European Court of Human Rights

                                                                                                      27 July 2010

SECOND SECTION

Application no. 26088/06
by Zoran STANIMIROVIĆ
against Serbia
lodged on 22 May 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Zoran Stanimirović, is a Serbian national who was born in 1972. He is in Zabela Prison near Požarevac. He is represented before the Court by a German law firm, Dr. Gorev & Kollegen.

A.  The circumstances of the case

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

On 9 February 2001 Slavica P. and Slobodan P. were killed in the Smederevo area.

On 10 February 2001 at about 8 p.m. the applicant was arrested at his home in Grocka. He was taken to Smederevo Police Station and beaten up by criminal police officers (the applicant alleges that he was beaten with a baseball bat, punched repeatedly, electrocuted on his genitals and subjected to death threats and asphyxiation with a plastic bag). The applicant then confessed to having participated in the killing of Slavica P. and Slobodan P.

On 11 February 2001 the applicant was taken to Smederevo Prison.

On 13 February 2001 the applicant was taken to the investigating judge. He met there his counsel, who had meanwhile been appointed by the applicant's wife, but he was not given the possibility of talking with him in private. The applicant confirmed his earlier confession. He also complained to the judge that he had been beaten up by the police. The judge ordered a medical examination, but the allegations were not recorded in writing. Later on, the applicant was examined at Smederevo Hospital. According to the medical report, he had a broken rib and chest bruises.

On 14 February 2001 the applicant was taken again to the investigating judge. After having been returned to Smederevo Prison, he met his counsel for the first time in private. During that meeting, the applicant allegedly told his counsel that he had been coerced into making confession statements.

On 17 February 2001 the applicant was returned to Smederevo Police Station and beaten up again. After he had collapsed, he was taken to Smederevo Hospital. According to the medical report, he had head bruises and brain concussion. The investigating judge was informed of that incident.

On 19 February 2001 the applicant appeared before the investigating judge again.

When the applicant was taken to the investigating judge for the fourth time on 16 March 2001, he denied his participation in the killing of Slavica P. and Slobodan P.

Following a criminal complaint lodged by the applicant's counsel against unidentified criminal police officers, the public prosecutor obtained a report from Smederevo Police Station rejecting the applicant's allegations. The public prosecutor obtained also the medical reports of 13 and 17 February 2001. Although neither the applicant nor any witnesses were questioned, on 24 September 2001 the public prosecutor decided not to prosecute and informed the applicant's counsel of the possibility of starting a subsidiary prosecution within eight days. It would appear the counsel did not do so.

On 4 November 2002 the Smederevo District Court found the applicant and Saša P. guilty of murder and sentenced each of them to forty years' imprisonment. On 9 July 2003 the Supreme Court of Serbia quashed that judgment and remitted the case to the first-instance court for a retrial. It instructed the first-instance court to establish whether the applicant had been ill-treated by the police and whether any of his statements were therefore inadmissible.

At a hearing held on 13 May 2004, the applicant described in detail his ill-treatment and for the first time named the alleged perpetrators. The counsel for Saša P. then applied for the minutes of that hearing to be sent to the public prosecutor with a view to prosecuting the criminal police officers named by the applicant. The public prosecutor, who was present at the hearing, raised an objection. She emphasised that a criminal complaint in that connection had been dismissed on 24 September 2001 and that her office had no intention of dealing with the same case again. The counsel for Saša P. then applied for the public prosecutor to be excluded from the proceedings. On 17 May 2004 the Smederevo District Chief Public Prosecutor rejected that application, but confirmed that the decision of 24 September 2001 might be reconsidered in view of the new facts, notably the names of the alleged perpetrators.

