SECOND SECTION

Application no. 18428/10 Jelena KRSTIĆ against Serbia lodged on 15 March 2010

STATEMENT OF FACTS

The applicant, Ms Jelena Krstić , is a Serbian national, who was born in 1948 and lives in Belgrade . She is represented before the Court by Mr R. Subašić , a lawyer practising in the same city.

A. The circumstances of the case

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

On 25 April 2007 the Municipal Court ( Opštinski sud ) in Niš found the applicant guilty of malfeasance ( zloupotreba službenog položaja ) and forging official documents ( falsifikovanje službene isprave ) and sentenced her to eleven months in prison, suspended for a period of three years ( uslovna osuda ).

On 14 June 2007, within fifteen days as of the date of receipt of this judgment, the applicant personally filed a timely appeal with the District Court ( Okružni sud ) in Niš . This appeal referred to the legal grounds set out in Article 367 of the Code of Criminal Procedure ( Zakonik o krivičnom postupku , see at B.3 below), but did not offer any reasoning. The applicant, however, noted that detailed reasoning would be provided subsequently.

On 11 July 2007 a memorial containing such reasoning was submitted to the District Court. It was signed by the applicant ’ s newly retained counsel and stated that it should be deemed as the substantiation of the earlier appeal lodged by the applicant personally. The submission referred to the legal grounds relied on by the applicant in her appeal, but was particularly focused on factual and evidentiary issues.

On 26 March 2008 the District Court accepted a separate appeal filed by the Municipal Public Prosecutor ( Opštinski javni tužilac ) and, in so doing, amended the applicant ’ s sentence to an effective prison term ( zatvor ) of eight months. The applicant ’ s original appeal of 14 June 2007 was examined pursuant to Article 380 § 1 of the Code of Criminal Procedure (see at B.3 below), but was ultimately dismissed as being without merit ( odbijena kao neosnovana ). The memorial of 11 July 2007 was considered as a separate appeal lodged by the applicant ’ s counsel, and was rejected as belated ( odbačena kao neblagovremena ). The applicant ’ s conviction and sentence thus became final ( pravosnažna ).

In May 2008 the applicant filed a further appeal on points of law ( zahtev za ispitivanje zakonitosti pravosnažne presude ), which would appear to have been rejected at some point thereafter.

On 12 May 2008 the applicant lodged an appeal with the Constitutional Court ( žalba Ustavnom sudu ). She complained, inter alia , about the procedural fairness in general, the outcome of the criminal case against her, and District Court ’ s refusal to consider the arguments contained in the memorial of 11 July 2007. In conclusion, the applicant requested that the District Court ’ s decision be quashed and the proceedings reopened.

On 22 December 2009 the Constitutional Court ruled that there had been a violation of the applicant ’ s right to a fair he aring in breach of Article 32 § 1 of the Constitution (see at B.1 below). The remainder of the constitutional appeal was dismissed.

In its reasoning, the Constitutional Court held, inter alia , that the District Court ’ s decision of 26 March 2008 had misinterpreted the character of the memorial of 11 July 2007. It should, indeed, have been accepted for what it was, i.e. the substantiation of the earlier appeal lodged by the applicant personally. The arguments contained therein should, hence, also have been considered. Simultaneously, however, the Constitutional Court ruled that the applicant ’ s conviction had been well-founded and, further, that there had been no breach of her “right to an appeal or another legal remedy” within the meaning of Article 36 § 2 of the Constitution (see at B.1 below). Specifically, concerning the latter, the District Court had not disregarded the applicant ’ s appeal altogether, having considered it in accordance with Article 380 §1 of the Code of Criminal Procedure (see at B.3 below).

The Constitutional Court ’ s decision was received by the applicant on 22 February 2010.

In the meantime, having been forcibly taken to the Požarevac Penetentiary ( Kazneno-poravni zavod u Požarevcu ), the applicant apparently attempted to commit suicide. Ultimately, however, she served the full sentence imposed by the courts.

