24 September 2010

Application no. 3363/08 by Slavko LAKATO Å and Others against Serbia lodged on 7 January 2008

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Slavko Lakato š , Mr Lajči Dimović , Mr Ivica Dimović , Mr Maćaš Dimović and Ms Ramajana Ametov , are Serbian nationals who were born in 1974, 1980, 1980, 1957 and 1979 respectively. They are represented before the Court by Mr V. Juhas Đ uri ć , a lawyer practising in Subotica .

A. The circumstances of the case

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

In the course of 2006 and 2007 about twenty robberies took place in the municipalities of Bačka Palanka , Bačka Topola , Bački Petrovac , Bečej , Kula, Novi Sad, Odžaci , Senta , Sombor and Vrbas (in northern Serbia). The main targets were older persons and some of them suffered grievous bodily harm. One such robbery took place in Kucura , a village in the vicinity of Vrbas , on 5 November 2007 at about 8 p.m. Shortly thereafter a police patrol spotted a suspicious vehicle near that village. Whilst they managed to arrest P.N., Mr Slavko Lakato š , Mr Lajči Dimović and Mr Ivica Dimović escaped. The next morning Mr Maćaš Dimović and Ms Ramajana Ametov went to give them a lift back to Subotica . A police patrol, however, stopped them before Subotica . All five of them were then arrested and taken to the Novi Sad Police Station.

On 6 November 2007 the investigating judge ordered that DNA samples be taken from the applicants. Later on, Ms Ramajana Ametov was released.

On 8 November 2007 Mr Slavko Lakato š , Mr Lajči Dimović , Mr Ivica Dimović and Mr Maćaš Dimović were taken to the investigating judge. They complained, in the presence of the public prosecutor, of beatings by the police. With the authorisation of the investigating judge, the applicants ’ counsel took photographs of their injuries. Mr Maćaš Dimović was then released, whereas the three others were remanded in custody on reasonable suspicion of having committed 22 robberies and in view of the severity of the potential sentence and the nature of the crime alleged (under Article 142 § 2 (5) of the Code of Criminal Procedure 2001).

On the same day the police held a press conference about this case. Reportedly, some of the highest-ranking officers at the Novi Sad Police Station referred to the applicants as members of a criminal group which had committed the robberies mentioned above (see Građanski list , a daily newspaper published in Novi Sad , 9 November 2007, p. 13). The photographs of four applicants ( Mr Slavko Lakato š , Mr Lajči Dimović , Mr Ivica Dimović and Mr Maćaš Dimović ) were released to the press.

Pursuant to an order of the investigating judge of 13 November 2007, Mr Slavko Lakato š , Mr Lajči Dimović and Mr Ivica Dimović were medically examined on the same day. According to the medical report, Mr Slavko Lakato š had bruises on the back of his head, left auricle, arms and legs, Mr Lajči Dimović on his forehead, left auricle, neck and legs, and Mr Ivica Dimović on his forehead, right shoulder, back and left foot.

On 5 December 2007, 4 February, 4 March, 1 April, 30 May, 30 July, 1 October and 1 December 2008, 30 January, 1 April and 1 June 2009 the Novi Sad District Court extended the pre-trial detention of Mr Slavko Lakato š , Mr Lajči Dimović and Mr Ivica Dimović in view of the severity of the potential sentence and the nature of the crime alleged (under Article 142 § 2 (5) of the Code of Criminal Procedure 2001). After their appeals had been rejected by the Supreme Court, the applicants lodged a constitutional appeal. On 25 December 2008 the Constitutional Court examined, among other things, whether the grounds for their pre-trial detention satisfied the requirements of a constitutional right equivalent to Article 5 § 1 of the Convention and decided that they did.

On 13 December 2007 Mr Maćaš Dimović and Ms Ramajana Ametov asked the investigating judge to inform them whether their DNA samples were still kept and, if so, to order their destruction. It would appear that they have never received any response.

