Communicated on 18 December 2014

THIRD SECTION

Application no. 52142/12 Miladin MITROVIĆ

against Serbia lodged on 31 July 2012

STATEMENT OF FACTS

The applicant, Mr Miladin Mitrovi ć, is a national of Bosnia and Herzegovina born in 1943 and is currently residing in Borovo Naselje , Croatia. At the time of the submission of the application, he was serving a prison sentence in Sremska Mitrovica p rison , Serbia . He is represented by Mr. B. Miavec , a lawyer practicing in Temerin .

A. The circumstances of the case

The facts of the case, as submitted by the applican t, may be summarised as follows:

On 26 December 1993 the applicant was detained on remand by the “Police of Republic of Serbian Krajina” ( Policija Republike Srpske Krajine ). His detention was subsequently extended by the “investigative judge” ( istra žni 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.

On 9 May 1994 the “District Court of Beli Manastir ” sentenced the applicant to 8 years of imprisonment for murder. On 21 July 1994 this sentence was confirmed by the “Supreme Court of the Republic of Serbian Krajina” ( Vrhovni sud Republike Srpske Krajine ). He was sent to serve his prison sentence in “ Beli Manastir District Prison” ( Okružni zatvor u Belom Manastiru ).

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.

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. 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.

The applicant remained in the 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, the warrant for his arrest was issued.

On 7 July 2010, the applicant was arrested when he attempted to enter Serbia from Croatia and was sent to Sremska Mitrovica prison to serve the remainder of his sentence.

On 4 February 2011 the applicant lodged a constitutional appeal challenging the lawfulness of his imprisonment.

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 was performed on the factual grounds – due to 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 was convicted for murder by which right to life is 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 when it is taken into consideration that the applicant had access to the Constitutional Court which has a power to review the legality of his detention and that he had access to other procedures available to any other prisoner in Serbia, including pardoning procedure.

The applicant remained in prison until 15 November 2012 when he was pardoned by the President of the Republic of Serbia and released.

B. Relevant domestic law

1. Code of Criminal Procedure 1977 ( published in the Official Gazette of the Socialist Federative Republic of Yugoslavia 4/77, 36/77, 14/85, 26/86, 74/87, 57/89 as well as in t he Official Gazette of the Federal Republic of Yugoslavia 27/92 and 24/94)

The relevant article of this Code read as follows:

Article 520

1) The domestic courts will not respond to the requests of foreign organs relating to the enforcement of criminal judgments of foreign courts.

2) By way of exception to paragraph 1 of this Article, the domestic courts will enforce a final judgment in relation to the sentence pronounced by a foreign court if it is regulated by an international agreement and if the sanction is pronounced also by the domestic court in accordance with the criminal law of the Socialist Federative Republic of Yugoslavia.

3) The competent court shall deliver a judgment in a chamber from Article 23, paragraph 6 of this Act without presence of the parties.

4) Competence ratione loci is determined in accordance with the last residence of the convict in the territory of the Socialist Federative Republic of Yugoslavia. If the convict did not have residence on the territory of the Socialist Federative Republic of Yugoslavia, his place of birth shall be relevant. If the convict had no residence and was not born on the territory of the Socialist Federative Republic of Yugoslavia, the Federal Court shall appoint one of the courts which is competent ratione materiae to conduct the proceedings.

5) The competent court ra tio ne materiae is determined by the law of the republics, or the laws of the autonomous provinces ...

6) The operative part of the judgment referred to in paragraph 3 of this Article must contain the entire operative part and the name of the [foreign court] and it will pronounce sentence. The reasoning must contain the grounds which led the court to deliver a particular sentence.

7) An appeal against the judgment can be lodged by the public prosecutor or the convicted person or his legal representative.

8) If a foreign national convicted by a domestic court or a person entitled to do so by an agreement lodges a request to the first instance court to serve his prison sentence in his home country, the first instance court will act in accordance with the international agreement.

COMPLAINT

The applicant complains under Article 5 § 1 (a) of the Convention about lawfulness of his detention between 7 July 2010 and 15 November 2012 .

QUESTION S TO THE PARTIES

Was the applicant ’ s deprivation of liberty between 7 July 2010 and 15 November 2012 compatible with Article 5 § 1 of the Convention? In particular:

a) Could the “ Beli Manastir District Court” and the “Supreme Court of Serbian Krajina” be regarded as “competent courts” within the meaning of Article 5 § 1 (a) of the Convention? Was the judicial system of the Republic of Serbian Krajina operating on a “constitutional and legal basis” reflecting a judicial tradition compatible with the Convention ((see, mutatis mutandis , Cyprus v. Turkey [GC], merits , no. 25781/94, § 231 and 236-37 , ECHR 2001 ‑ IV and IlaÅŸcu and Others v. Moldova and Russia [GC], no. 48787/99, § 460 , ECHR 2004 ‑ VII )?

b) Was the applicant ’ s conviction before the courts of the Republic of Serbian Krajina a result of a flagrant denial of justice (see, mutatis mutandis , Drozd and Janousek v. France and Spain , 26 June 1992, Series A no. 240, pp. 34-35, § 110).