FOURTH SECTION
CASE OF RADONJIĆ AND ROMIĆ v. SERBIA
(Application no. 43674/16)
 
 
JUDGMENT
Art 34 • Victim • Express acknowledgment by the Constitutional Court of Art 5 § 3 breach for second part of applicants’ pre-trial detention not in itself sufficient redress in absence of compensation award • No clear and established avenue in domestic law for claiming adequate compensation
Art 5 § 3 • Reasonableness and length of pre-trial detention • Failure of competent courts, as per Constitutional Court’s findings, to give relevant and sufficient reasons justifying second part of pre-trial detention for over two years resulting in overall breach
Art 5 § 4 • Speediness of review • Constitutional Court’s review of lawfulness of detention lasting more than two years

 
STRASBOURG
4 April 2023
FINAL
 
04/07/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Radonjić and Romić v. Serbia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Faris Vehabović,
 Branko Lubarda,
 Armen Harutyunyan,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins, judges,
and Andrea Tamietti, Section Registrar,
Having regard to:
the application (no. 43674/16) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Serbian nationals, Mr Milan Radonjić and Mr Ratko Romić (“the applicants”), on 28 June 2016;
the decision to give notice to the Serbian Government (“the Government”) of the complaints concerning the length of the applicants’ detention and the length of proceedings before the Constitutional Court, by which they sought to challenge the lawfulness of their detention;
the parties’ observations;
Having deliberated in private on 14 March 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. In 1999 the applicants were Serbian secret police officers. On 14 January 2014 they were arrested on suspicion of having committed, together with two other individuals, the murder of Mr Slavko Ćuruvija, a Serbian journalist and newspaper publisher, on 11 April 1999. His murder provoked international outrage and wide condemnation. The criminal proceedings against the applicants are still pending. They were detained on remand from 14 January 2014 until 6 July 2017, when they were placed under house arrest. Under Article 5 §§ 3 and 4 of the Convention, the applicants complained about the length of their detention on remand and about the length of the proceedings before the Constitutional Court, by which they had challenged the lawfulness of their deprivation of liberty. THE FACTS
2. The applicants were born in 1959 and 1963, respectively, and live in Belgrade. They were represented by Ms Z. Dobričanin Nikodinović and Mr R. Kojić, lawyers practising in Belgrade. 3. The Government were represented by their Agent, Ms Z. Jadrijević Mladar. 4. The facts of the case may be summarised as follows. THE MURDER OF MR SLAVKO ĆURUVIJA
5. Mr Slavko Ćuruvija, an influential independent newspaper owner, was shot in the back on 11 April 1999 outside his home in the centre of Belgrade. He was well known for his criticism of Slobodan Milošević’s policies. Just days before his murder, the State television broadcasted allegations that Mr Ćuruvija supported NATO’s attack on the then Federal Republic of Yugoslavia. 6. Mr Slobodan Milošević lost power following presidential elections at the level of the Federal Republic of Yugoslavia in 2000 and died in 2006 in The Hague while on trial before the International Criminal Tribunal for the Former Yugoslavia (ICTY). 7. In January 2013 the Serbian Government established a commission for the investigation of murders of journalists (Komisija za razmatranje činjenica do kojih se došlo u istragama koje su vođene povodom ubistava novinara u Srbiji). The commission was headed by Mr Veran Matić, a veteran journalist, and made up of representatives from the journalism community, the Intelligence Agency and the police. In December 2013 a public awareness campaign was launched by the commission in cooperation with the Office of the OSCE Representative on Freedom of the Media. The aim of the campaign (named “Chronicles of Threats”) was to show to the public how journalists felt when threatened. For that reason, one of many authentic threats documented against journalists was selected and made public by inserting an anonymous letter of threat into 70,000 copies of the most popular Serbian newspapers. The fake threat quickly spread amongst the population. When the stunt was revealed on news channels, it opened up a large debate. As a result, forgotten cases of murdered journalists, such as Slavko Ćuruvija’s case, attracted much public and media attention. THE APPLICANTS’ ARREST AND DETENTION ON REMAND
