again sentenced the applicant to forty years’ imprisonment for murder. 8. On 4 November 2004 the Supreme Court of Serbia quashed that judgment and remitted the case to the first-instance court for retrial. 9. On 5 August 2005 the District Court again sentenced the applicant to forty years’ imprisonment for murder, finding as follows: “The court did not accept the defence’s argument that, when it comes to the question of the applicable law, the law which was in force at the time of the commission of the crime ought to have been applied, as the Amendments to the Criminal Code of Yugoslavia (Zakon o izmenama i dopunama Krivičnog zakona Jugoslavije) had entered into force on 17 November 2001, before the accused was sentenced ... It is clear that with the entry into force of these amendments, the death penalty and a twenty-year prison sentence can no longer be imposed. Furthermore, the Amendments to the Criminal Code of Serbia (Zakon o izmenama i dopunama Krivičnog zakona Republike Srbije) ..., which entered into force on 9 March 2002, removed Article 2 of the Code and as a result, a forty-year prison sentence is prescribed for the crimes for which the death penalty had been previously prescribed ... it is therefore clear that upon entry into force of the Amendments to the Criminal Code of Yugoslavia (17 November 2001), the death penalty and the sentence of twenty years’ imprisonment were removed from the range of criminal sanctions, and that the Criminal Code of Serbia of 9 March 2002 prescribed a forty-year prison sentence for that particular crime.” 10. On 23 November 2005 the Supreme Court of Serbia upheld that judgment. 11. On 19 May 2006 the Supreme Court of Serbia, in another formation, changed the legal classification of the applicant’s offence to aggravated murder and upheld the remainder of the judgment. 12. On 28 May 2007 the Supreme Court of Serbia rejected an appeal on points of law lodged by the applicant. The applicant received that decision on 8 August 2007. 13. On 5 October 2000 the applicant committed a murder. 14. On 22 August 2005 the Vranje District Court (Okružni sud u Vranju) sentenced the applicant to forty years’ imprisonment for murder, under the Criminal Code of Serbia. 15. On 22 December 2005 the Supreme Court of Serbia quashed that judgment and remitted the case to the first-instance court for retrial. 16. On 13 November 2006 the Vranje District Court again sentenced the applicant to forty years’ imprisonment for murder. 17. On 25 September 2007 the Supreme Court of Serbia upheld that judgment. 18. On 5 September 2008 the Supreme Court of Serbia, acting as a third-instance court, upheld the judgment. In its reasoning on the question of the applicable law the Supreme Court found that the lower courts had correctly applied the more lenient law by sentencing the applicant to a forty-year prison sentence. The Supreme Court stated: “... the Criminal Code of Serbia prescribed the death penalty for the crime in question, and the death penalty, contrary to the arguments in the appeal, had not been abolished at any stage during which said law had been in force ... [T]herefore, the [new] Criminal Code should be applied with regard to the crime in question as the more lenient law, which it indeed is, as a prison sentence from thirty to forty years is more lenient than the death penalty ...” 19. On 25 March 2010 the Supreme Court of Cassation rejected an appeal on points of law lodged by the applicant. The Supreme Court repeated that the death penalty remained in the Criminal Code of Serbia during the period between 9 November 2001 and 1 March 2002, when it had been replaced by a forty-year prison sentence. In its reasoning the said Court stated: “... the chronology of the changes of the criminal law points to an evident continuity in replacing the death penalty with the prison sentences ...” 20. Having been served with the Supreme Court of Cassation’s judgment the applicant lodged a constitutional appeal with the Constitutional Court of Serbia. Relying on Article 7 of the Convention he complained that the most lenient criminal law provision had not been applied. The applicant maintained that during the period between 9 November 2001 and 1 March 2002 the courts could only have sentenced him to a fifteen or twenty years’ imprisonment and that, therefore, the law in force during that time had been the most lenient. 21. On 7 February 2013 the Constitutional Court of Serbia rejected the applicant’s constitutional appeal. In its reasoning, the Constitutional Court referred to the detailed reasoning in its decision concerning the same issue in another case involving different appellants (Už. 969/09, see paragraph 33 below). 22. At the time the applicants committed the crimes in question, the general provisions of the Federal Criminal Code defined which penalties were prescribed on both republic and federal levels. The death penalty was prescribed as one of possible penalties for murder in the Criminal Code of Serbia. 23. The Constitution of the Federal Republic of Yugoslavia (Official Gazette of the Federal Republic of Yugoslavia no. 1/92) was in force from 27 April 1992 until 4 February 2003. 