SECOND SECTION

Application no . 25381/12 Nenad GRUJOVIĆ against Serbia lodged on 18 April 2012

STATEMENT OF FACTS

The applicant, Mr Nenad Grujović , currently detained at the Belgrade Central Prison, is a Serbian national, who was born in 1977 and lives in Belgrade. He is repres ented before the Court by Ms Z. Dobričanin ‑ Nikodinović , a lawyer practising in Belgrade.

A. The circumstances of the case

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

On 11 January 2007 the investigating judge of the Belgrade District Court (“the District Court”) decided to open an investigation against the applicant on suspicion of having participated in aggravated murder, unauthorised use of another person ’ s vehicle and forgery. The same day the investigating judge issued a warrant for his arrest and ordered detention on the following grounds: (1) the risk of absconding, (2) the risk of obstructing the course of justice by exerting pressure o n witnesses and co-accused, (3) the risk of reoffending, and (4) the serious nature of the offences with which he had been charged and the severity of the penalty which could be imposed on him if found guilty. The one-month period of detention was to be calculated from the applicant ’ s arrest.

On 6 July 2007 the applicant was extradited from Austria to Serbia and detained pursuant to the above-mentioned order.

On 6 August and 4 October 2007, respectively, the District Court and the Supreme Court of Serbia (“the Supreme Court”) extended further the applicant ’ s detention, relying on the same grounds as before.

On 31 December 2007 the public prosecutor issued an indictment against the applicant and two other persons who were at large.

The first hearing in the applicant ’ s case was held on 8 December 2008 before the District Court. The court subsequently held eleven more hearings (on 10 February and 16 March 2009, 10 March, 16 April and 23 July 2010, 21 June and 30 November 2011, 14 February, 26 April, 25 May and 22 June 2012) at which a number of witnesses were examined. The court also requested expert evidence a number of times. The proceedings had to be conducted anew four times due to the change of a presiding judge. It would appear that the case is still pending before the Belgrade High Court (following a reform of the domestic judicial system; “the High Court”).

The applicant ’ s detention was regularly examined and extended every two months by the District Court and the Supreme Court, and, following a reform of the domestic judicial system, by the High Court and the Belgrade Court of Appeal (“the Court of Appeal”). From 26 March 2009 onwards it was extended only on the following three grounds: (1) the risk of absconding, (2) the risk of reoffending, and (3) the serious nature of the offences with which he had been charged and the severity of the penalty which could be imposed on him if found guilty.

The applicant repeatedly challenged his detention. On 29 December 2011 he lodged a constitutional appeal complaining that his pre-trial detention was unlawful and excessively long. He also complained about the length of the criminal proceedings and the alleged violation of his right to be presumed innocent.

It appears that in April 2012 he went on a hunger strike for one month.

On 26 September 2012 the Constitutional Court rejected the applicant ’ s appeal. As regards the lawfulness of the detention, the court held that the domestic courts had referred to the specific facts of the case and the applicant ’ s personal circumstances and had not used general and abstract arguments for his continued detention. There was a reasonable suspicion, from the documents on the file, that the applicant had committed criminal offences imputed to him. The court held in particular:

“The conclusion [of the lower domestic courts] that the ground for detention from Article 142 § 1(1) [the risk of absconding] of the Code of Criminal Procedure still exists, is justified, having in mind that after the opening of the criminal investigation against him, the accused was not available to the law enforcement authorities for a longer period of time because he was abroad, and in view of the fact that he was arrested in Austria and extradited to Serbia on 6 July 2007 ... the above circumstances justify the fear that if released he would abscond ...

The conclusion [of the lower domestic courts] that the ground for detention from Article 142 § 1(3) [the risk of reoffending] of the Code of Criminal Procedure still exists, is justified in view of the fact that the accused had already been convicted for criminal offences involving physical force [robbery] ... and having in mind the nature and number of criminal offences imputed to him [in the present case] which were committed in a short period of time ... [the court considers that] these facts represent special circumstances which justify the fear that, if released, he would reoffend.

The conclusion [of the lower domestic courts] that the ground for detention from Article 142 § 1(5) [the serious nature of the offences with which he had been charged and the severity of the penalty which could be imposed on him if found guilty] of the Code of Criminal Procedure still exists, is justified, in view of the fact that he has been charged with ... criminal offences punishable by imprisonment for more than ten years, and in view of the manner in which the offences were committed ... in particular, according to the indictment, the accused had showed particular brutality and determination towards the victim.”

As regards the length of the detention, the Constitutional Court concluded that it had been reasonable in view of the complexity of the case: it concerned three co-accused, several criminal offences and complex legal and factual issues.

As regards the complaint about the length of the criminal proceedings, the Constitutional Court noted that the case in issue was a complex one, the case file contained more than one thousand pages and extensive photo documentation. Furthemore , the court proceedings had had to start anew four times due to the change of a presiding judge. Many procedural steps had been taken, numerous witnesses had been heard and a few expert testimonies had been conducted.

Lastly, the Constitutional Court rejected the applicant ’ s complaint concerning the presumption of innocence as unsubstantiated.

The applicant ’ s subsequent constitutional appeals, containing the same complaints, were rejected on 26 and 27 September, and 10 October 2012 for the same reasons as before.

B. Relevant domestic law

Article 16 of the Code of Criminal Procedure 2001 [1] provides that the suspect has the right to be brought promptly before a judge and to be tried without delays. The competent criminal court must conduct proceedings without delays and prevent any abuse of process by the parties.

Reasons for detention are outlined in Article 142 of this Code. Detention will be ordered if there is a reasonable suspicion that the accused has committed the criminal offence in question and if, inter alia , there is a possibility that the accused would abscond (Article 142 § 2(1)), obstruct the course of justice (destroy the evidence or influence the witnesses or obstruct the course of justice in some other way) (Article 142 § 2(2)), reoffend (Article 142 § 2(3)), or if the criminal offence in question is punishable by a sentence of more than ten years ’ imprisonment and the manner in which the offence was committed, or other special aggravating circumstances, justify the accused ’ s detention (Article 142 § 2(5)).

COMPLAINTS

The applicant complains under Article 5 § 3 of the Convention about the length of his pre-trial detention and under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.

QUESTIONS TO THE PARTIES

1. Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention (see Tomasi v. France , 27 August 1992, Series A no. 241 ‑ A)?

2. 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 Foti and Others v. Italy , 10 December 1982, Series A no. 56) ?

[1] Zakon o krivičnom postupku , Official Gazette of the Federal Republic of Yugoslavia nos. 70 /01 and 68/02; and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09, 72/09 and 76/10.