8. On 14 January 2014 the applicants were arrested on suspicion of having committed, together with two other suspects, the murder of Mr Slavko Ćuruvija. 9. On 15 January 2014 a pre-trial judge of the Special Department of the High Court in Belgrade for Organised Crime (“the High Court in Belgrade”) heard the applicants and established, relying on intercepted communications, witness statements and other evidence obtained during the investigation, that there was a reasonable suspicion that they had committed, together with two other suspects, the murder of Mr Slavko Ćuruvija. It ordered their detention pending trial for an initial period of thirty days (starting from the date of their arrest on 14 January 2014) relying on the risk of absconding, the risk of influencing witnesses and the preservation of public order. In that regard, the judge acknowledged the applicants’ residence and family ties in Serbia. However, in view of the facts that they were former intelligence officers who had been trained how to operate and to cross borders under a false identity and that one of the suspects was at large, the judge held that the risk of the applicants’ absconding was nonetheless high. Since a number of former colleagues of the applicants had to be heard as witnesses, the judge held that the risk of influencing the witnesses was also high. Lastly, since the murder of Mr Slavko Ćuruvija had attracted much public attention, including recently (see paragraph 7 above), the judge considered that the applicants had to be detained also for the preservation of public order. A chamber of the High Court in Belgrade upheld that decision on 21 January 2014. 10. On 12 February 2014 the pre-trial judge of the High Court in Belgrade extended the applicants’ detention on the same grounds as those mentioned in paragraph 9 above until 14 March 2014. A chamber of the High Court in Belgrade upheld that decision on 25 February 2014. 11. On 14 March 2014 the pre-trial judge of the High Court in Belgrade extended the applicants’ detention on the same grounds as those mentioned in paragraph 9 above until 13 April 2014. A chamber of the High Court in Belgrade upheld that decision on 21 March 2014. 12. On 10 April 2014 a chamber of the Special Department for Organised Crime of the Court of Appeal in Belgrade (“the Court of Appeal in Belgrade”) extended the applicants’ detention on the same grounds as those mentioned in paragraph 9 above until 13 June 2014. On 29 April 2014 an appeals chamber of the same court found, in view of the applicants’ demeanour and family ties in Serbia, that the risk of their absconding was low. At the same time, since three more former colleagues of the applicants had to be heard as witnesses, the chamber held that the risk of influencing the witnesses was still high. Lastly, since the murder of Mr Slavko Ćuruvija still attracted much public attention, the chamber considered that the applicants had to be detained also for the preservation of public order. 13. On 6 June 2014 the public prosecutor for organised crime charged the applicants and two other individuals with aggravated murder. 14. On the same day, the High Court in Belgrade extended the applicants’ detention for thirty days. Although the public prosecutor had taken statements from all the witnesses, the court held that the applicants could still hinder the conduct of the proceedings (notably, by colluding with their co-accused who was at large and concealing evidence). Since the murder of Mr Slavko Ćuruvija still attracted much public attention, the court held that the applicants had to be detained also for the preservation of public order. On 19 June 2014 the Court of Appeal in Belgrade, noting that the public prosecutor had taken statements from all the witnesses and charged the applicants, found that the risk that the applicants, if released, would hinder the conduct of the proceedings was low. However, given that the murder of Mr Slavko Ćuruvija still attracted much public attention, it considered that the applicants had to be detained for the preservation of public order. 15. On 4 July 2014 the High Court in Belgrade extended the applicants’ detention for thirty days relying on the protection of public order. On 17 July 2014 the Court of Appeal in Belgrade found that the High Court in Belgrade had failed to establish the persistence of reasons justifying the continued pre-trial detention. It held that the arguments against the applicants’ release were general and pointed out that pursuant to the case-law of the European Court of Human Rights the need to continue the deprivation of liberty could not be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Accordingly, it quashed the decision of 4 July 2014 and remitted the case to the High Court in Belgrade for reconsideration. 16. On 18 July 2014 the High Court in Belgrade extended the applicants’ detention for thirty days relying again on the preservation of public order. It held that there was a reasonable suspicion that the applicants had participated, together with two other persons, in the assassination of Mr Slavko Ćuruvija, who had been brutally shot in the back, during the day, in the centre of Belgrade because he had become a danger to the survival of the then political regime. According to the High Court, that murder had shocked, and continued to shock, Serbia and diminished its international standing. The fact that the applicants had been, at the time of the murder, high-ranking secret police officers was particularly disturbing for the public. For all those reasons, and the fact that the public often equated release pending trial with acquittal, the court considered that the applicants’ release would provoke very strong public reaction in Serbia and abroad, which would prejudice the administration of justice in this very particular case. On 31 July 2014 the Court of Appeal in Belgrade quashed that decision and remitted the case to the High Court in Belgrade for reconsideration because the argument that release pending trial could be equated with acquittal was ambiguous and not in accordance with the applicants’ right to the presumption of innocence. 