24. The relevant provision of the Constitution reads as follows: Human life is inviolable. The death penalty cannot be imposed for crimes proscribed in the federal criminal code. “ 25. The Constitution of the Republic of Serbia (Official Gazette of the Republic of Serbia no. 1/90) was in force from 28 September 1990 until 8 November 2006. 26. The relevant provision of the Constitution reads as follows: Human life is inviolable. The death penalty can exceptionally be prescribed and imposed only for the most heinous forms of severe criminal acts. ” 27. The Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 (Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, in the Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01, and in Official Gazette of the Republic of Serbia no. 39/03) was in force until 1 January 2006. 28. The relevant provisions of the Code provided as follows: No punishment or other criminal sanction may be imposed on anyone for an act which, prior to being committed, was not defined by law as a criminal act, and for which a punishment has not been prescribed by statute. 1. The law that was in force at the time a criminal act was committed shall be applied to the person who has committed the criminal act. 2. If the law has been altered one or more times after the criminal act was committed, the less severe law in relation to the offender shall be applied. ... Provisions of the General Part of this Code are applicable to all criminal acts defined in the laws of the federation, republics and autonomous provinces. ... The following punishments may be imposed on the perpetrators of criminal acts: 1. capital punishment; 2. imprisonment; 3. a fine; 4. confiscation of property. ... (1) The term of imprisonment may not be shorter than fifteen days nor longer than fifteen years. (2) The court may impose imprisonment for a term of twenty years for criminal acts eligible for the death penalty.” 29. On 17 November 2001 Article 34 of this Criminal Code was amended and the death penalty was deleted from the list of available penalties. It was amended to read: (1) The term of imprisonment may not be shorter than thirteen days nor longer than fifteen years. (2) A prison sentence of forty years may be prescribed for the most serious criminal acts or for the most heinous forms of severe criminal acts. This sentence may only be prescribed as an option alongside a prison sentence of fifteen years [it cannot be a stand-alone penalty] and may not be imposed on a person who was under the age of twenty-one at the time of commitment of the criminal act concerned.” 30. The Criminal Code of the Socialist Republic of Serbia 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. 31. The relevant provisions of the Code provided as follows: Whoever causes the death of another shall be punished with imprisonment for a minimum of five years. Imprisonment for a minimum of ten years or the death penalty [is prescribed for] whoever: 1) causes the death of another in a cruel or heinous manner; 2) causes the death of another by callous violent behaviour; 3) causes the death of another and with premeditation endangers the life of a third person; 4) causes the death of another for gain, to commit or conceal another offence, for callous revenge or other base motives.” 32. On 9 March 2002 this Criminal Code was amended and the death penalty was replaced with a forty-year prison sentence. 33. On 24 March 2010, in a similar case to that of the applicants, the Constitutional Court rejected a constitutional appeal of D.N. (Už. 969/09). In its decision, the Constitutional Court, inter alia, stated: “Since the death penalty was prescribed in the Criminal Code of the Republic of Serbia continuously until 1 March 2002, it also was in force at the time of the commission of the crime in question, and was also prescribed for the crime the applicant had been accused and convicted of, the Constitutional Court found that the [new] Criminal Code was without doubt more lenient for the appellant, as it did not prescribe the death penalty as the heaviest penalty in the system of criminal sanctions. According to the Constitutional Court’s assessment, any prison sentence is more lenient than the death penalty, because life is of fundamental value to each human being, and it is subject to special protection in both the constitutional and criminal legal spheres. For all the above mentioned reasons, the Constitutional Court finds the rights of the appellant were not violated as guaranteed by the provisions of Article 34 § 2 of the Constitution.” 34. On 25 January 2008 the Supreme Court of Cassation of Serbia (Kzp Ok 3/07) took the view that the death penalty had ceased to be applicable in the republic upon the entry into force of the Amendments to the Criminal Code of Serbia of 9 March 2002, and that this penalty was abolished at that time and replaced with a forty-year prison sentence. The court held: “... in the Criminal Code of Serbia, the death penalty continued to be in force during the period between 9 November 2001 and 1 March 2002 when, by the mentioned amendments, it was definitively abolished and replaced with a forty year prison sentence.”