6.  The applicants were born in 1985, 1988 and 1985, respectively. They live in Serbia.
7.  On 26 and 27 March 2008 a brandy still, a kettle, two pieces of ham, a piece of bacon, a wheel and 10 litres of motor oil were stolen from the home of L.M. near Subotica. On 27 March 2008 L.M. reported that crime to the police. During the night of 27 to 28 March 2008 L.M. was brutally beaten up. The following items were stolen from his home that night: a combine-harvester radiator, a portable water hose, a tamburitza (a string instrument popular in Southern Europe), a Cardan joint, 60 euros (EUR) and a small amount of Serbian dinars (RSD).
8.  On 28 March 2008 at about 1 a.m., following a tip-off from L.F., a patrol from Palić police station found an abandoned car about 5 km from L.M.’s home. Not far from the car, they found two pieces of ham, a piece of bacon, a combine-harvester radiator, a portable water hose and a tamburitza. They took those items to Palić police station. L.F. told the police that his neighbours, J.M. and Š.K., had seen four or five Roma men leaving the car. No further steps were taken at that stage since they were not aware that those items had been stolen from L.M. the day before.
9.  On 28 March 2008 at about 2 p.m. the police found L.M. at his home. He was half-conscious. An investigating judge arrived at about 3 p.m. A police detective, at the request of the investigating judge, collected DNA evidence from a water jug on the kitchen table. Soon thereafter, he collected DNA evidence from the car mentioned above. He then went to Palić police station to photograph the items found near that car the previous night.
10.  On 31 March 2008 the first applicant made a statement to the police. He stated that on the night of 27 to 28 March 2008 the second and third applicants and R.K. had beaten up L.M. and stolen from him a combine-harvester radiator, a portable water hose, a tamburitza and EUR 60. He also stated that he had stayed in the car because he had refused to participate in the robbery. He added that the car had broken down shortly after that and that they had been obliged to leave it and continue on foot.
11.  On the same day, the police arrested R.K. In the presence of his counsel, V. Juhas Đurić, he denied any involvement in that robbery.
12.  On 2 April 2008 R.K was taken to the investigating judge. In the presence of his counsel, he again denied any involvement in the crime in question.
13.  On 3 April 2008 the public prosecutor requested that an investigation be opened into the robbery of L.M. against R.K., and against the second and third applicants, whose whereabouts were unknown at that time.
14.  On 4 April 2008 R.K. was taken to the investigating judge again. In the presence of his counsel, he reiterated that he had not taken part in the robbery. This time, however, he incriminated the applicants. He stated that the three applicants in the present case had told him on 29 March 2008 that they had robbed L.M. They allegedly told him also that they had been obliged to abandon their car and some stolen items not far from L.M.’s home because of an accident. His counsel, V. Juhas Đurić, then withdrew from legally representing him owing to a conflict of interest (he intended to defend the second and third applicants if and when they were arrested).
15.  Later that day, the investigating judge opened an investigation into the robbery of L.M. against R.K and against the second and third applicants.
16.  On 7 April 2008 the third applicant was arrested. The next day he was taken to the investigating judge. In the presence of his counsel, he denied any involvement and added that R.K. had lied in his statement of 4 April 2008.
17.  On 18 April 2008 a number of witnesses, including the first applicant, were questioned by the investigating judge. The first applicant retracted his statement of 31 March 2008, maintaining that it had been extracted under threats of violence from police officers. He further stated that R.K. had lied in his statement of 4 April 2008.
18.  On 22 April 2008 the public prosecutor requested that the investigation into the robbery of L.M. be extended so as to include also the first applicant.
19.  On 12 May 2008 the second applicant was arrested. On 20 May 2008 he was taken to the investigating judge. In the presence of his counsel, he denied the charges. Since he was not fluent in Serbian, he made his statement in Hungarian.
20.  On 20 May 2008 L.M. gave evidence to the investigating judge. He said, inter alia, that on 27 March 2008 he had seen a group of Roma men in front of his home running away with a wheel he owned; one of them had had black hair with blonde highlights, had been short and around 30 years old (it would appear from a subsequent statement of L.M. that this was in fact R.K. – see paragraph 27 below).