17. On 1 August 2014 the High Court in Belgrade rendered a new order, extending the applicants’ detention for thirty days. Pursuant to the directions of the court of appeal, it omitted the impugned argument that the public often associated release pending trial with acquittal, but nonetheless considered that the applicants had to be detained for the preservation of public order relying on the other reasons stated in its decision of 18 July 2014 (see paragraph 16 above). On 12 August 2014 the Court of Appeal in Belgrade upheld that decision. 18. On 29 August, 26 September and 24 October 2014 the High Court in Belgrade extended the applicants’ detention, each time for thirty days, relying on the same grounds as in its decision of 1 August 2014 (see paragraph 17 above). On 11 September, 7 October and 6 November 2014, respectively, the Court of Appeal in Belgrade upheld those decisions. 19. On 20 November 2014 the High Court in Belgrade extended one more time the applicants’ detention for thirty days, relying on the same grounds as in its decision of 1 August 2014 (see paragraph 17 above). On 4 December 2014 the Court of Appeal in Belgrade quashed the decision of 20 November 2014 and remitted the case to the High Court in Belgrade for reconsideration. It considered that the High Court in Belgrade had failed to duly substantiate that public order remained threatened eleven months after the applicants’ arrest. 20. On 9 December 2014 the High Court in Belgrade extended once again the applicants’ detention for thirty days relying on the preservation of public order. It held that the fact that former secret police officers had been charged with the murder of Mr Slavko Ćuruvija in 2014 had provoked very strong public reaction in Serbia which justified the applicants’ detention. On 19 December 2014 the Court of Appeal in Belgrade quashed the decision of 9 December 2014 and remitted the case to the High Court in Belgrade for reconsideration. It acknowledged that the murder of Mr Slavko Ćuruvija had provoked very strong public reaction in Serbia. However, the political situation in Serbia had changed since 1999. The Court of Appeal in Belgrade emphasised that pursuant to the case-law of the European Court of Human Rights (notably, Letellier v. France, 26 June 1991, Series A no. 207, and Tomasi v. France, 27 August 1992, Series A no. 241‑A), this ground could be regarded as relevant and sufficient only if it was based on facts capable of showing that the accused’s release would actually disturb public order. 21. On 23 December 2014 the High Court in Belgrade extended again the applicants’ detention for thirty days relying on the protection of public order. It held that the murder of Mr Slavko Ćuruvija was a despicable crime, motivated by the preservation of the then political regime. It had shocked, and continued to shock, Serbia because the victim had been a journalist and the accused had been secret police officers entrusted with the protection of public order. For those reasons, the court considered that the applicants’ release would provoke very strong public reaction in Serbia and would prejudice the administration of justice in this very particular case. On 8 January 2015 the Court of Appeal in Belgrade quashed the decision of 23 December 2014 and remitted the case to the High Court in Belgrade for reconsideration. It considered that the High Court in Belgrade had failed to duly substantiate that the applicants’ detention continued to be necessary for the preservation of public order. 22. The High Court in Belgrade extended again the applicants’ detention, each time for thirty days, on 9 January, 6 February and 6 March 2015. It relied on the same grounds as in its decision of 23 December 2014 (see paragraph 21 above). On 21 January, 24 February and 23 March 2015, respectively, the Court of Appeal in Belgrade upheld those decisions. 23. In the meantime, the High Court in Belgrade confirmed the indictment on 20 February 2015. The indictment entered into force on 23 March 2015. The High Court in Belgrade then held eighty-three hearings and heard more than hundred witnesses. 24. On many occasions between 3 April 2015 and 12 June 2017, the High Court in Belgrade regularly extended the applicants’ detention, each time for sixty days, relying on the same grounds as in its decision of 23 December 2014 (see paragraph 21 above). All those decisions were upheld by the Court of Appeal in Belgrade either directly or after a remittal. 25. In addition, on 17 April and 10 September 2015 the applicants lodged applications for their release with the High Court in Belgrade. Their applications were rejected on 21 April and 14 September 2015, respectively. 26. On 6 July 2017 the High Court in Belgrade held that the applicants’ detention was no longer necessary and placed them under house arrest. The public prosecutor for organised crime appealed. On 2 August 2017 the Court of Appeal in Belgrade quashed that decision and remitted the case to the High Court in Belgrade for reconsideration. On 4 August 2017 the High Court in Belgrade decided again that the applicants’ detention was no longer necessary and that the applicants should remain under house arrest. On 17 August 2017 the Court of Appeal in Belgrade upheld that decision. THE APPLICANTS’ APPEALS TO THE CONSTITUTIONAL COURT
