SECOND SECTION

CASE OF MATIJAŠEVIĆ v. SERBIA

(Application no. 23037/04)

JUDGMENT

STRASBOURG

19 September 2006

FINAL

19/12/2006

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Matijašević v. Serbia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Mr	 , President,
	Mr	 ,
	Mr	 ,
	Mrs	 ,
	Mrs	 ,
	Ms	 	Mr	 
and Mrs  , Section Registrar,
Having deliberated in private on 29 August 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 23037/04) against the State Union of Serbia and Montenegro, subsequently succeeded by the Republic of Serbia (see paragraphs 22-25 below), lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by, at that time, a citizen of the State Union of Serbia and Montenegro, Mr Milija Matijašević (“the applicant”), on 20 May 2004.
2.  The applicant was represented by Mr V. Beljanski, Mr S. Beljanski and Ms G. Francuski, all lawyers practising in Novi Sad. The Government of the State Union of Serbia and Montenegro, initially, and the Government of Serbia, subsequently, (“the Government”) were represented by their Agent, Mr S. Carić.
3.  On 8 June 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided that the merits of the application would be examined together with its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1976 and is currently serving a prison sentence.
5.  On 7 May 2003 the applicant was arrested and remanded in custody by an investigating judge of the Novi Sad District Court on suspicion of fraud and murder.
6.  On 4 November 2003 the District Public Prosecutor’s Office in Novi Sad issued an indictment against the applicant on charges of fraud and incitement to commit murder.
7.  On 2 April 2004 the three-judge panel of the Novi Sad District Court extended the applicant’s detention on remand for another two months. In its reasoning, justifying this decision, the panel relied on the applicant’s prior convictions as well as his persistent anti-social behaviour. In addition, the panel expressly stated that the applicant had “committed the criminal offences which are the subject of this prosecution” (“počinio kriv. dela koja su predmet ove optužbe”) and concluded that the applicant, if released, would be likely to commit further offences.
8.  On 16 April 2004 the applicant appealed to the Supreme Court of Serbia, requesting that his detention be terminated or, alternatively, that the remand decision be quashed and the case remitted to the Novi Sad District Court for reconsideration. He argued, inter alia, that since the impugned decision had prejudged the outcome of the pending criminal case, it had blatantly breached his fundamental right to be presumed innocent as “guaranteed in the Code of Criminal Procedure, the Constitution of the Republic of Serbia and indeed Article 6 § 2 of the European Convention on Human Rights and Fundamental Freedoms”.
9.  On 22 April 2004 the Supreme Court of Serbia dismissed the appeal, focussing exclusively on the applicant’s prior criminal convictions and the alleged danger that he would commit further offences if released. It did not refer to the applicant’s submission concerning the presumption of innocence.
10.  On 27 May 2004 the Novi Sad District Court found the applicant guilty of incitement to murder and sentenced him to eight years in prison.
11.  On 23 September 2004 the Supreme Court of Serbia upheld the judgment of the Novi Sad District Court. As stated by the applicant in a separate case currently pending before this Court (application no. 31617/05), his lawyer received that decision on 7 March 2005.
II.  RELEVANT DOMESTIC LAW
A.  Charter on Human and Minority Rights and Civic Freedoms of the State Union of Serbia and Montenegro (Povelja o ljudskim i manjinskim pravima i građanskim slobodama državne zajednice Srbija i Crna Gora; published in the Official Gazette of Serbia and Montenegro - OG SCG - no. 6/03)
12.  Articles 19 and 9 § 2 of the Charter provided as follows:
Article 19
 “Everyone shall be deemed innocent until proved guilty of a criminal offence in a final decision of a court of law.”
Article 9 § 2
“Everyone who believes that any of his human or minority rights as guaranteed by this Charter have been violated or denied by an individual act or action of a State Union institution, or a member-state body or organization exercising public powers, shall have the right to submit a complaint to the Court of Serbia and Montenegro, if no other legal redress is provided in a member state, in accordance with the Constitutional Charter.”
B.  Constitutional Charter of the State Union of Serbia and Montenegro (Ustavna povelja državne zajednice Srbija i Crna Gora; published in OG SCG no. 1/03)
13.  The relevant part of Article 46 of the Constitutional Charter provided as follows:
“The Court of Serbia and Montenegro: ...