On 29 February 2008 the public prosecutor issued an indictment. Mr Slavko Lakato š , Mr Lajči Dimović , Mr Ivica Dimović and P.N. were charged with 14 robberies and 3 attempted robberies. Mr Lajči Dimović was also accused of causing grievous bodily harm with intent to resist his arrest. On the same day the public prosecutor decided not to prosecute Mr Maćaš Dimović and Ms Ramajana Ametov .

Pursuant to an order of the investigating judge, another medical report on the injuries of Mr Slavko Lakato š , Mr Lajči Dimović and Mr Ivica Dimović was made on 22 September 2008. It stated that the injuries recorded on 13 November 2007 were less than a week old and had been caused by beating (the possibility that the injuries had been caused by falling was ruled out).

On 10 July 2009 the Novi Sad District Court found Mr Slavko Lakato š and Mr Ivica Dimović guilty of 13 robberies and 4 attempted robberies and sentenced them to 14 years and 6 months ’ imprisonment. It found Mr Lajči Dimović guilty of 13 robberies, 4 attempted robberies and causing grievous bodily harm to a police officer with intent to resist his arrest and sentenced him to 15 years ’ imprisonment. Their appeals are apparently still pending.

B. Rele vant domestic law and practice

The Criminal Code 2005 (published in Official Gazette of the Republic of Serbia no. 85/05, amendments published in Official Gazette nos. 88/05, 107/05, 72/09 and 111/09) has been in force since 1 January 2006.

Article 137 of the Code reads as follows :

Article 137 (Ill-treatment and Torture)

“ 1. Whoever ill-treats another or treats such person in humiliating and degrading manner shall be punished with imprisonment of up to one year.

2. Whoever causes severe pain or suffering to another for such purposes as obtaining from him or a third person a confession, a statement or information, or intimidating or unlawfully punishing him or a third person, or for any reason based on discrimination, shall be punished with imprisonment from six months to five years.

3. If the offence specified in paragraphs 1 and 2 above is committed by an official acting in an official capacity, the official shall be punished for the offence in paragraph 1 with imprisonment from three months to three years, and for the offence in paragraph 2 with imprisonment from one to eight years.”

The relevant part of Article 206 of the Code read, at the material time, as follows:

Article 206 (Robbery)

“1. Whoever by use of force against a person or threat of direct attack upon the life or body appropriates another ’ s tangible object with intent to acquire unlawful material gain for himself or a third person , shall be punished with imprisonment from two to ten years. ...

3. If the offence specified in paragraphs 1 and 2 above is committed by several persons or grievous bodily harm is intentionally caused , the offender shall be punished with imprisonment from three to fifteen years. ...”

The Code of Criminal Procedure 2001 (published in Official Gazette of the Federal Republic of Yugoslavia – “the FRY” – no . 70/01, amendments published in Official Gazette of the FRY 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) has been in force since 28 March 2002. Most criminal offences (including ill-treatment and torture) ar e subject to public prosecution . By Article 20 of the Code, the public prosecutor must prosecute when there is sufficient evidence that someone has committed a criminal offence which is subject to public prosecution. Under Article 142 § 1 (5) of the Code (former Article 142 § 2 (5)), a person may be remanded in custody on reasonable suspicion of having committed a crime if the potential sentence is imprisonment of more than ten years and the nature of the crime so warrants. Article 224 of the Code provides that a criminal complaint may be lodged with the public prosecutor also orally (that is, not only in writing). Furthermore, a criminal complaint lodged with the court should immediately be forwarded to the public prosecutor.

The Police Act 2005 (published in Official Gazette of the Republic of Serbia no. 101/05) has been in force since 29 November 2005. Pursuant to section 86 of that Act, whenever force has been used , the police officer concerned must submit a written report to his or her superior within 24 hours. The superior officer will then establish whether the force used has been justified and lawful.