27. The applicants lodged an appeal with the Constitutional Court against the decision ordering their detention and against each decision extending their detention (twenty-seven appeals in total). The Constitutional Court rendered a number of decisions. Applying the criteria laid down in the case-law of the Court (notably, Letellier and Tomasi, cited above), in decision Už-2237/2015 of 22 June 2017 it held that the length of the applicants’ detention had been justified in the period from their arrest on 14 January 2014 (see paragraph 8 above) until 3 April 2015 (see paragraph 24 above). As to the subsequent period (from 3 April 2015 until 6 July 2017, when the applicants had been placed under house arrest – see paragraph 26 above), the Constitutional Court held that the competent courts had not given relevant and sufficient reasons to justify the applicants’ detention (see, for example, decision Už-3518/2015 adopted on 21 December 2017 and delivered on 10 January 2018; the relevant constitutional appeal was lodged on 28 May 2015). The Constitutional Court dismissed the applicants’ claims for non-pecuniary damages, considering that the mere finding of a breach constituted in itself sufficient just satisfaction. In that connection, in one of its decisions it noted that it was not excluded that the applicants would obtain damages under the Code of Criminal Procedure if all the conditions set in the relevant provisions of that Code were met (see paragraphs 39 and 40 below). THE APPLICANTS’ CONVICTION
28. On 5 April 2019 the applicants and two other persons (R.M. and M.K.) were found guilty of aggravated murder. The first applicant (Mr Milan Radonjić) and R.M. were sentenced to thirty years’ imprisonment, whereas the second applicant (Mr Ratko Romić) and M.K. were sentenced to twenty years’ imprisonment. On 15 July 2020 the Court of Appeal in Belgrade quashed that judgment and remitted the case to the High Court in Belgrade for a retrial. The High Court in Belgrade held twenty-one hearings. It rendered a judgment on 2 December 2021, finding the applicants, R.M. and M.K. guilty of aggravated murder and imposing the same sentences as in its judgment of 5 April 2019. Appeals have been lodged and were, at the date of the latest information available to the Court (30 August 2022), still pending. 29. On the same date, the applicants were still under house arrest. They did not appeal against any of the decisions extending their house arrest. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Civil Obligations Act 1978 (Zakon o obligacionim odnosima; Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85, 45/89 and 57/89, Official Gazette of the Federal Republic of Yugoslavia no. 31/93 and Official Gazette of the Republic of Serbia no. 18/20)
30. The Civil Obligations Act 1978 entered into force on 1 October 1978. 31. In accordance with section 200 of this Act, anyone who has suffered mental distress caused by, inter alia, damage to reputation, honour, a breach of liberty or personality rights (prava ličnosti) is entitled to fair compensation for non-pecuniary damage. Section 172 of this Act provides that a legal entity, which includes the State, is liable for any tort committed vis-à-vis a third party by its organs in the course of, or in connection with, the exercise of their functions (see, for example, Supreme Court judgments Rev. 6203/02 of 10 November 2002 and Rev. 1118/03 of 10 April 2003). Constitutional Court Act 2007 (Zakon o Ustavnom sudu; Official Gazette of the Republic of Serbia nos. 109/07, 99/11 and 103/15)
32. The Constitutional Court Act 2007 entered into force on 6 December 2007. 33. Pursuant to section 7 of this Act, decisions of the Constitutional Court are final and binding. 34. Section 89 of this Act provides that when the Constitutional Court finds that an individual act or action has violated human rights and freedoms set forth in the Constitution, it may quash that act, order the cessation of that action, or order the removal of all adverse consequences in any other manner (see, for example, decision Už-8018/2013 of 28 November 2013 in which the Constitutional Court held that the Court of Appeal in Belgrade had not given relevant and sufficient reasons to justify the detention of a person, and ordered that court to reconsider the case). Since 4 January 2012, when the amendments published in the Official Gazette of the Republic of Serbia no. 99/11 entered into force (see section 89 (3) of the Constitutional Court Act 2007), the Constitutional Court may also award compensation for pecuniary and non-pecuniary damage. Until that date, damages could not have been awarded by the Constitutional Court, but an appellant who had obtained a Constitutional Court decision in his or her favour was entitled to lodge a compensation claim with a commission for compensation and, if the commission had not ruled favourably in respect of the claim or had failed to issue any decision within thirty days, the appellant was entitled to lodge a civil claim for damages with the competent court (see former section 90 of the Constitutional Court Act 2007). Code of Criminal Procedure 2011 (Zakonik o krivičnom postupku; Official Gazette of the Republic of Serbia nos. 72/11, 101/11, 121/12, 32/13, 45/13, 55/14 and 35/19)
