2 December 2010

SECOND SECTION

Application no. 34661/07 by Mihailo MUČ IBABI Ć against Serbia lodged on 3 August 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Mihailo Mučibabić , is a Serbian citizen who was born in 1926 and lives in Novi Sad . He is repres ented before the Court by Mr D. Ukropina , a lawyer practising in Novi Sad .

A. The circumstances of the case

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

On 23 June 1995 an explosion occurred at facilities of Grmeč , a company headquartered in Belgrade . As a result, the applicant ’ s son and ten other people died. It transpires from the case file that the facilities of Grmeč were used for the production of rocket fuel by another company, JPL Systems, at the request of the State Security Service and that the fuel was most likely earmarked for the SVK forces (one of the parties in the 1991-95 war in Croatia) and/or VRS forces (one of the parties in the 1992-95 war in Bosnia and Herzegovina). It would further appear that neither Grmeč nor JPL Systems was licensed for the production of rocket fuel at the material time and that the relevant authorities failed to take measures that were necessary and sufficient to avert the risks inherent in that dangerous activity.

On 8 March 1996 the applicant lodged a criminal complaint against a number of senior executives of Grmeč and JPL Systems.

On 27 July 1999 an investigating judge interviewed Mr Radosav Lukić , Deputy Head of the State Security Serv ice, and on 18 February 2000 Mr Jovica Stanišić [1] , Head of the State Security Service.

On 12 June 2000 the public prosecutor decided not to prosecute, relying on secret evidence.

On 21 June 2000 the applicant started a subsidiary prosecution and asked the Belgrade District Court to conduct an investigation. Having established that rocket fuel had been produced at the request of President Milošević [2] and Mr Stanišić , on 3 October 2000 the Belgrade District Court decided not to investigate. On 28 December 2000 the Supreme Court of Serbia quashed that decision and sent the case back to the Belgrade District Court.

The Belgrade District Court then interviewed several persons and closed the investigation on 8 April 2003.

On 22 April 2003 the applicant filed an indictment against four former senior executives of Grmeč and JPL Systems and Mr Lukić , former Deputy Head of the State Security Service.

The trial started before the Belgrade District Court on 14 May 2004.

The trial recommenced before a new trial chamber on 12 February 2007.

The trial recommenced once again b efore a new trial chamber on 11 February 2008.

The trial recommenced before yet another trial chamber on 24 June 2009.

On 19 February 2010 Mr Lukić was found dead in Belgrade .

On 10 September 2010 the applicant complained to the Constitutional Court about the length of the criminal proceedings described above.

It would appear that the case is still pending before the Belgrade Higher Court (which has taken over the case from the former Belgrade District Court after the recent reform of the Serbian judiciary) and the Constitutional Court . It would further appear that the applicant has not yet sought damages either in the context of the criminal proceedings (by filing a civil-party claim) or in separate civil proceedings.

B. Rele vant domestic law

The Criminal Code 1977 (published in Official Gazette of the Socialist Republic of Serbia – “OG SRS” – no. 26/77, amendments published in OG SRS 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 – “OG RS” – 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 provisions read as follows:

Article 187 (Causing of general danger)

“(1) Whoever by fire, flood, explosive, poison or poisonous gas, ionising or radioactive radiation, engine power or other generally dangerous act or generally dangerous means causes danger to life or body of people or to property of larger scale, shall be punished with imprisonment of from six months to five years.

(2) The penalty specified in paragraph 1 of this Article shall also be imposed on an official or responsible person who fails to install prescribed equipment for protection against fire, explosion , flood, poison , poisonous gas, ionising or radioactive radiation , or fails to maintain these in proper order, or fails to use the equipment in time of need, or generally fails to observe regulations or technical protection standards and thereby causes danger to life or body or to property of larger scale .

(3) If the venue of offences specified in paragraphs 1 and 2 of this Article is where a number of people are gathered, the offender shall be punished with imprisonment of from one to eight years.