- shall examine complaints lodged by citizens in cases where an institution of Serbia and Montenegro has infringed their rights and freedoms as guaranteed by the Constitutional Charter, if no other legal redress has been provided; ...”
C.  Constitution of the Republic of Serbia (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia - OG RS - no. 1/90)
14.  Article 23 § 3 of this Constitution provides as follows:
 “No one shall be considered guilty of a criminal offence until so proved in a final decision of a court of law.”
D.  Obligations Act (Zakon o obligacionim odnosima; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - nos. 29/78, 39/85, 45/89, 57/89 and the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - no. 31/93)
15.  Sections 199 and 200 of the Obligations Act provided, inter alia, that anyone who had suffered fear, physical pain or, indeed, mental anguish as a consequence of a breach of “personal rights” (prava ličnosti) was entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.
E.	Court of Serbia and Montenegro Act (Zakon o Sudu Srbije i Crne Gore, published in OG SCG no. 26/03)
16.  The relevant provisions of this legislation were as follows:
Section 62 § 1
“A citizen’s complaint may be filed by anyone who considers that an individual act or action of an institution of Serbia and Montenegro, or a member-State body or organization exercising public powers, has violated his human or minority rights, if no other avenue of legal redress is available or if redress has not been secured within a member State.” 
Section 64
“A citizen’s complaint may be lodged within three months from the date of receipt of the individual decision or the commission or cessation of an action in violation of a human or minority right guaranteed by the Constitutional Charter.”
Section 65 §§ 1 and 2
“If the Court finds that an individual decision or action is in violation of a human or minority right guaranteed by the Constitutional Charter, it may annul the individual decision in question, prohibit the continuation of such actions or order the implementation of other specific measures and, in view of the circumstances of each case, order the removal of all consequences stemming from such decisions and/or actions.
The decision of the Court accepting a citizen’s complaint shall constitute a legal basis for requesting compensation, or the removal of other adverse consequences, from a competent body, in accordance with the law.” 
III.  REPORTS OF THE COUNCIL OF EUROPE
17.  In a Council of Europe report on the State Union of Serbia and Montenegro of 30 April 2004, it was stated that the Court of Serbia and Montenegro had still not been established and that the setting-up of such a court had not been considered a priority by the State Union authorities since accession to the Convention (Serbia and Montenegro: Compliance with obligations and commitments and implementation of the post-accession co-operation programme, document presented by the Secretary General of the Council of Europe, fourth report, February - April 2004, § 27).
18.  In a subsequent report of 13 July 2005, the Council of Europe found that the Court of Serbia and Montenegro had at last started operating in January 2005. The court’s financing, however, had not been fully secured. Lastly, 200 individual human rights complaints had been registered as cases, but no decisions had yet been rendered (Serbia and Montenegro: Compliance with obligations and commitments and implementation of the post-accession co-operation programme, document presented by the Secretary General, eighth report, March 2005 - June 2005, §§ 14 and 44).
IV.  RESERVATION UNDER ARTICLE 13 OF THE CONVENTION
19.  In a reservation contained in its instrument of ratification of the Convention and its Protocols, deposited with the Council of Europe on 3 March 2004, the Government of the State Union of Serbia and Montenegro stated that “the provisions of Article 13 shall not apply in relation to the legal remedies within the jurisdiction of the Court of Serbia and Montenegro, until the said Court becomes operational in accordance with Articles 46 to 50 of the Constitutional Charter of the State Union of Serbia and Montenegro (Službeni list Srbije i Crne Gore, no. 1/03)”.
20
V.  LETTER FROM THE COURT OF SERBIA AND MONTENEGRO DATED 16 JANUARY 2006
21.  In a letter of 16 January 2006 the Court of Serbia and Montenegro clarified that it was yet to rule in respect of a single “citizen’s appeal”. It further pointed out that the reason for this was the proposed amendment to the relevant legislation regulating the court’s work which, at the time, was still pending (Statement No. 20/60, provided in the context of a separate application pending before this Court; application no. 2361/05).
VI. THE SUCCESSION OF SERBIA
