Communicated on 6 November 2014

SECOND SECTION

Application no. 76522/12 Nebojša MUGOŠA against Montenegro lodged on 24 November 2012

STATEMENT OF FACTS

The applicant, Mr Nebojša Mugoša , is a Montenegrin national, who was born in 1962 and lives in Podgorica.

A. The circumstances of the case

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

1. The applicant ’ s detention

On 19 February 2011 the applicant was detained on suspicion that he had committed a murder.

On 21 February 2011 the High Court ( Vi Å¡ i sud ) in Podgorica issued a detention order against the applicant. T he detention was extended on 16 March 2011, 17 May 2011 and 18 July 2011.

On 23 September 2011 the applicant approached the prison authorities requesting that he be released in the absence of any decision extending his detention after 17 September 2011. The same day he was served with a copy of a decision of 22 September 2011, sent by fax. The copy was neither signed nor stamped. The decision specified that the detention would last until a further decision ( do dalje odluke suda ). In addition, the High Court expressly stated that the applicant “in an insidious manner and for material gain, deprived X of his life [...] by shooting him from close distance in the chest and in the back with an automatic gun several times, inflicting on him numerous injuries and causing his immediate death [...]”.

On 26 September 2011 the applicant appealed, complaining about the manner in which the decision had been served on him and claiming that his detention had ended on 17 September 2011, that is two months as of the last extension of detention.

On 29 September 2011 the applicant was served with the stamped and signed decision of 22 September 2011. The same day the applicant filed another appeal.

On 4 October 2011 the Court of Appeals ( Apelacioni sud ) in Podgorica dismissed both appeals. One of the judges involved in ruling was S.V.

By 4 November 2011 the applicant filed a constitutional appeal, submitting a number of complaints, one of them being that S.V. should have been excluded from the bench.

On 12 January 2012 the Constitutional Court ( Ustavni sud ) in Podgorica quashed the decision of the Court of Appeals and ordered that the case be re-examined. The Constitutional Court quashed the said decision on the ground that S.V. had indeed to be excluded from ruling on the applicant ’ s appeals. In view of this, the court did not consider it necessary to examine the other complaints.

On 25 January 2012 the Court of Appeals, upon the remittal by the Constitutional Court, dismissed the applicant ’ s appeals. The court held, in particular, that: (a) the applicant ’ s detention had not ended on 17 September 2011, as the previous detention order had not specified how long the detention would last and the statutory time-limit of two months was not mandatory (see Article 179 and Article 152, respectively, at B.4 and B.3 below); and (b) the absence of the stamp and signature in the detention order did not make it unlawful.

On 22 March 2012 the applicant filed a constitutional appeal complaining that his detention had not been extended within the statutory time-limit of two months, that the copy of the relevant decision had not been signed and stamped, that the Court of Appeals had failed to decide on his appeal within the statutory time-limit of three days, and that the presumption of innocence had been violated by the High Court ’ s decision. He relied, inter alia , on Articles 5 and 6 of the Convention.

On 20 April 2012 the Constitutional Court dismissed the applicant ’ s constitutional appeal. It considered in particular that the relevant legislation limited the duration of the detention to three years and that there was no other limitation in that regard. The courts had a duty to examine every two months if reasons for detention persisted and, depending on the circumstances, extend it or revoke it. However, there was no obligation on the courts to specify how long the detention would last, given their obligation to control the duration of the detention every two months. Therefore, the fact that the decision was issued two months and four days later, and that the Court of Appeals ruled two days after the expiry of the statutory time-limit, could not be decisive to conclude that the applicant ’ s right to liberty was violated, especially as the statutory time-limits were not mandatory. The court also held that the High Court and the Court of Appeals had not stated that the applicant was guilty but that it transpired from the case-file and the disputed decisions that the applicant was charged with the relevant criminal offence. The court did not address the complaint about the lack of a stamp and signature on the copy of the detention order of 22 September 2011.

The applicant submitted that he had received the Constitutional Court ’ s decision on 25 May 2012. It is clear from the case-file that the relevant decision was not dispatched before 18 May 2012.

2. Other relevant circumstances

On 16 May 2011 the applicant was indicted for murder.

On 20 June 2011 the Constitutional Court accepted a constitutional appeal submitted by R.K. and D.M. It held, inter alia , that the Court of Appeals had not ruled within the statutory time-limit of three days on the appellants ’ appeal, and that non-compliance with the national legislation led to a violation of Article 5 of the Convention. In so doing, the court relied on Van der Leer v. the Netherlands (21 February 1990, § 22, Series A no. 170 ‑ A).

