VIDAKOVIĆ v. MONTENEGRO
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
1. The applicant, Mr Duško Vidaković, is a Montenegrin national, who was born in 1964 and lives in Bar. He is represented before the Court by Mr M. Mirović, a lawyer practising in Bar. 2. On 8 September 1987 the applicant, a bus driver, was involved in a car accident in which two people died. 3. On 17 August 1988 he was charged with a serious traffic offence. 4. On 11 November 2002, after two remittals, the Court of First Instance (Osnovni sud) in Kotor found the applicant guilty in his absence and sentenced him to two years of imprisonment. On 23 September 2004 the High Court (Viši sud) in Podgorica upheld this judgment. 5. It transpires from the case-file that on various occasions the applicant had relied on his health and an alleged trip to Italy as reasons for not appearing at some hearings, had dismissed his representative, had challenged judges, and had registered a false address as his address of residence. 6. On an unspecified date between 23 September 2004 and 28 February 2005 the above judgments were transmitted to the Court of First Instance in Bar for enforcement against the applicant, which is when the applicant learned about them. 7. On 22 March 2005 the Court of First Instance in Kotor reopened the proceedings, following the applicant’s request to that effect filed on 28 February 2005. The same decision ordered the applicant’s detention due to the fear that he might abscond. 8. On 9 May 2005 the Court of First Instance found the applicant guilty of endangering traffic, sentenced him to two years of imprisonment and prohibited him from driving. The court noted that the applicant had attempted in various manners to prolong the proceedings, including health reasons, “being occupied by other affairs”, dismissing his representative, challenging judges, registering a false address as the address of his residence, and an alleged trip to Italy. On 19 December 2006 the High Court quashed this judgment. 9. On 30 March 2007 the Court of First Instance in Kotor issued a detention order against the applicant so as to ensure his presence at the next hearing, given that neither the applicant nor his representative had appeared at the previous hearing scheduled for 29 March 2007, “thus obviously obstructing” the proceedings. The court noted in this regard that the applicant’s father had appeared instead and had submitted that the applicant was in hospital, but that the medical certificate provided stated that the applicant had been both admitted to and released from hospital on 26 March 2007. In its decision the court further stated, inter alia, that the proceedings at issue had been pending for 20 years and that the criminal prosecution was to become time-barred on 8 September 2007. 10. Between 12 April and 17 September 2007 at least four other hearings were scheduled, notably for 12 April, 21 May, 6 June and 17 September 2007, at which the applicant failed to appear. Between 5 May and 23 July 2007 he was in hospital. 11. On 14 March 2008 the Court of First Instance found the applicant guilty and sentenced him to two years of imprisonment. The court noted, inter alia, that the applicant was “deliberately stalling the proceedings in different ways” (na razne načine svjesno odugovlačio postupak). It made no reference to whether the trial had become time-barred. 12. On 5 May 2008 the applicant appealed. He submitted that the prosecution against him had become time-barred and relied on Article 125 of the Criminal Code (see paragraph 29 below). 13. On 12 February 2009 the High Court dismissed the applicant’s appeal, and proceeded ex officio to uphold the judgment rendered by the Court of First Instance on 11 November 2002. The court also held that the application of statutory provisions relating to prescription was “out of the question as the reopened criminal proceedings were not a criminal prosecution (which was concluded by a judgment) but were conducted upon the applicant’s request and for his benefit”. 14. On 24 March 2009 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud) proposing, inter alia, that the proceedings be terminated as the prosecution had become time-barred. 15. On 4 June 2009 the Supreme Court upheld the High Court judgment, concluding that “the court decided as above given that the judgments of the lower courts are based on law, the law was not breached in the proceedings against [the applicant] nor were there any significant procedural violations of criminal proceedings”. It did not address directly the question of whether the criminal prosecution had become time-barred or not. 16. Between October and December 2007 the applicant challenged all the judges of the Court of First Instance in Kotor, including the judge processing his case, on the ground that they had pursued the proceedings against him even though the criminal prosecution had become time-barred, and requested that the case be transferred to another court. These requests were rejected by the Supreme Court by 14 December 2007. 17. On 21 January 2008 the applicant filed a criminal complaint (krivična prijava) for abuse of office against the judge in charge of processing the case against him. In doing so the applicant maintained, in particular, that the court should have terminated the proceedings against him as the prosecution of the criminal offence that he was charged with had become time-barred. 