22.  The State Union of Serbia and Montenegro ratified the Convention on 3 March 2004.
23.  Following a referendum, on 3 June 2006, Montenegro declared its independence from the State Union of Serbia and Montenegro, whereupon that entity ceased to exist together with all of its public bodies including the Court of Serbia and Montenegro.
24.  On 5 June 2006 the President of Serbia informed the Secretary General of the Council of Europe that Serbia was the sole successor to the former State Union of Serbia and Montenegro
25.  In its decision of 14 June 2006 the Committee of Ministers of the Council of Europe noted inter alia: (i) that “Serbia ... [had continued] ...  membership of [the State Union of] Serbia and Montenegro in the Council of Europe with effect from 3 June 2006”, and (ii) that it had remained a party to a number of Council of Europe conventions signed and ratified by the former State Union of Serbia and Montenegro, including the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
26.  In his application lodged on 20 May 2004, the applicant, relying on Article 6 § 2 of the Convention, complained that in the course of reviewing his detention on remand, on 2 April 2004, the Novi Sad District Court had declared him guilty before his guilt had been proved according to law and, further, that on 22 April 2004 the Supreme Court of Serbia had failed to rectify this “error” on appeal. Article 6 § 2 reads as follows:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
A. Admissibility (exhaustion of domestic remedies)
1. Arguments of the parties
27.  The Government submitted that the applicant had not exhausted all available and effective domestic remedies. In particular, he had failed to lodge a civil claim under sections 199 and 200 of the Obligations Act, or a “citizen’s complaint” (appeal) with the Court of Serbia and Montenegro (see paragraphs 15 and 16 above). Further, since Article 19 of the Charter on Human and Minority Rights and Civic Freedoms (see paragraph 12 above) enshrined the presumption of innocence, the present case clearly fell within that court’s jurisdiction ratione materiae. Lastly, the Government submitted that the Court of Serbia and Montenegro Act was being reviewed and that its jurisdiction might, in due course, be amended so that citizen’s complaints could be considered by the plenary court instead of chambers and, further, that rulings it adopted under such a procedure would formally be “decisions” rather than “judgments”.
28.  The applicant stated that a citizen’s complaint alleging an individual human rights violation, as referred to by the Government, was a remedy which was neither available in his case nor effective in general.  The applicant pointed out that he had lodged his application with the Court on 20 May 2004 but that the respondent Government had since conceded that the Court of Serbia and Montenegro was not in operation before 7 July 2004.  Further, even though this court had yet to issue a single judgment in respect of a citizen’s complaint, the Government had already started discussing amendments to the relevant legislation, thereby implicitly acknowledging its ineffectiveness as it stood.  Lastly, the applicant maintained that, given the relevant domestic law, it was unclear whether a citizen’s complaint could be lodged once all other legal remedies had been exhausted or only where no such remedies existed in the first place. In any event, there was no case-law to provide any guidance in this respect. 
2. Relevant principles
29.  The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see  no. 24760/94, § 85, ECHR 1999-VIII).
30.  Further, the existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, mutatis mutandis, Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, p. 30, § 54).
31.  Finally, where there are several effective remedies available, it is for the applicant to select which remedy to pursue in order to comply with the requirements of Article 35 § 1 of the Convention (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 12, § 23).
3. Application of these principles to the present case
32.  The Court notes that the Government were unable to cite any domestic cases in which a claim based on sections 199 and 200 of the Obligations Act had been successful in a case such as the applicant’s. However, even assuming that this remedy could have provided the applicant with redress, the Court considers that, having exhausted the effective remedies in the context of his detention, the applicant could not in addition have reasonably been expected to embark upon yet another avenue of “potential redress”.
33.  The lodging of such a civil claim, in the specific circumstances of the present case, was thus not necessary to comply with Article 35 § 1 of the Convention.