On 27 December 2004 the Smederevo District Court found the applicant guilty of murder and Saša P. of incitement to murder and sentenced each of them to forty years' imprisonment. It held that the applicant had indeed been ill-treated at Smederevo Police Station. The statements which the applicant had made there on 10/11 and 17 February 2001 were therefore declared inadmissible. In contrast, it regarded the statements which he had made before the investigating judge on 13, 14 and 19 February 2001 as admissible. The court relied in that regard on an expert report prepared by a team of psychiatrists, stating that the applicant's fear must have receded by the date of his appearance before the investigating judge.

On 13 May 2005 the Supreme Court of Serbia upheld the first-instance judgment.

On 14 April 2006 the Supreme Court of Serbia, in another formation, upheld the second-instance judgment.

On 30 October 2006 the applicant lodged a criminal complaint with the public prosecutor against six criminal police officers concerning the events of 10/11 and 17 February 2001. Apparently, he has not received any reply.

B.  Relevant domestic law

The Criminal Code 2005 (published in Official Gazette of the Republic of Serbia no. 85/05 of 6 October 2005, amendments published in Official Gazette 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. The relevant Articles of the Code read as follows:

Article 136 (Extortion of Confession)

“(1) Whoever acting in an official capacity uses force or threat or other inadmissible means or inadmissible manner with the intent to extort a confession or another statement from an accused, a witness, an expert witness or other person, shall be punished with imprisonment of three months to five years.

(2) If extortion of confession or statement is aggravated by extreme violence or if extortion of statement results in particularly serious consequences for the accused in criminal proceedings, the offender shall be punished with imprisonment from two to ten years.”

Article 137 (Ill-treatment and Torture)

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

(2) Whoever causes anguish to another with the aim to obtain from him or another information or confession or to intimidate him or a third party or to exert pressure on such persons, or if done from motives based on any form of discrimination, shall be punished with imprisonment from six months to five years.

(3) If the offence specified in paragraphs 1 and 2 of this Article is committed by an official in discharge of duty, such person shall be punished for the offence in paragraph 1 by imprisonment from three months to three years, and for the offence specified in paragraph 2 of this Article by imprisonment of one to eight years.”

The Code of Criminal Procedure 2001 (published in Official Gazette of the Federal Republic of Yugoslavia no. 70/01 of 28 December 2001, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/02 of 19 December 2002 and Official Gazette of the Republic of Serbia nos. 58/04 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.

The Code of Criminal Procedure 1977, which was in force until 28 March 2002, contains similar provisions (see Articles 18 and 60 thereof).

COMPLAINTS

The applicant complains that he was tortured contrary to Article 3 of the Convention in the context of his police interrogation on 10/11 and 17 February 2001 and that there was no effective official investigation into his torture. Furthermore, he maintains that his statements made before the investigating judge on 13, 14 and 19 February 2001 were a result of torture by the police and complains under Article 6 § 1 of the Convention that his right to a fair trial was breached, notably by the admission and use of those statements. Lastly, he complains under Article 6 § 2 of the Convention about statements given by the investigating judge on 31 October 2001.

QUESTIONS TO THE PARTIES

1.  Is the applicant's complaint under the procedural aspect of Article 3 compatible with the provisions of the Convention, ratione temporis, given that his ill-treatment by the police dates back to 2001 (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)? In particular, did the fact that the alleged perpetrators of the ill-treatment were identified on 13 May 2004 and the fact that domestic court established on 27 December 2004 that the applicant had been ill-treated revive the State's positive obligation to conduct an effective investigation (see Brecknell v. the United Kingdom, no. 32457/04, 27 November 2007, and Çakir and Others v. Cyprus (dec.), no. 7864/06, 29 April 2010)?

2.  Having regard to the complaint under the procedural aspect of Article 3, 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 from ill-treatment (see, among many other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

4.  Having regard to the admission of his statements made before the investigating judge on 13, 14 and 19 February 2001 at his criminal trial, did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention (see, for example, Harutyunyan v. Armenia, no. 36549/03, ECHR 2007‑VIII)?

5.  The Government are requested to submit a copy of the entire file concerning the applicant's ill-treatment from the Office of the Smederevo District Public Prosecutor.