CASE OF DIMOVIĆ v. SERBIA
Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicants were born in 1980 and 1964, respectively, and live in Hajdukovo. 6. On 12 February 2007 the applicants and their friend S.K. were indicted for allegedly having stolen a wine press (presu za grožđe). 7. On 25 January 2008 the Subotica Municipal Court acquitted all three defendants of these charges. In so doing, it explained that while there was evidence that they had been in possession of a press, there was nothing to suggest that they had obtained it through any criminal activity. The applicants themselves maintained that they had found the press abandoned, while S.K. denied the charge and thereafter exercised his right to remain silent. No material evidence was introduced during the trial and, apart from the statement by the alleged victim ‒ who maintained that the press worked and had been kept in a locked yard ‒ the statements of two witnesses supported the applicants’ defence. 8. On 8 April 2008 the prosecution lodged an appeal against this judgment, emphasising, in particular, that the first-instance court had failed to take into account a statement given to the police by S.K. on 26 January 2006 (albeit in the absence of the applicants and their counsel, who had not been invited to attend). 9. On 12 May 2008 the Subotica District Court quashed the impugned judgment and ordered a retrial. The court explained that the statement referred to by the prosecution was particularly important because on this occasion S.K. had confessed ‒ in the presence of his counsel ‒ that he had stolen the press together with the applicants. S.K. had subsequently revoked this confession claiming that it had been given under the influence of alcohol and then refused to answer any further questions, and all of these circumstances needed to be reconsidered by the Municipal Court, even though the prosecution itself had initially failed to request that S.K.’s statement of 26 January 2006 be admitted as evidence. The court found this failure by the Municipal Court to be “unclear and inexplicable”. 10. On 12 October 2008 S.K. died and on 29 December 2008 the Municipal Court discontinued the proceedings against him. 11. On 19 February 2009 the Municipal Court, having held a hearing and read out S.K.’s statement of 26 January 2006 before the parties, found the applicants guilty. The first applicant was sentenced to an effective prison term of six months while the second applicant was sentenced to six months’ imprisonment, suspended for a period of two years. In its reasoning the court primarily relied on S.K.’s statement of 26 January 2006. No evidence different from that admitted during the first trial was introduced during the retrial. 12. On 29 July 2009 the District Court upheld this judgment on appeal, and on 7 October 2010 the Supreme Court rejected the applicants’ further appeal on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude). 13. In the meantime, on 11 September 2009, the applicants lodged a constitutional appeal with the Constitutional Court, alleging that their conviction had been based on the testimony of a person whom they had never had a chance to cross-examine and who had, in any event, revoked it subsequently. 14. On 14 October 2010 the Constitutional Court rejected the applicants’ appeal as manifestly ill-founded, adding that ‒ as a consequence of the death of S.K. ‒ the lower courts had had no choice but to accept his prior statement given to the police and, clearly, could no longer accommodate the applicants’ objection regarding his cross-examination.