21.  On 26 May 2008 R.K. gave evidence to the investigating judge again. He retracted his statement of 4 April 2008, claiming that he had lied.
22.  On 11 June 2008 the investigating judge extended the investigation into the robbery of L.M. so as to also include the first applicant.
23.  On 8 July 2008 experts established that the DNA evidence collected from the water jug found in L.M.’s kitchen matched the DNA profile of L.M. and that the DNA evidence collected from the car found in the vicinity of L.M.’s home matched the DNA profile of the third applicant.
24.  On 10 July 2008 the public prosecutor issued an indictment against the applicants and R.K. for robbery allegedly committed on the night of 27 to 28 March 2008 (count 1) and for burglary allegedly committed on 26 and 27 March 2008 (count 2).
25.  On 5 September 2008 R.K. was transferred to the Special Prison Hospital in Belgrade. On 15 October 2008 he was diagnosed with advanced stomach cancer. One week later he was operated on and put on morphine. In the meantime, the start of the trial had had to be adjourned.
26.  On 28 October 2008, in order to prevent further delays in the case against the other accused, the public prosecutor requested that R.K.’s case be severed and that he be tried separately. She amended the indictment accordingly.
27.  The trial against the applicants started on 17 November 2008. They pleaded not guilty to both charges. The trial court then heard the victim, L.M., who said that on the night of 27 to 28 March 2008 four Roma men had attacked him at his home. He could not remember their faces. Having been shown a photo of R.K., L.M. stated that this was most likely the man with blonde highlights who had stolen his wheel on 27 March 2008 (see paragraph 20 above). He added that the tamburitza, the combine-harvester radiator and the portable water hose, which had been found by the police on 28 March 2008 at about 1 a.m., had belonged to him.
28.  On 21 November 2008 the trial court held that R.K. was not able to effectively participate in the criminal proceedings due to his health. It therefore ordered his immediate release.
29.  On 2 December 2008 the first applicant applied to the trial court to present evidence as soon as possible because he had some important information concerning it. However, at the next hearing, held on 23 January 2009, he invoked his right to remain silent.
30.  On 23 January 2009 the trial court heard evidence from seven witnesses.
31.  D.R., the police detective in charge of this case, said that he had collected DNA evidence from a water jug on the kitchen table in L.M’s home and from an abandoned car found not far from there. He had tried to take also fingerprints from the crime scene, but this had been impossible.
32.  U.Đ. confirmed his earlier statement according to which in March 2008 he had heard two young men on a local bus plotting to steal a violin from the home of a musician that same night. They had spoken Serbian without an accent. One man had got off at Aurometal and the other on Dubrovačka Street in Palić. The witness decided to follow the latter until an abandoned house in Marka Oreškovića Street in Palić, which had been occupied by Roma people. He later went to the police and reported the incident. The witness stated at the hearing that he was 50-60% certain that the second applicant had been the one who had got off the bus at Aurometal (the witness had been able to observe him from the bus for about thirty seconds); the third applicant could have been the other one, but the witness was not sure because he had seen him only from behind.
33.  M.P., a police officer, stated that on 14 March 2008, following the tip-off from U.Đ., he had gone to the house in Marka Oreškovića Street and found the applicants, R.K. and some other Roma people there. On 28 March 2008 at about 1 p.m. he had decided to visit L.M. to inform him that some of the items stolen from him the day before had actually been found. L.M. had been injured, but had managed to tell the witness that three or four Roma men had attacked him during the night and had stolen from him a tamburitza, among other things. The witness had instantly remembered the incident of 14 March 2008 concerning a plot to steal a musical instrument. He had then gone to check the car found not far from there the previous night. He had established that the car had belonged to either the second or third applicant. Lastly, the witness added that all three accused had been known to the police.
34.  O.S., one of the experts who examined the DNA evidence collected from L.M.’s home and from the car found in the vicinity of L.M.’s home, explained his report of 8 July 2008 according to which the material matched the DNA profiles of L.M. and the third applicant (see paragraph 23 above).
