Communicated on 14 April 2014

SECOND SECTION

Application no. 27524/06 Dusko VIDAKOVIĆ against Montenegro lodged on 2 June 2006

STATEMENT OF FACTS

The applicant, Mr Du š ko Vidaković , is a Montenegrin national, who was born in 1964 and lives in Bar. He is repres ented before the Court by Mr M. Mirović , a lawyer practising in Bar.

A. The circumstances of the case

1. The criminal proceedings

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

On 8 September 1987 the applicant was involved in a car accident in which two people died.

On 17 August 1988 he was charged with a serious traffic offence.

On 11 November 2002, after two remittals, the Court of First Instance ( Osnovni sud ) in Kotor found the applicant guilty in his absence and sentenced him to two years of imprisonment. On 23 September 2004 the High Court ( Vi Å¡ i sud ) in Podgorica upheld this judgment.

On an unspecified date between 23 September 2004 and 28 February 2005 the judgments were transmitted to the Court of First Instance in Bar for enforcement, which is when the applicant learned about them.

On 22 March 2005 the Court of First Instance in Kotor reopened the proceedings, following the applicant ’ s req uest to that effect filed on 28 February 2005.

On 9 May 2005 the Court of First Instance found the applicant guilty of jeopardising traffic, sentenced him to two years of imprisonment and prohibited him from driving.

On 19 December 2006 the High Court quashed this judgment.

On 30 March 2007 the Court of First Instance in Kotor issued a detention order against the applicant so as to ensure his presence at the next hearing given that he had failed to appear at the pr evious hearing scheduled for 29 March 2007. In its decision the court stated, inter alia , that the proceedings at issue had been pending for 20 years and that the criminal prosecution was to become time-barred on 8 September 2007.

On 14 March 2008 the Court of First Instance found the applicant guilty and sentenced him to two years of imprisonment.

On 5 May 2008 the applicant appealed, submitting that the prosecution against him had become time-barred and relying on section 125 of the Criminal Code (see at B.3 below).

On 12 February 2009 the High Court dismissed the applicant ’ s appeal, and proceeded ex officio to uphold the judgment rendered by the Court of First Instance on 11 November 2002. The court also held that the application of statutory provisions relating to prescription was “out of the question as the reopened criminal proceedings were not criminal prosecution (which was concluded by a judgment) but were conducted upon the applicant ’ s request and to his benefit”.

On 24 March 2009 the applicant filed an appeal on points of law with the Supreme Court ( Vrhovni sud ) proposing, inter alia , that the proceedings be terminated as the prosecution had become time-barred.

On 4 June 2009 the Supreme Court upheld the High Court judgment. It did not address the question of whether the criminal prosecution had become time-barred or not.

2. Other relevant facts

Between October and December 2007 the applicant sought the exemption of all the judges of the Court of First Instance in Kotor , including the judge processing his case, on the grounds that they had pursued the proceedings against him even though the criminal prosecution had become time-barred, and requested that the case be delegated to another court. These requests were rejected by 14 December 2007.

On 21 January 2008 the applicant filed a criminal complaint ( krivi č na prijava ) for abuse of office against the judge in charge of processing the case against him. In doing so the applicant maintained, in particular, that the court should have terminated the proceedings against him as the prosecution of the criminal offence that he was charged with had become time-barred.

On 26 January 2008 the State Prosecution ( Osnovno dr ž avno tu ž ila š tvo ) rejected the applicant ’ s criminal complaint relying on the Conclusion of the Criminal Departments of the Federal Court, the Supreme Courts and the Supreme Military Courts of 26 March 1985, which provided that once a judgment finding a defendant guilty in his absence became final the criminal prosecution could not become time-barred if the criminal proceedings were later reopened (see at B.4 below). The Conclusion was apparently explained by an opinion that if the prosecution could become time-barred that would favour those defendants who more or less skilfully avoided attending a trial.

On an unspecified date in 2008 the applicant filed a compensation claim against the State for convicting him after the prosecution of a particular criminal offence had become time-barred.

On 9 March 2010 the Court of First Instance ruled against the applicant, which decision was upheld by the High Court and the Supreme Court by 26 October 2010. On 12 July 2011 the Constitutional Court dismissed the applicant ’ s constitutional appeal as unfounded.