34.  As regards the lodging of a “citizen’s complaint” with the Court of Serbia and Montenegro, the court notes that on 15 July 2005 the respondent State withdrew the reservation contained in its instrument of ratification of the Convention. By doing so, in the Court’s view, the Government implicitly accepted that, prior to that date, the said court could not have been considered effective or even available (see paragraphs 19-20 above).
35.  Further, on 16 January 2006 the Court of Serbia and Montenegro itself acknowledged that it had yet to rule on a single “citizen’s complaint” alleging an individual human rights violation. Moreover, it was apparently awaiting the adoption of amendments to the Court of Serbia and Montenegro Act, at some point in the unforeseeable future (see paragraph 21 above).
36.  Lastly, on 3 June 2006 Montenegro declared its independence from the State Union of Serbia and Montenegro, whereupon the latter entity ceased to exist, as did all of its bodies including the Court of Serbia and Montenegro (see paragraphs 22-25 above).
37.  The Court therefore considers that the applicant was not obliged to exhaust a remedy which was unavailable at the material time and had remained ineffective until the very break-up of the State Union of Serbia and Montenegro.
4. Conclusion
38.  The Court concludes that the complaint cannot be declared inadmissible for non-exhaustion of domestic remedies in accordance with Article 35 § 1 of the Convention. Accordingly the Government’s objection must be dismissed.
39.  The Court also considers that the complaint raises questions of law which are sufficiently serious for its determination to depend on an examination of the merits, no other ground for declaring it inadmissible having been established. The Court therefore declares the complaint admissible.
B. Merits
1.  Arguments of the parties
40.  The applicant submitted in particular that, in the course of reviewing his detention on remand, the Novi Sad District Court had, on 2 April 2004, declared him guilty before his guilt had been proved according to law; that it did so by stating that he had “committed the criminal offences which are the subject of this prosecution”; and that on 22 April 2004 the Supreme Court of Serbia had failed to rectify this “error” on appeal.
41.  The Government submitted that the impugned wording used by the Novi Sad District Court was an obvious mistake, or in other words “an imprecise formulation”, and that it should instead have said that there was “a reasonable suspicion” that the applicant had committed the crimes with which he was charged.
42.  The applicant maintained that the District Court’s reasoning could not be dismissed as a mere mistake. He submitted that there was a fundamental difference between a statement that someone had committed a crime and an assertion that he was simply suspected of having done so. In any event, even though the decision at issue had been appealed against before the Supreme Court, after the District Court itself, neither court had done anything to rectify the “error”. On the contrary, the Supreme Court had dismissed the appeal, notwithstanding the explicit complaints therein concerning a breach of the presumption of innocence.
43.  The Government recalled that on 27 May 2004 the Novi Sad District Court had found the applicant guilty of incitement to murder and sentenced him to eight years’ imprisonment, that conviction having subsequently been upheld by the Supreme Court on appeal. They concluded that, in such circumstances, there had been no violation of Article 6 § 2 of the Convention and, to that effect, cited the judgments in Phillips v. the United Kingdom (no. 41087/98, ECHR 2001‑VII) and Engel and Others v. the Netherlands (judgment of 8 June 1976, Series A no. 22).
44.  The applicant emphasised that a subsequent conviction could not vacate a person’s initial right to the presumption of innocence.
2. Relevant principles
45.  The Court reiterates that the presumption of innocence under Article 6 § 2 will be violated if a judicial decision or, indeed, a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before his guilt has been proved according to law. It suffices, in the absence of a formal finding, that there is some reasoning suggesting that the court or the official in question regards the accused as guilty, while a premature expression of such an opinion by the tribunal itself will inevitably run foul of the said presumption (see, among other authorities, , judgment of 27 February 1980, Series A no. 35, p. 30, § 56; , judgment of 25 March 1983, Series A no. 62, §§ 27, 30 and 37; , judgment of 10 February 1995, Series A no. 308, p. 16, §§ 35-36; and Karakaş and Yeşilırmak v. Turkey, no. 43925/985, § 49, 28 June 2005).
