THIRD SECTION

DECISION

Application no . 36470/06 Goran PETROVIĆ and Igor GAJI Ć against Serbia

The European Court of Human Rights ( Third Section), sitting on 17 March 2015 as a Chamber composed of:

Luis López Guerra , President, Ján Šikuta , Dragoljub Popović , Kristina Pardalos , Johannes Silvis , Valeriu Griţco , Iulia Antoanella Motoc , judges,

and Stephen Phillips, Registrar ,

Having regard to the above application lodged on 4 September 2006 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Goran Petrović and Mr Igor Gajić , are Serbian nationals, who were born in 1967 and 1973 respectively. They are represented before the Court by Mr S. Protić , a lawyer practising in Zemun .

A. The circumstances of the case

1. Concerning the applicants ’ alleged torture

2. The facts of the case, as submitted by the parties , may be summarised as follows.

On 12 March 2003 Serbian Prime Minister Zoran Đinđić was assassinated. On 13 March 2003 a state of emergency was declared in Serbia. On the same day the Serbian Government issued a directive which limited civil rights during the state of emergency. Among others, habeas corpus and the right to counsel during police custody were suspended.

3. The applicants were arrested on 14 March 2003. They were held incommunicado at different locations until 13 May 2003. According to the applicants, during that time they were subjected to torture, notably, beatings, asphyxiation, electric shocks, mock executions and threats.

4. On 13 May 2003 the applicants were brought before the investigating judge who remanded them in custody pending crim inal investigation against them . The applicant Goran Petrović complained before the investigating judge that he had been tortured, while the second applicant ’ s lawyer said that his client had “injuries on his body and certain health issues” and requested that his client receive medical examination. It would appear that no steps were taken in regard to these complaints by the investigating judge. On 23 June 2003 the applicants ’ counsel requested the investigating judge to gather the medical documentation concerning the applicants from different prisons in which they had been detained.

5. On 4 September 2003 Amnesty International reported that the applicants had allegedly been tortured. In response to this report, the Inspectorate General ’ s Service (“Inspectorate”) instigated an internal investigation on 12 September 2003. On 17 September 2003 the applicants and several witnesses were questioned and a report was finalised on 6 November 2003. Among the facts mentioned in the report, it is stated that on 1 April 2003 a doctor had noted h a ematoma e on both applicants and that on 3 April 2003 prison guards had noted “visible injuries” on both applicants. The report concluded that the allegations from the Amnesty International ’ s report were “partly founded”: on the one hand, the use of force against the applicants had not been lawful, but on the other hand, their treatment by the police had not amounted to torture. The Inspectorate recommended the Ministry of Interior further to investigate this case, identify the persons who had used force, examine the reasons why the force had been used, and sanction those responsible as appropriate . It is not clear whether the Ministry of Interior did so.

6. On 22 October 2003 the applicants filed a criminal complaint alleging torture against unknown persons. The public prosecutor requested further information concerning this case from the Kruševac Police Station.

7. On 9 August 2004 the Inspectorate requested more information concerning the applicants ’ treatment from the Kruševac Police Station.

8. On 13 January 2005, the applicants supplemented the criminal complaint and asked the public prosecutor to int erview certain police officers.

9. On 7 March 2005 the public prosecutor received a report of the Kruševac Police Station .

10. On 18 April 2005 the Inspectorate again requested the Kruševac Police Station to provide information concerning the applicants ’ treatment.

11. On 22 March 2005 the public prosecutor rejected the applicants ’ criminal complaint and the applicants were informed of that fact on 24 March 2005.

12. On 16 June 2005 the chief of the Kruševac Police Station informed the Inspectorate that force had indeed been used against the applican ts but that the use of force had been lawful.