Under the Civil Obligations Act 1978 (published in Official Gazette of the Socialist Federal Republic of Yugoslavia – “the SFRY” – no. 29/78, amendments published in Official Gazette of the SFRY nos. 39/85, 45/89 and 57/89, and Official Gazette of the FRY no. 31/93 ) a person who claims that public authorities or private individuals have violated his or her personal integrity, privacy or other personal rights may seek damages and/or an injunction in the civil courts in accordance with the general law of tort (see for instance judgment no. 3879/03 of the Belgrade First Municipal Court of 29 April 2004 and judgment no. 4810/04 of the same court of 10 November 2004 awarding compensation for a breach of the presumption of innocence under sections 172 and 200 of that Act ; see also judgment no. 2939/01 of the Šabac Municipal Court of 20 February 2002 ordering the cessation of discriminatory treatment and the publication of an apology under sections 157 and 199 of that Act ).

COMPLAINTS

The applicants complain under Article 3 that they were ill-treated while in police custody and that there was no effective official investigation into their ill-treatment . To support their claim they submitted some photographs of Mr Slavko Lakato š , Mr Lajči Dimović and Mr Ivica Dimović and their medical reports of 13 November 2007 and 22 September 2008. They also submitted some photographs of Mr Maćaš Dimović taken on 8 November 2007 showing bruises on his head, back and left shoulder.

Mr Slavko Lakato š , Mr Lajči Dimović and Mr Ivica Dimović complain under Article 5 that the severity of the potential sentence and the nature of the crime alleged could not, by itself, justify their pre-trial detention.

Mr Slavko Lakato Å¡ , Mr Lajči Dimović , Mr Ivica Dimović and Mr MaćaÅ¡ Dimović further complain that by referring to them, at a press conference, as members of a criminal group and by making their photographs available to the press the police violated Articles 6 § 2 and 8.

Lastly, Mr Maćaš Dimović and Ms Ramajana Ametov complain under Article 8 that they have not been able to obtain any information about the DNA samples taken from them on 6 November 2007 and, if still kept, to have them destroyed.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the application for damages and/or an injunction in the civil courts under the general law of tort an effective remedy within the meaning of this provision in respect of the applicants ’ complaints under Articles 6 § 2 and 8 of the Convention?

2 . Have the applicants been subjected to treatment contrary to Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, ECHR 1999 ‑ V , and Rehbock v. Slovenia , no. 29462/95, ECHR 2000 ‑ XII )? The Government are request ed to submit the report on the use of force concerning the arrest operation of 6 November 2007 prepared pursuant to section 86 of the Police Act 2005 and any follow-up reports .

3. Having regard to the procedural protection from ill-treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), has there been a breach of Article 3 of the Convention in the present case?

4 . Were there “relevant and sufficient” reasons for the pre-trial detention of Mr Slavko Lakato š , Mr Lajči Dimović and Mr Ivica Dimović , as required by Article 5 § 3 of the Convention (see Letellier v. France , 26 June 1991, Series A no. 207 , and Korchuganova v. Russia , no. 75039/01, 8 June 2006 ) ?

5. As regards the press conference of 8 November 2007 at which some of the highest-ranking officers at the Novi Sad Police Station reportedly referred to the applicants as members of a criminal group which had committed a number of robberies, was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case (see Allenet de Ribemont v. France , 10 February 1995, Series A no. 308 ) ?

6. Given the fact that the police made photographs of Mr Slavko Lakato Å¡ , Mr Lajči Dimović , Mr Ivica Dimović and Mr MaćaÅ¡ Dimović available to the press, was there a breach of Article 8 of the Convention in the present case (see Sciacca v. Italy , no. 50774/99, ECHR 2005 ‑ I , and Khuzhin and Others v. Russia , no. 13470/02, 23 October 2008 )? The Government are requested to submit any legislation governing the publishing of photograph s in the context of reporting on pending criminal proceedings .

7. As it would appear that Mr Maćaš Dimović and Ms Ramajana Ametov have not been able to obtain any information about their DNA samples and, if still kept, to have them destroyed, has there been a breach of the right to respect for their private life contrary to Article 8 of the Convention (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, 4 December 2008 ) ? The Government are requested to inform the Court about the storage, usage and destruction of the DNA samples taken from Mr Maćaš Dimović and Ms Ramajana Ametov on 6 November 2007 and to submit any legislation governing the storage, usage and destruction of DNA samples collected for the purposes of the investigation and prosecution of criminal offences.