46.  Article 6 § 2 governs criminal proceedings in their entirety, “irrespective of the outcome of the prosecution” (see , cited above, § 30). However, once an accused has been found guilty, in principle, it ceases to apply in respect of any allegations made during the subsequent sentencing procedure (see Phillips and Engel and Others, both cited above).
3. Application of these principles to the present case
47.  In view of the facts of the case, as well as the above-cited case-law, the Court finds that the Novi Sad District Court, in its decision dated 2 April 2004, did pronounce the applicant’s guilt before it was proved according to law and that, moreover, on 22 April 2004 the Supreme Court of Serbia failed to rectify this “error” on appeal.
48.  As regards the Government’s suggestion that the impugned wording of the District Court was an obvious mistake, namely “an imprecise formulation”, the Court agrees with the applicant that there is a fundamental distinction to be made between a statement that someone is merely suspected of having committed a crime and a clear judicial declaration, in the absence of a final conviction, that the individual has committed the crime in question.
49.  The fact that the applicant was ultimately found guilty and sentenced to eight years’ imprisonment cannot vacate the applicant’s initial right to be presumed innocent until proven guilty according to law. As noted repeatedly in this Court’s case-law, Article 6 § 2 governs criminal proceedings in their entirety “irrespective of the outcome of the prosecution” (see paragraph 46 above).
50.  Lastly, the Court considers the present case, where the impugned statement was made in the context of detention, to be clearly distinguishable from those of Phillips and Engel to which the Government referred (see paragraph 46 above).
51.  There has accordingly been a violation of Article 6 § 2 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
52.  Following the lodging of the application on 20 May 2004, the applicant complained, for the first time, in his submissions of 28 October 2005, that one of the judges who had found him guilty in the District Court on 2 April 2004 was also a member of that court’s trial chamber which had convicted him on 27 May 2004. The applicant maintained that the breach of his right to be presumed innocent was thus aggravated and the overall fairness of the criminal proceedings against him undermined.
53.  The Court assumed, in favour of the applicant, that these complaints could give rise to a separate issue under Article 6 § 1. However, since the applicant’s lawyer received the decision of the Supreme Court of Serbia on 7 March 2005 (see paragraph 11 above), the complaints at issue are out of time, within the meaning of Article 35 § 1 of the Convention, and must therefore be rejected in accordance with Article 35 §§ 1 and 4.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
54.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
55.  The applicant claimed 50,000 euros (EUR) for the non-pecuniary damage sustained as a result of the violation of his right to a fair trial, as well as of his right to be presumed innocent until proved guilty, as guaranteed by Article 6 §§ 1 and 2 respectively.
56.  The Government deemed that to be “manifestly unfounded” and declined to provide any additional comments.
57.  In the circumstances of the case, the Court considers that the finding of a violation of Article 6 § 2 of the Convention alone constitutes adequate just satisfaction in respect of the compensation claimed under that head (see, mutatis mutandis, Lavents v. Latvia, no. 58442/00, 28 November 2002).
B.  Costs
58.  The applicant also claimed a total of EUR 662 for the costs of his legal representation before this Court.
59.  The Government deemed that amount also to be “manifestly unfounded” and declined to provide any additional comments.
60.  The applicant provided the Court with an itemised and precise calculation of these costs, fully in accordance with the “Lawyer’s Remuneration Tariff” (“Tarifa o nagradama i naknadama troškova za rad advokata”), as amended in 2004 and published in OG SCG no. 58/04.
61.  The Court therefore considers that these costs have been actually and necessarily incurred, and are reasonable as to quantum. Consequently, it awards the full claim of EUR 662.
C.  Default interest
62.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank plus three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint under Article 6 § 2 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 2 of the Convention;

3. Holds that the finding of a violation in itself constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 662 (six hundred and sixty-two euros) for costs, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 19 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

	S. J.-P. Costa 
	Registrar	President