Published on 16 January 2023

FOURTH SECTION

Application no. 2806/20 Radisav ČOLOVIĆ against Serbia lodged on 20 December 2019 communicated on 20 December 2022

SUBJECT MATTER OF THE CASE

The applicant was detained for 27 hours on suspicion of committing a fraud.

On 4 July 2019 the Constitutional Court found a violation of the applicant’s right to have his detention reviewed speedily as it took the competent court around 15 instead of 4 hours as prescribed by Article 294 § 3 of the Criminal Procedure Code to decide on his appeal against the detention order. The Constitutional Court ordered the publishing of its decision finding it a sufficient just satisfaction and awarded no financial compensation to the applicant.

Invoking Article 5 §§ 1, 4, and 5 and Articles 6 and 13 of the Convention, the applicant complains that the Constitutional Court did not award him any compensation for the breach of his rights guaranteed by Article 5 § 4.

QUESTIONS TO THE PARTIES

Has the applicant had an effective and enforceable right to compensation as required by Article 5 § 5 of the Convention for his detention which had been found to be in contravention of Article 5 § 4 by the Constitutional Court in its decision of 4 July 2019? In particular,

(a) was the mechanism for claiming damages for wrongful deprivation of liberty provided for by the Criminal Procedure Code (Articles 583-595) an available remedy for the applicant within the meaning of Article 5 § 5?

(b) could the applicant claim damages before the civil courts under the general rules of tort law based on the Constitutional Court’s decision finding a violation of his fundamental rights, or would he be required to prove a violation of his rights before the competent court (see the Constitutional Court’s decision Už-9428/2017 of 27 September 2018)?

(c) bearing in mind the Constitutional Court’s competence to award damages when it finds a violation of one of the rights enshrined in the Constitution of Serbia, was the applicant required to lodge another claim for compensation in order to comply with the exhaustion rule (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009)?