ZARUBICA AND OTHERS v. SERBIA
Inadmissible
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
3. The applicants are Mr Milan Zarubica (“the first applicant”), VARAN CHEMICALS LTD (“the second applicant”) and LENAL PHARM LTD (“the third applicant”). 4. The first applicant is a medical doctor and a Serbian national who was born in 1968, and is presently serving a prison sentence in the Sremska Mitrovica Penitentiary. The second and third applicants are limited liability companies based in Serbia. They were both co-owned by the first applicant. 5. The applicants are represented before the Court by Mr M. Zindović, Mr Ž. Lazović, N. Zeković and M. Timotijević, all lawyers practising in Belgrade. The Serbian Government (the Government”) were initially represented by their former Agent, Mr S. Carić, and subsequently by their current Agent, Ms Vanja Rodić. 6. The facts of the cases, as submitted by the parties, may be summarised as follows. 7. On 4 February 2003 the first applicant was arrested on charges primarily related to the production and trafficking of narcotics (amphetamines). 8. On 27 June 2003 the first applicant and numerous others were indicted by the Belgrade District Public Prosecutor’s Office for various drugs-related felonies alleged to have been committed in an organised crime context. The first applicant was described as being the head of this criminal enterprise. 9. The second and third applicants were never indicted, as the domestic legislation at that time did not provide for the possibility to bring criminal charges against legal entities. They were, however, mentioned as vehicles used by the first applicant and others to carry out their criminal endeavours, as well as companies in which criminal proceeds had been invested. 10. On 25 March 2005, the Belgrade District Court: (a) found the first applicant guilty and sentenced him to a total of twelve years’ imprisonment for the narcotics-related charges, as well as the charge of tax evasion; (b) ordered the confiscation of all substances containing amphetamine found in the first applicant’s possession; (c) ordered the confiscation of the 320,000 United Sates Dollars (“USD”) and 89,000 Euros (“EUR”) found in the first applicant’s flat; (d) ordered the confiscation of the 2,500,000 Swiss Francs (“CHF”) deposited in the first applicant’s bank account in Switzerland; (e) ordered the first applicant to pay, for the restitution of the “remainder of his criminally gained assets”, the sum of USD 10,000,000; and (f) ordered the confiscation of a building owned by the second applicant, as well as the confiscation of all of the second and third applicants’ production facilities, laboratory equipment and chemical substances found on their premises. 11. On 2 February 2006 the Supreme Court upheld the first applicant’s conviction as regards the narcotics-related charges, and sentenced him to eleven years’ imprisonment. The Supreme Court further quashed the first applicant’s conviction regarding tax evasion, and excluded the second applicant’s building from the confiscation ordered at first instance, noting that following the removal of the confiscated production facilities and illegal substances the building itself posed no danger to the public. 12. The applicants did not receive the Supreme Court’s decision before 5 March 2006. 13. In April 2006 the applicants filed an appeal on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude). 14. On 24 January 2007 the Supreme Court, sitting in a differently composed panel compared to the one which had considered the applicants’ case on appeal, rejected the first applicant’s appeal on points of law as unfounded. As regards the second and third applicants’ pleadings, they were rejected as inadmissible since an appeal on points of law could only be filed by the defendants and their counsel. On 7 March 2007 the judgment was issued in writing. 15. On 9 May 2006 the District Court formally filed a request with the competent Swiss authorities, relying on its judgment of 25 March 2005, seeking confiscation of the funds deposited on the first applicant’s bank account in Switzerland. 16. On 18 May 2007 the Zurich District Prosecutor’s Office rejected this request as unfounded, stating, inter alia, that it could not conclude that the assets in question were indeed of a criminal origin. In particular, there was no evidence that the first applicant had made any deposits during the period when he was alleged to have committed the crimes in question. By 18 June 2007, this rejection became final. 17. On 25 July 2007 the first applicant was informed by the Swiss authorities that he could freely access and make use of his funds on the bank account in question.