35. The Code of Criminal Procedure 2011 entered into force on 6 October 2011. Its application was postponed until 15 January 2012 in respect of war crimes and organised crime and until 1 October 2013 in respect of all other criminal offences. 36. Article 188 of the Code provides that the following measures may be applied against the defendant to secure his or her presence and the unhindered conduct of proceedings: summons; bench warrant; order to “stay away” from a person; ban to leave the place of residence; bail; house arrest; and detention. Pursuant to Article 189 of the Code, a stricter measure must not be applied if the same purpose may be achieved with a more lenient one. Furthermore, all the authorities involved in criminal proceedings must act with particular diligence if the defendant is in detention (see Article 210 of the Code). 37. In accordance with Article 211 of the Code, detention may be ordered, if there is a reasonable suspicion that the defendant has committed a criminal offence, on the following grounds: (a) the risk of absconding; (b) the risk that the defendant will conceal evidence, bring pressure on witnesses or otherwise hinder the conduct of proceedings; (c) the risk of reoffending; and/or (d) for the preservation of public order (when the offence with which the defendant is charged is punishable by a term of imprisonment of more than ten years, or a term of imprisonment of more than five years for an offence with elements of violence, and the way of commission or the gravity of consequences of the offence have disturbed the public to such an extent that this may threaten the unhindered and fair conduct of the proceedings). 38. Pursuant to Article 215 of the Code, “pre-indictment detention”, that is judicial detention until the defendant’s indictment by the public prosecutor, cannot last more than six months. Following the indictment of the defendant until the adoption of the judgement at first instance, detention is automatically reviewed every thirty days until the indictment is confirmed and subsequently every sixty days (see Article 216 of the Code). The detention order and each decision extending the defendant’s detention are subject to appeal; the appeal does not have a suspensive effect (see Articles 214 and 216 of the Code). The defendant is also entitled to submit a request for release at any moment (see Articles 214 § 2 and 216 § 2 of the Code). A decision rejecting such a request is not subject to appeal. 39. Article 584 § 1 of the Code reads as follows:
“A person shall be deemed to have been wrongfully deprived of liberty in the following cases:
1.  when deprived of liberty and no proceedings were instituted, the proceedings were discontinued, or the proceedings were concluded with a judgment of acquittal;
2.  when he or she served a prison sentence, and following a request for the reopening of proceedings or a request for the protection of legality he or she was sentenced to a term of imprisonment of a shorter duration, or was sentenced to a criminal sanction that did not include a deprivation of liberty, or was declared guilty but relieved from penalty;
3.  when deprived of liberty for a period longer than the duration of the actual criminal sanction eventually imposed;
4.  when deprived of liberty, or the deprivation of liberty lasted longer, due to an error or unlawful conduct of the authority conducting proceedings.”
40. Any claim for damages in respect of a wrongful deprivation of liberty must first be submitted to a commission within the Ministry of Justice (see Article 588 of the Code). If the commission does not accept the claim or does not decide within three months, the person may lodge a claim for pecuniary and/or non-pecuniary damages against the State under the Civil Obligations Act 1978 (see Article 589 of the Code). In accordance with Article 591 of the Code, the statute of limitations for claiming damages is three years from the final decision in the criminal case in question. Relevant practice of the Constitutional Court
41. In accordance with the well-established case-law of the Constitutional Court, as from 4 January 2012 (see paragraph 34 above) no court other than the Constitutional Court has jurisdiction to deal with claims for damages in respect of violations of human rights established by that court (see decisions Už-9428/2017 of 27 September 2017 and Už-6544/2016 of 6 December 2018). Relevant domestic legal LITERATURE
42. In an article entitled “State Liability for Damage relating to Wrongful Conviction and Wrongful Deprivation of Liberty” (Odgovornost države za štetu zbog neosnovane osude i neosnovanog lišenja slobode; published in the Bulletin of the Supreme Court of Cassation 3/2012, p. 215), Judge Jasminka Stanojević explained that the expression “deprivation of liberty lasted longer due to an error or unlawful conduct of the authority conducting proceedings”, used in Article 584 § 1 (4) of the Code of Criminal Procedure (see paragraph 39 above), applied to situations in which the deprivation of liberty had exceeded the time-limits set in the Code of Criminal Procedure. According to Judge Stanojević, Article 584 § 1 (4) was not intended to be used to obtain damages for a violation of the right to liberty and security, which included the right to trial within a reasonable time or to release pending trial, set forth in the Constitution. The Constitutional Court only had jurisdiction to award damages in such situations, on condition that it had found a breach of that right and that the appellant had claimed damages in his or her constitutional appeal. THE LAW
PRELIMINARY REMARKS
43.

Outcome for Article 5: violation