18. On 26 January 2008 the State Prosecution (Osnovno državno tužilaštvo) rejected the applicant’s criminal complaint, relying on the Conclusion of the Criminal Departments of the Federal Court, the Supreme Courts and the Supreme Military Courts issued in March 1985, which provided that once a judgment finding a defendant guilty in his absence became final the criminal prosecution could not become time-barred if the criminal proceedings were later reopened (see paragraph 30 below). The Conclusion was apparently explained by an opinion that if the prosecution could become time-barred that would favour those defendants who by cunning managed to avoid being tried. The decision also noted that the applicant had failed to appear for hearings scheduled for 29 March, 12 April, 21 May, 6 June and 17 September 2007. No appeal was allowed against this decision. 19. On 13 February 2008 the applicant addressed the Supreme Court, complaining apparently that his prosecution had become time-barred. On 3 March 2008 the Supreme Court, by means of a letter, informed the applicant that the trial in his case had not become time-barred and referred to the Conclusion of 1985. 20. On an unspecified date in 2008 the applicant filed a compensation claim against the State for convicting him after the prosecution of a particular criminal offence had become time-barred. 21. On 9 March 2010 the Court of First Instance ruled against the applicant, which decision was upheld by the High Court and the Supreme Court on 6 July 2010 and 26 October 2010 respectively. The High Court relied on the Conclusion of 1985, and the Supreme Court considered that the provisions on prescription did not apply if the prescription period had ended in the course of the reopened proceedings. On 12 July 2011 the Constitutional Court dismissed the applicant’s constitutional appeal as unfounded, relying on the Supreme Court’s reasoning. 22. On 28 November 2011 the Court of First Instance in Bijelo Polje dismissed the applicant’s request for amnesty. The court noted, inter alia, that on 8 April 2009 the applicant had been served with a writ issued by the court in Bar relating to the enforcement of his prison sentence. The next day the applicant’s representative had submitted that the applicant was residing in Mojkovac and the writ should be forwarded to the court in Bijelo Polje. After the relevant authorities had attempted unsuccessfully to serve the writ on the applicant on two occasions in Mojkovac they had sought the assistance of the police. The police had informed them that the applicant actually had had residence in Bar at an unknown address, after which an arrest warrant (potjernica) had been issued against the applicant. 23. Article 371 provided that the Federal Court, the Supreme Courts of republics and provinces, and relevant military courts would deliver conclusions (načelne stavove) in respect of issues relevant for the implementation of federal regulations. 24. Section 33 provided that the Federal Court, the Supreme Courts of republic and provinces, and the Supreme Military Court convened common sessions (zajednička sednica) and, through their delegates, delivered conclusions on issues relevant for the implementation of federal regulations. In particular, common sessions were to be convened when there was inconsistency in the case-law on issues relevant for the uniform implementation of federal regulations. 25. Section 185 (3) provided that a person who was involved in traffic and failed to comply with the traffic rules negligently (iz nehata), thus jeopardising human lives and causing light bodily injuries, would be punished with imprisonment of up to one year. 26. Section 190 (5) provided that if the criminal offence under section 185 (3) led to the death of one or more persons, the perpetrator would be punished with imprisonment of between one year and eight years. 27. Section 95 (1) provided, inter alia, that a criminal prosecution could not be initiated (ne može se preduzeti) more than ten years after the commission of those criminal offences for which the courts could impose imprisonment of more than five years and less than ten years. 28. Pursuant to section 96 (6) the criminal prosecution of the crime defined in section 190 (5) of the Criminal Act of the Socialist Republic of Montenegro became time-barred in any event when more than twenty years had elapsed since the commission of the crime. 29. This Code entered into force on 1 April 2004 and thereby repealed all incompatible criminal law provisions thereto. Articles 124 § 1 and 125 § 7, however, correspond to sections 95 (1) and 96 (6), respectively, of the Criminal Act of the Federal Republic of Yugoslavia. 30. The said Conclusion (načelni stav) provided that once a judgment finding a defendant guilty in his absence became final the criminal prosecution could not become time-barred if the criminal proceedings were reopened. 31. By judgment of 24 January 2014 the High Court found X guilty in absence and sentenced him to one year’s imprisonment. Following X’s request the proceedings were reopened and by 2 July 2014 the High Court dismissed the indictment as the criminal prosecution had become time-barred in the meantime. On 1 December 2014 the Supreme Court accepted the Supreme State Prosecution’s request for protection of legality and found that the High Court’s decision of 2 July 2014 was in breach of the law. In its decision Kzz. Br. 11/14 the Supreme Court explicitly held that when criminal proceedings were reopened in respect of a person who had been tried in his absence, the statutory provisions on prescription were not applicable regardless of whether the statutory prescription time had expired in the meantime. According to the Supreme Court the reopened proceedings were not a new criminal prosecution, given that the criminal prosecution had already ended by means of a final judgment issued in the defendant’s absence. The reopened proceedings were conducted exclusively upon the request of the defendant in whose favour the proceedings were re-opened and in order to examine the earlier final judgment.