B. Relevant domestic law

1. Constitution of Montenegro 2007 ( Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 01/07)

Article 30 contains details as regards detention. Paragraph 4, in particular, provides that the duration of detention must be as short as possible ( mora biti svedeno na najkraće moguće vrijeme ).

Article 32 provides for the right to a fair trial.

Article 35 provides that everybody shall be presumed innocent until proved guilty by means of a final court decision.

Article 149 provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.

The Constitution entered into force on 22 October 2007.

2. Montenegro Constitutional Court Act ( Zakon o Ustavnom sudu Crne Gore, published in the OGM no. 64/08)

Section 48 provides that a constitutional appeal may be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective legal remedies have been exhausted.

Sections 49-59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it shall quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision.

This Act entered into force in November 2008.

3. The Criminal Procedure Code 2003 ( Zakonik o krivičnom postupku ; published in the Official Gazette of the Republic of Montenegro nos. 71/03, 07/04, and 47/06)

Article 16 provided, inter alia , for an obligation on the courts to conduct the proceedings without delay, and to keep the duration of detention to the shortest time needed.

Article 147 § 2 provided for a duty of all the bodies involved in criminal proceedings to act with particular urgency if the accused was in detention.

Article 149 § 2 provided that a detention order must contain, inter alia , a period of detention, as well as an official stamp and the signature of the judge ordering detention.

Article 152 set out details as regards the length of detention after an indictment was issued. In particular, Article 152 § 2 provided that once an indictment entered into force a panel of judges, upon a proposal of the parties or of its own motion, “had a duty” ( je du ž no ) to examine every two months ( svaka dva mjeseca ) if the reasons for detention persisted, and to issue a decision extending detention or revoking it. Article 152 § 3 further provided that after the indictment was issued the detention could last three years at most. Article 152 § 5 provided that an appeal against a decision on extending or revoking detention would be ruled upon within three days.

4. The Criminal Procedure Code 2009 ( Zakonik o krivičnom postupku ; published in the OGM nos. 57/09 and 49/10)

Articles 15, 174 § 2, 176 § 2 and 179 of this Code correspond to Articles 16, 147 § 2, 149 § 2 and 152, respectively, of the previous Code.

This Code entered into force on 1 September 2011.

5. The Obligations Act 2008 ( Zakon o obligacionim odnosima ; published in the OGM nos. 47/08 and 04/11)

Sections 151, 206 and 207 of the Obligations Act, taken together, provide, inter alia , that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or of his other personal rights ( prava ličnosti ) shall be entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.

Section 166 provides, inter alia , that a legal entity ( pravno lice ), which includes the State, shall be liable for any damage caused by one of its bodies to a “third person” in the course of performing its functions or related thereto.

COMPLAINTS

The applicant complains under various Articles of the Convention, including Article 5 § 1 , and Article 6 §§ 1 and 2 of the Convention about: (a) being unlawfully detained between 18 and 22 September 2011, (b) lack of reasoning of the Constitutional Court ’ s decision, and (c) a breach of the presumption of innocence.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention? The Government are invited to submit a copy of the relevant delivery slip ( dostavnica ) as proof of when the applicant was served with the decision of the Constitutional Court issued on 20 April 2012.

2. Was the applicant ’ s deprivation of l iberty between 18 and 22 September 2011 in breach of Article 5 § 1 of the Convention? In particular, was the statutory time-limit of two months specified in Article 179 of the Criminal Procedure Code 2009 mandatory or not? The Government are also requested to submit any other decision of the Constitutional Court related to detention when the statutory time-limits had elapsed.

3. Did the applicant have a fair hearing in accordance with Article 6 § 1 of the Convention (see mutatis mutandis , Hiro Balani v. Spain , 9 December 1994, §§ 27-28, Series A no. 303 ‑ B, and Helle v. Finland , 19 December 1997, § 60, Reports of Judgments and Decisions 1997 ‑ VIII), in particular having regard to the fact that the Constitutional Court decision of 20 April 2012 did not address the question of whether the absence of a signature and stamp in the copy of the detention order of 22 September 2011 rendered it unlawful?

4. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case (see Matijašević v. Serbia, no. 23037/04, §§ 47-51, ECHR 2006 X; see also Deweer v. Belgium, 27 February 1980, § 56, Series A no. 35; Minelli v. Switzerland, 25 March 1983, §§ 27, 30 and 37, Series A no. 62; Al lenet de Ribemont v. France, 10 February 1995, §§ 35-36, Series A no. 308; and Karakaş and Yeşilırmak v. Turkey, no. 43925/985, § 49, 28 June 2005)?