13. On 17 June 2005, the applicants filed another criminal complaint, indicating the names of the alleged p erpetrators for the first time. The criminal complaint was rejected on 20 January 2006 and the applicants were notified of that fact on 25 January 2006. The applicants had the right to pursue a subsidiary criminal prosecution ( preuzeti krivično gonjenje ) within eight days of the date that decision had been served on them by filing a request for an investigation ( zahtev za sprovođenje istrage ). The applicants did not take over the criminal prosecution.

14. On 7 June 2006, upon the applicants ’ request, they received a summary of the Inspectorate ’ s report of 6 November 2003.

15. On 19 December 2006, following an order by the Information Commissioner, the applicants were served with a longer version of the Inspectorate ’ s report of 6 November 2003.

2. Facts concerning the criminal proceedings against the applicants

16. On 15 November 2004 both applicants were sentenced to prison sentences for organised crime. During the first-instance trial and in their appeal, the applicants maintained that they had been subjected to torture in police detention.

17. A hearing for their appeal was scheduled before a five-judge committee of the Supreme Court of Serbia for 15 and 16 September 2005. However, on 14 September the judge rapporteur in this case was arrested and charged with accepting money from one of the applicants to quash the first-instance judgment and release the applicants from pre-trial detention. Shortly after that arrest, one of the ministers in the Serbian Government publicly stated that five other judges of the Supreme Court of Serbia should have also been arrested. The President of the Supreme Court of Serbia then appointed another judge rapporteur and scheduled a hearing for 29 and 30 September 2005.

18. On 30 September 2005 one of the Belgrade newspapers published an article claiming that the new judge rapporteur was also under pressure from criminal cartels through her daughter. Her daughter then made a public statement refuting those allegations.

19. On 30 September 2005 the Supreme Court of Serbia changed the legal qualification of the applicants ’ offence and upheld the rem a inder of the first-instance judgment.

20. The applicants appealed on points of law ( zaht ev za ispitivanje zakonitosti pravosnažne presude ) complaining that the judges dealing with their case had acted under pressure from the executive and the media and that they had therefore lacked independence. Additionally, the applicants claimed that the new judge rapporteur had had only 14 days to prepare a case which consisted of thousands of pages of material. The applicants submitted a statement by the second judge rapporteur in their case (from the criminal trial of the first judge rapporteur) according to which she had been obliged to read up to 20 hours per day.

21. On 24 March 2006, the Supreme Court of Serbia, in a different formation rejected the applicants ’ appeal on points of law. The Supreme Court found that the new judge rapporteur had been appointed in accordance with the law and the fact that the trial had attracted significant attention from the media and general public did not mean that the court had acted under pressure. The applicants received that decision on 9 June 2006.

B. Relevant domestic law

22. The Criminal Code 1977 (published in Official Gazette of the Socialist Republic of Serbia no. 26/77, amendments published in Official Gazette of the Socialist Republic of Serbia nos. 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. The relevant Article reads as follows :

Article 66 (Ill-treatment by public officials acting in an official capacity)

“Whoever acting in an official capacity ill-treats or insults another or otherwise treats such person in a humiliating and degrading manner, shall be punished with imprisonment from three months to three years.”

23. The Code of Criminal Procedure 2001 (published in the Official Gazette of the Federal Republic of Yugoslavia no. 70/01, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) was in force from 28 March 2002 until 15 January 2013. Most criminal offences (including ill-treatment by public officials acting in an official capacity) are subject to public prosecution, but some minor offences are only sub ject to private prosecution. Pursuant to Article 20 of the Code, the public prosecutor must prosecute when there is sufficient evidence that a named individual has committed a criminal offence which is subject to public prosecution. Article 61 of the Code provides that when the public prosecutor decides not to prosecute such an offence because of the lack of evidence, the victim of the offence may nevertheless start a subsidiary prosecution within eight days from the notification of the public prosecutor ’ s decision.

COMPLAINTS

24. The applicants complain under Article 3 of the Convention that they were tortured while in police custody and that there was no effective official investigation into their torture. Under Article 5 § 2 they complain that they were not informed of the reasons for their arrest. Furthermore, they complain under Articles 6 § 1 and 13 that they did not have a fair criminal trial by an independent and impartial tribunal.