35.  P.E. stated that he had helped Officer M.P. to find L.M.’s home the day after L.M. had been beaten up and robbed.
36.  J.M. and Š.K. confirmed their earlier statements according to which they had seen four or five Roma men leaving a car beside the road during the night of 27 to 28 March 2008. J.M. and his neighbour, L.F., had then found two pieces of ham, a piece of bacon, a tamburitza, a combine-harvester radiator and a water hose about 50 m from the car. They had called the police.
37.  On 23 January 2009 the public prosecutor applied to the court to have the statements that R.K. had made to the investigating judge read out at the trial. The defence objected, arguing that R.K. could only be heard as a witness as his case had been severed. The trial court dismissed the application. On 26 January 2009 the defence applied to have two social workers give evidence so as to confirm that the second applicant did not speak Serbian without an accent (unlike the person whom U.Đ. had heard plotting to steal a violin (see paragraph 32 above)). The trial court also dismissed that application.
38.  On 19 February 2009 R.K. died.
39.  On 30 March 2009 the following additional documents were read out at the trial: the criminal file no. 119/08 concerning the severed case of R.K.; judicial records according to which the first applicant had three prior convictions, the second applicant had no prior convictions, the third applicant had two prior convictions, and, lastly, R.K. had nine prior convictions; and a police report of 14 March 2008 (see, in this regard, the witness statements of U.Đ. and M.P. in paragraphs 32 and 33 above) stating that the persons seen by U.Đ. earlier that day had been probably the first and the third applicants (rather than the second and the third applicants, as stated by U.Đ. on 23 January 2009). The trial court declared inadmissible the statements of the first applicant made before the opening of an investigation against him. In his closing argument, defence counsel argued that the statement of R.K. of 4 April 2008 was not reliable as it had not been made under oath and had been retracted on 26 May 2008.
40.  On the same day, the trial court rendered a judgment. On the basis of the statement of R.K. made on 4 April 2008 and the other evidence set out above, it convicted the applicants of burglary and robbery. The first and third applicants were sentenced to eight and a half years’ imprisonment. In view of the fact that he had no prior convictions, the second applicant was sentenced to five and a half years’ imprisonment.
41.  In their appeal, the applicants argued, inter alia, that the statement of R.K. of 4 April 2008 ought not to have been admitted because they had not been able to test that evidence by means of cross-examination.
42.  On 9 March 2010 the Novi Sad Court of Appeal (Apelacioni sud) upheld the judgment of 30 March 2009. It acknowledged that the statement of R.K. made on 4 April 2008 had been the sole evidence against the first applicant and that the only corroborative evidence against the second and third applicants had been the statement of U.Đ. made at the trial on 23 January 2009 and the DNA evidence belonging to the third applicant found in a car abandoned in the vicinity of the crime scene. The court held that its admission was still lawful. It relied, in this regard, on Article 337 § 1 of the Code of Criminal Procedure as well as the fact that R.K. had made the statement in question in the presence of his counsel, V. Juhas Đurić, who had shortly thereafter become counsel for the applicants.
43.  In their constitutional appeal, the applicants invoked, inter alia, the right to a fair trial. In this connection, they submitted that the statement of R.K. of 4 April 2008 ought not to have been admitted as they had not been able to test that evidence by means of a cross-examination. They added that it was irrelevant that V. Juhas Đurić, their then counsel, had been present when R.K. had made the impugned statement because he had become their counsel only after that date. In their opinion, it had been crucial that they had not been able to examine or have examined R.K. either on 4 April 2008 or later. They relied in this connection on Lucà v. Italy (no. 33354/96, ECHR 2001‑II).
44.  On 29 September 2011 the Constitutional Court rejected the case. It relied, like the second-instance court, on the relevant domestic provision in accordance with which statements made by co-accused to an investigating judge could be admitted as evidence if they had died in the meantime. It concluded that the applicants’ complaint about the fairness of their trial was, in substance, of a fourth-instance nature and therefore inadmissible.
45.  The applicants have served their prison sentences.