CASE OF MLADENOVIĆ v. SERBIA
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
5. The applicant was born in 1948 and lives in Belgrade. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 30 July 1991, in the course of a fight between two groups of youths, the applicant’s son (hereinafter “A”), aged 21, was fatally shot by an off-duty police officer (hereinafter “B”), who had apparently attempted to assist his own brother as one of the participants in the said incident. 8. On an unspecified date thereafter the District Public Prosecutor’s Office (Okružno javno tužilaštvo) in Belgrade charged B with murder, as well as a number of other persons for several related crimes. 9. The decision to institute a formal judicial investigation (rešenje o sprovođenju istrage) was adopted on 5 August 1991. 10. On 30 December 1991, however, the charges against B were dropped, and on 13 January 1992 the investigating judge (istražni sudija) of the District Court (Okružni sud) in Belgrade decided to terminate the proceedings against him (obustavi istragu). 11. During the said investigation the defendants had all been heard in person, as had several witnesses, including A’s own brother. The investigating judge had further obtained relevant medical and ballistics reports, as well as other expert testimony. The autopsy report had also been produced. 12. On 4 February 1992 the applicant filed an indictment (optužnica) against B with the District Court, and thus took over the prosecution of the case in the capacity of a “subsidiary prosecutor” (see paragraph 32 below). 13. On 29 January 1996 the District Court acquitted B, stating that he had acted in self-defence. 14. Between 4 February 1992 and 29 January 1996 more than a dozen hearings had been held before the District Court. The applicant and numerous witnesses, as well as medical and ballistics experts, had all been heard, and a re-construction of the events in question had been carried out. 15. On 24 March 1999 the Supreme Court (Vrhovni sud Srbije) quashed the judgment of 29 January 1996 and ordered that the case be re-examined at first instance. In so doing, it described the District Court’s reasoning as incoherent and noted that its establishment of the facts and its assessment of evidence had been fundamentally flawed. 16. On 4 November 2002 the District Court again acquitted B, re-affirming that he had acted in self-defence. 17. On 20 April 2004 the Supreme Court quashed the District Court’s judgment. It noted that the said court’s reasoning had almost exclusively taken into account the evidence in favour of B, having ignored or misrepresented the rest. The District Court was thus ordered to thoroughly review the case and re-assess the evidence. The District Court received the Supreme Court’s decision on 21 September 2004. 18. The next hearing before the District Court was scheduled for September 2006, but was subsequently cancelled by the court itself because it had, apparently, been unable to secure the proper composition of its bench. 19. On 18 December 2006 the District Court adjourned the hearing because of the inability of B’s lawyer to appear in court due to a prior professional commitment. 20. Following an additional adjournment on 27 June 2007, a new hearing was set for 19 September 2007. 21. On 19 September 2007 the District Court again adjourned the hearing, this time because it had been informed that B, still an active police officer, had been sent, as a member of the Serbian contingent, to take part in the United Nations’ mission in Liberia. The decision of the Ministry of Internal Affairs (Ministarstvo unutrašnjih poslova) issued in this respect, on 3 August 2007, stated that B’s posting would last for a period of one year, but that it could be extended. The District Court scheduled the next hearing for 2 November 2007, which was apparently when B was supposed to briefly visit Belgrade. 22. On 4 October 2007, however, the applicant was informed that the next hearing would instead be held “on 3 October 2007”. 23. The applicant thereafter went physically to the District Court’s registry and was told that the upcoming hearing was still scheduled for 2 November 2007. 24. On 2 November 2007 the applicant therefore appeared before the District Court, but was informed by the presiding judge that the hearing had been set for 30 October 2007. The judge ultimately accepted to schedule a new hearing for 14 December 2007. 25. On 23 November 2007, however, the applicant received the District Court’s decision of 30 October 2007, declaring that the proceedings had been terminated due to the applicant’s failure to appear before the court on the latter date. 26. On 26 November 2007 the applicant complained about this decision, and on 6 December 2007 the District Court re-instituted the proceedings in question. 27. Between 20 February 2008 and 4 December 2008 a total of six hearings were adjourned by the District Court, the reasons for this being: (i) B’s failure to appear in court (on three occasions); (ii) the presiding judge’s wish to withdraw from the case in view of the applicant’s complaints against him (once); and (iii) the inability of B’s lawyer to appear in court as a result of a traffic accident (twice). 28. By October 2009 the District Court had held another three and adjourned another two hearings. Specifically, the hearings of 24 April 2009, 29 June 2009 and 9 October 2009 had been held, during which B and a number of witnesses had been re-heard, whilst the hearings of 28 January 2009 and 30 November 2009 had been adjourned due to B’s failure to appear in court and the presiding judge’s absence, respectively. 29. In December 2009 the presiding judge was not re-elected to the bench. The case was therefore assigned to another judge and the proceedings started anew. 30. It would appear that no hearings have been scheduled thereafter. 31. Articles 19 and 20 of the Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02, as well as in the Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09, 72/09 and 76/10) provide, inter alia, that formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex officio, including murder, the authorised prosecutor is the public prosecutor personally. The latter’s authority to decide whether to press charges, however, is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed. 32. Article 61 provides that should the public prosecutor decide that there is no basis to prosecute, he must inform the victim of this decision, who shall then have the right to take over the prosecution of the case on his own behalf, in the capacity of a “subsidiary prosecutor”. 33. Articles 64 § 2 and 379 provide that in a case where the prosecution has already been taken over by a subsidiary prosecutor, the public prosecutor shall nevertheless have the power, up until the conclusion of the main hearing (do završetka glavnog pretresa), to resume the prosecution of the matter ex officio. It is understood that this refers to the main hearing at first instance, including the main hearing following a possible quashing of a first instance judgment, as well as a potential main hearing on appeal (see Komentar Zakonika o krivičnom postupku, Prof. dr Tihomir Vasiljević and Prof. dr Momčilo Grubač, IDP Justinijan, Belgrade, 2005, p. 136, paragraphs 3 and 4).