THE LAW

A. The applicants ’ complaint concerning the alleged torture

25. The Government claimed that this complaint was inadmissible on various grounds . Notably, they contended that the application was incompatible ratione temporis since Serbia and Montenegro acceded to the Convention on 3 March 2004, and that it had been lodged out of time as the applicants lodged their application more than seven months after the rejection of their criminal complaint.

26. The applicants disagreed.

27. Even assuming that this complaint is compatible ratione temporis it is out of time for the following reasons.

28. The Court reiterates that the purpose of the six-month rule is to promote security of the law and to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see P.M. v. the United Kingdom ( dec. ), no. 6638/03, 24 August 2004). It should also ensure that it is possible to ascertain the facts of a case before that possibility fades away, making a fair examination of the question in issue next to impossible (see Pavlenko v. Russia, no. 42371/02, § 69, 1 April 2010).

29. The six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies.

30. The Court has held in cases concerning the obligation to investigate under Article 2 of the Convention that where a death has occurred, applicant relatives are expected to keep track of the progress of the investigation and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective investigation (see Bulut and Yavuz v. Turkey ( dec. ), no. 73065/01, 28 May 2002; Bayram and Yıldırım v. Turkey ( dec. ), no. 38587/97, ECHR 2002 III and Varnava and Others v. Turkey [GC], nos. 16064 /90 et al., § 158, ECHR 2009). The Court considers that the same principle applies, by analogy, to cases concerning the obligation to investigate under Article 3 of the Convention ( see Stanimirović v Serbia , no. 26088/06 § 32, 18 October 2011).

32. While it is true that on 7 June 2006, upon the applicants ’ request, they received a summary of the Inspectorate ’ s report of 6 November 2003, the said report merely informed the applicants of the internal investigation which ended in 2003 and did not indicate any new developments in their cases.

33. In view of the above, the Court finds that this complaint has been lodged out of time and that it is inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

B. The applicants ’ complaint concerning the circumstances of their arrest

34. The applicants complained that at the time of their arrest they were not informed of reasons for their arrest. Since their arrest took place before the ratification of the Convention by the respondent State, this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3.

C. The applicants ’ complaints concerning the criminal proceedings against them

35. The Government claimed that this complaint was out of time as the second-instance judgment was adopted by the Supreme Court on 30 September 2005, whereas the applicants lodged their application on 4 September 2006. The Government submitted that the six-month period should be considered from that date and not from the date of the judgment of 24 March 2006 by which the applicants ’ appeal on points of law ( zaht ev za ispitivanje zakonitosti pravosnažne presude ) was rejected. Alternatively, the Government submitted that the complaint is manifestly ill-founded. In the Government ’ s view the applicants had a fair trial by an impartial tribunal.

36. The applicants argued that the court which was determining the criminal charges against them was not independent and impartial because the case had been widely covered by local media. They further submitted that the judge rapporteur in their case had been given only two weeks to prepare the case.

38. Upon the applicants ’ appeal, the third - instance court thoroughly examined the applicants ’ complaints and found no violation of their rights. The third-instance court found that the judge rapporteur had been replaced in accordance with the law (see Buscarini v. San Marino ( dec. ), no. 31657/96 , ECHR 4 May 2000 and by contrast Kontalexis v. Greece , no. 59000/08 , §§ 43-44 , 31 May 2011 ) .

39. While it is true that the new judge rapporteur only had limited time to prepare the case and that the trial attracted significant attention, this is not sufficient for the Court to find that the second-instance court decided under outside pressure .

40. It follows that this complaint is manifestly ill - founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously ,

Declares the application inadmissible .

Done in English and notified in writing on 9 April 2015 .

Stephen Phillips Luis López Guerra Registrar President