B. Relevant domestic law

1. The Criminal Act of the Socialist Republic of Montenegro (published in the Official Gazette of the Socialist Republic of Montenegro nos. 22/77, 25/77, 9/78, 17/84, 28/87, 27/89, 03/90, 56/92 and 21/93)

Section 185 (3) provided that a person who participated in traffic and failed to comply with the traffic rules thus negligently ( iz nehata ) jeopardising human lives and causing light bodily injuries would be punished with an imprisonment of up to one year.

Section 190 (5) provided that if due to the criminal offence under section 185 (3) one or more persons died, the perpetrator would be punished with an imprisonment of between one year and eight years.

2. The Criminal Act of the Federal Republic of Yugoslavia (published in the Official Gazette of the Federal Republic of Yugoslavia nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90, 54/90, 35/92, 37/93, 24/94, 61/01)

Section 95 (1) provided, inter alia , that a criminal prosecution could not be undertaken after ten years as of those criminal offences for which the courts could impose imprisonment of more than five years and less than ten years.

Section 96 (6) provided that the criminal prosecution became time-barred in any event after the passage of double the time required for a criminal prosecution to become time-barred.

3. The Criminal Code of Montenegro (published in the Official Gazette of the Republic of Montenegro nos. 70/03, 13/04, and 47/06, and the Official Gazette of Montenegro nos. 40/08, 25/10, 73/10, 32/11, 64/11, 40/13, and 56/13)

This Code entered into force on 1 April 2004 and thereby repealed all the other criminal law provisions contrary thereto. Articles 124 (1) and 125 (7), however, correspond to sections 95 (1) and 96 (6), respectively, of the Criminal Act of the Federal Republic of Yugoslavia.

4. The Conclusion of the Criminal Departments of the Federal Court, the Supreme Courts and the Supreme Military Courts of 26 March 1985

The said Conclusion provided that once a judgment finding a defendant guilty in his absence became final the criminal prosecution could not become time-barred if the criminal proceedings were reopened.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the length of the criminal proceedings conducted against him and the lawfulness of his conviction.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 6 § 1 of the Convention? In particular, was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention ( see, for example, Zana v. Turkey , 25 November 1997, §§ 74-85, Reports of Judgments and Decisions 1997 ‑ VII; Lehtinen v. Finland , no. 34147/96, §§ 29-35, 13 September 2005; Gavula v. Ukraine, no. 52652/07 , § 99, 16 May 2013; see, also, mutatis mutandis , Jablonski v. Poland , no. 33492/96, §§ 96 and 105, 21 December 2000) ?

2. Has there been a violation of Article 6 § 1 and/or Article 7 of the Convention in the light of the applicant ’ s complaint that his conviction was unlawful given that it took place after the prosecution allegedly became time-barred? Specifically, was the principle of legal certainty implicit in Article 6 § 1 of the Convention complied with? Finally, was the penalty imposed clearly defined (i.e. foreseeable) by the relevant domestic legislation and practice, as required under Article 7 of the Convention (see the relevant criminal law provisions and the Conclusion of the Criminal Departments of the Federal Court, the Supreme Courts and the Supreme Military Courts of 26 March 1985 at B.1 – B.4 in the summary of facts; see also, mutatis mutandis , De Moor v. Belgium , 23 June 1994, § 55 in fine , Series A no. 292 ‑ A; S.W. v. the United Kingdom , 22 November 1995, § 35, Series A no. 335 ‑ B, C.R. v. the United Kingdom , 22 November 1995, § 33, Series A no. 335 ‑ C; Kokkinakis v. Greece , 25 May 1993, § 52, Series A no. 260 ‑ A; Kafkaris v. Cyprus [GC], no. 21906/04, §§ 139-140, ECHR 2008, with further references; and mutatis mutandis , AnÄ‘elković v. Serbia , no. 1401/08 , §§ 27 and 29, 9 April 2013 ) ?

The Government are invited to submit the relevant domestic case- law, that is all the decisions issued in the reopened criminal proceedings against defendants who had been beforehand tried and found guilty in absence and in which a question of a time-barred prosecution was raised.