CASE OF MITROVIĆ v. SERBIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
7. The applicant was born in 1943 and lived in Sremska Mitrovica. He died on 20 October 2014. 8. On 26 December 1993 the applicant was detained on remand by the “Police of the Republic of Serbian Krajina” (Policija Republike Srpske Krajine) under suspicion of murder. His detention was subsequently extended by the “investigative judge” (istražni sudija) on 29 December 1993 and by the “District Court of Beli Manastir” (Okružni sud u Belom Manastiru) on 25 January 1994, 15 February 1994, 8 April 1994 and 9 May 1994. 9. On 9 May 1994 the “District Court of Beli Manastir” sentenced the applicant to 8 years of imprisonment for murder. It found that the applicant, after a quarrel in which his neighbour accused him of war profiteering, intentionally shot the neighbour in the head with a rifle, leaving him dead on the spot. It further found that the entire event had taken place in front of several eyewitnesses. 10. On 21 July 1994 this sentence was confirmed by the “Supreme Court of the Republic of Serbian Krajina” (Vrhovni sud Republike Srpske Krajine). The applicant was then sent to serve his prison sentence in “Beli Manastir District Prison” (Okružni zatvor u Belom Manastiru). 11. All of the above institutions were at the relevant time under the control of the “Republic of Serbian Krajina” (Republika Srpska Krajina), an internationally unrecognised self-proclaimed entity established on the territory of the Republic of Croatia during the wars in the former Yugoslavia. The entity ceased to exist after the adoption of the Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium of 12 November 1995 (hereinafter Erdut Agreement) by which the Republic of Croatia assumed sovereignty over the entirety of its territory. The entity was never recognised as a state by the Respondent State. 12. Shortly after the adoption of the Erdut Agreement, and upon the request of the “Beli Manastir District Prison”, the applicant was transferred on 20 June 1996 to Sremska Mitrovica prison (Kazneno-popravni zavod Sremska Mitrovica), which is on the territory of the Respondent State. The reason for the transfer was listed as “security concerns”. No proceedings for recognition and enforcement of a foreign prison sentence were conducted by the authorities of the Republic of Serbia. 13. The applicant remained in Sremska Mitrovica prison until 5 February 1999, when he was released for annual leave until 15 February 1999. Due to the applicant’s failure to return to the prison on the specified date, a warrant for his arrest was issued. 14. On 7 July 2010, the applicant was arrested when he attempted to enter Serbia from Croatia. He was sent to Sremska Mitrovica prison to serve the remainder of his sentence. 15. The applicant remained in prison until 15 November 2012 when he was pardoned by the President of the Republic of Serbia and released. 16. On 4 February 2011 the applicant lodged a constitutional appeal challenging the lawfulness of his imprisonment. 17. On 10 May 2012 the Constitutional Court found that there was no violation of the applicant’s right to liberty. It concluded that the legal ground for the applicant’s detention was his conviction by the “Supreme Court of Serbian Krajina” of 21 July 1994. It further noted that the procedure governing the recognition of a foreign criminal sentence and its enforcement was not applicable in the applicant’s case because Serbian Krajina was not a state. The court concluded that the applicant’s transfer had been carried out for factual reasons – the deteriorating security situation in the war zone which could lead to the applicant’s escape from prison or his death. The court further noted that the applicant had been convicted of murder by which the right to life was violated, and that states have positive obligations to protect this right. It finally held that the lack of procedure for recognition of a foreign judgment was proportionate to the obligation to enforce a prison sentence for murder especially given that the applicant had access to the Constitutional Court which had the power to review the legality of his detention and that he had access to other procedures available to any other prisoner in Serbia, including the procedure for applying for a pardon. 18. On 7 March 2011 the applicant initiated civil proceedings for compensation for unlawful imprisonment. On 13 December 2012 the First Instance Court in Belgrade rejected the applicant’s claim finding that he had been lawfully convicted of murder by the courts of the “Republic of Srpska Krajina” and that his imprisonment cannot be considered as unlawful. On 16 April 2014 the Belgrade Appellate Court confirmed this judgment. On 6 June 2014 the applicant lodged an appeal on points of law before the Supreme Court of Cassation. On 8 July 2015 the Supreme Court of Cassation rejected the applicant’s appeal on points of law on procedural grounds, finding that the value of the dispute in question was below the applicable statutory threshold.