(4) If the offence specified in paragraphs 1 and 3 of this Article is committed by negligence, the offender shall be punished with imprisonment of up to three years. ”

Article 194 § 2 (Grave offences against general safety)

“ If the offenc e specified in Article 187 §§ 1- 3, Article 188 § 1, Article 189 §§ 1- 2 and Article 190 § 1 hereof, resulted in death of one or more persons, the offender shall be punished with imprisonment of not less than three years . ”

The Criminal Code 2005 (published in OG RS no. 85/05 of 6 October 2005, amendments published in OG RS nos. 88/05 of 14 October 2005, 107/05 of 2 December 2005, 72/09 of 3 September 2009 and 111/09 of 29 December 2009) entered into force on 1 January 2006. It contains similar provisions (Articles 278 and 288 § 2 thereof ) , but the prescribed penalties are now imprisonment of from one to six years (instead of imprisonment of from one to eight years) for causing of general danger at a venue where a number of people are gathered and imprisonment of from two to twelve years (instead of imprisonment of not less than three years ) for offences against general safety which resulted in the death of one or more persons.

The Code of Criminal Procedure 2001 (published in Official Gazette of the Federal Republic of Yugoslavia – “OG FRY” – no. 70/01 of 28 December 2001, amendments published in OG FRY no. 68/02 of 19 December 2002 and OG RS nos. 5 8/04 of 28 May 2004, 85/05 of 6 October 2005, 115/05 of 27 December 2005, 49/07 of 29 May 2007, 20/09 of 19 March 2009 and 72/09 of 3 September 2009) entered into force on 28 March 2002. Most criminal offences (including those mentioned above) 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 certain 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.

COMPLAINT

The applicant alleges that the respondent State has failed to carry out a prompt and effective investigation into his son ’ s death. He relies on Article s 6 and 13 of the Convention .

QUESTIONS TO THE PARTIES

1. Is the issue under the procedural aspect of Article 2 compatible with the provisions of the Convention, ratione temporis , given that the impugned fatal accident dates back to 1995 (see Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009 ; Agache and Others v. Romania , no. 2712/02 , 20 October 2009 ; Velcea and Mazăre v. Romania , no. 64301/01 , 1 December 2009 ; Şandru and Others v. Romania , no. 22465/03 , 8 December 2009 ; and Tuna v. Turkey , no. 22339/03 , 19 January 2010 ) ?

2. Having regard to the issue under the procedural aspect of Article 2, has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90 , ECHR 2009 ‑ ..., and the authorities cited therein) ?

3. Having regard to the procedural protection of the right to life (see Öneryıldız v. Turkey [GC], no. 48939/99, § § 91-96 , ECHR 2004 ‑ XII , and the authorities cited therein ), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

4. The respondent Government are requested to provide extracts from the companies register indicating the ownership structure of Grmeč and JPL Systems in June 1995 as well as any and all subsequent changes.

5. The Government are also requested to submit a copy of the entire file concerning this case from the Belgrade Higher Court (which has taken over the case from the former Belgrade District Court after the recent reform of the Serbian judiciary).

[1] On 1 May 2003 the International Criminal Tribunal for the former Yugoslavia (“ICTY”) indicted Mr Stanišić for serious violations of international humanitarian law committed in Bosnia and Herzegovina and Croatia in the period 1991-95. He was arrested on 13 March 2003 and transferred to the ICTY on 11 June 2003. His trial commenced on 28 April 2008.

[2] On 24 May 1999, 8 October and 22 November 2001 the ICTY indicted Mr Milošević for serious violations of international humanitarian law committed in Kosovo , Croatia and Bosnia and Herzegovina , respectively, in the period 1991-99. He was arrested on 1 April 2001 and transferred to the ICTY on 29 June 2001. His trial commenced on 12 February 2002. He died on 11 March 2006.