B. Relevant domestic law and practice

1. The Constitution of the Republic of Serbia 2006 ( Ustav Republike Srbije ; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06)

Article 32 § 1 provides that “[e] veryone shall have the right to ... [a fair hearing before a] ... tribunal ... [in the determination] ... of ... any criminal charges against him”.

Article 36 § 2 provides that “e veryone shall have the right to an appeal or another legal remedy against a decision concerning the determination of his rights, obligations or lawful interests”.

Article 170 provides that a “constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.”

2. The Constitutional Court Act ( Zakon o Ustavnom sudu ; published in OG RS no. 109/07)

The relevant provisions of this Act read as follows:

Article 7 § 1

“The decisions of the Constitutional Court shall be final, enforceable and binding.”

Article 82 § 1

“A constitutional appeal may be lodged against an individual decision or an action of a State body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law.”

Article 84 § 1

“A constitutional appeal may be lodged within thirty days of receipt of the individual decision or the date of commission of the actions ... [in question] ...”

Article 89 § 2

“When the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time.”

3. The Code of Criminal Procedure ( Zakonik o krivičnom postupku , published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 70/01 and 68/02, as well as in OG RS nos. 58/04, 85/05, 115/05, 46/06 and 49/07)

Article 363 § 1 provides that an appeal against a judgment rendered at first instance may be filed within a period of fifteen days as of its receipt.

Article 364 § 1 provides, inter alia , that such an appeal may be filed by the defendant as well as his or her legal counsel.

Article 366 § 2 provides, inter alia , that where an appeal has been filed by the defendant personally, but where its reasoning has not been submitted at the same time, the court shall invite the defendant to supplement his appeal by a certain deadline. Should he fail to do so, his appeal shall nevertheless be considered by the appellate court unless the impugned decision itself cannot be identified.

Article 367 provides that an appeal may be filed on the grounds of: ( i ) significant procedural deficiencies; (ii) misapplication of the relevant substantive legislation; (iii) erroneously established facts of the case; and (iv) any issues regarding the sentence imposed.

Article 380 § 1 provides, inter alia , that an appellate court shall examine the impugned judgment only in respect of the objections raised in the appeal. It shall nevertheless always consider, of its own motion, whether certain procedural rules were adhered to, as well as whether the relevant substantive legislation was misapplied to the detriment of the accused.

4. Relevant domestic case-law

An appellate court shall be obliged to examine any submission filed as a supplement to a prior timely appeal lodged by the defendant, insofar as the former relates to the legal grounds specifically stated in the latter. This shall also be the case in a situation where supplemental reasoning has been filed following the expiration of the statutory deadline for the original appeal (see the Joint conclusion of the criminal division of the Supreme Court of Yugoslavia and the criminal divisions of the Supreme Courts of the then constituent federal republics, respectively, of 7-9 December 1965; see also the decision of the Supreme Court of Serbia Kž . 60/71, dated 17 December 1971, and the Federal Court ’ s own decision Kps . 36/99 of 1999).

COMPLAINTS

The applicant refers to Articles 5 and 6 of the Convention, as well as Article 2 of Protocol No. 7. In substance, however, she complains about: (a) the general fairness of the criminal proceedings brought against her; (b) her wrongful conviction; (c) the District Court ’ s refusal to properly assess her appeal, as supplemented by the memorial of 11 July 2007; and (d) the respondent State ’ s ultimate failure to adequately summon her for the purpose of serving the sentence imposed, which resulted in her being forcibly taken to the Požarevac Penitentiary.

QUESTIONS TO THE PARTIES

1. May the applicant claim to be a victim of a violation of the Convention and/or Protocol No. 7, within the meaning of Article 34 of the former ? In particular, has the Constitutional Court ’ s decision of 22 December 2009 afforded her adequate redress?

2. Has there been a breach of Article 6 § 1 of the Convention and/or Article 2 of Protocol No. 7? In particular, was the applicant denied the “right to a court” in the determination of the criminal charge brought against her and/or “the right of appeal in criminal maters” due to the District Court ’ s rejection of the memorial dated 11 July 2007?