SECOND SECTION

Application no. 36470/06 Goran PETROVIĆ and Igor GAJIC against Serbia lodged on 4 September 2006

STATEMENT OF FACTS

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

1. Concerning the applicants ’ alleged torture

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

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

On 13 May 2003 the applicants were brought before the investigating judge who remanded them in custody pending criminal investigation against them. The applicants complained that they had been tortured, but it would appear that no steps were taken in this regard 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.

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 inte rnal investigation on 12 September 2003. On 17 September 2003 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 hematoma 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 to further investigate this case, identify the persons who had used force, examine the reasons why the force had been used, and sanction those responsible in case it found that the grounds for responsibility existed. It is not clear whether the Ministry of Interior did so.

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.

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

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

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

On 13 January 2005, the applicants asked the public prosecutor to interview certain police officers, but it would appear that they have received no response.

On 17 June 2005, the applicants filed another criminal complaint, indicating the names of the alleged perpetrators for the first time, but again it would appear that they have received no response.

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

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. It is not clear, however, whether the entire report was delivered to them or a part of it.

2. Facts concerning the criminal proceedings against the applicants

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.

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.

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

On 30 September 2005 the Supreme Court of Serbia changed the legal qualification of the applicants ’ offence and upheld the reminder of the first-instance judgement.

The applicants appealed on points of law complaining that the judges dealing with their case had acted under the 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 testimony of 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.

On 24 March 2006, the Supreme Court of Serbia, in another formation rejected the applicants ’ appeal on points of law. The applicants received that decision on 9 June 2006.

B. Relevant domestic law

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.”

The Code of Criminal Procedure 2001 (published in 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 subject to private prosecution. By 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

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.

QUESTIONS TO THE PARTIES

1. Is the applicants ’ complaint under the procedural aspect of Article 3 compatible with the provisions of the Convention, ratione temporis , given that their alleged ill-treatment by the police dates back to 2003 (see Stanimirović v. Serbia , no. 26088/06, § 28, 18 October 2011 and the authorities cited therein) ?

2. Having regard to the above complaints under Article 3, have the applicants complied with the six-month time- limit laid down in Article 35 § 1 of the Convention (see Stanimirović , cited above, and the authorities cited therein) ?

3. Having regard to the proce dural protection from torture (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? The Government are request ed to submit the following documents:

a) a copy of the entire files concerning the applicants ’ alleged ill-treatment from the Inspector General ’ s Service (notably, all its reports concerning this case) , the Office of the Public Prosecutor in Kruševac , and the Kruševac Prison ( notably , the official note drafted by prison staff on 3 April 2003);

b) a copy of the applicants ’ medical files from the Ćićevac Ambulance and the Varvarin Police Station;

c) the Inspector General ’ s Service Ordinance 2001 ( Pravilnik o radu službe Generalnog inspektora RJB ) and

d) a copy of the entire criminal file from the criminal proceedings against the applicants.

4. Did the applicant s have a fair hearing in the determination of the criminal charges against them , in accordance with Article 6 § 1 of the Convention? In particular, was the court which dealt with the applicant s ’ case independent and impartial , as required by Article 6 § 1 of the Convention?