Communicated on 20 June 2017
THIRD SECTION
Application no. 7203/12
Atila DIMOVIĆ and Others
against Serbia
lodged on 11 November 2011
STATEMENT OF FACTS
A list of the applicants is set out in the appendix. They are represented before the Court by Mr V. Juhas Đurić, a lawyer practising in Subotica.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 26 and 27 March 2008 a brandy still, a kettle, two big pieces of ham, a big piece of bacon, a wheel and 10 litres of motor oil were stolen from the home of L.M. situated near Subotica. On 27 March 2008 L.M. reported that crime to the police. On the night of 27 to 28 March 2008 L.M. was brutally beaten up. The following items were stolen from his home on that night: a combine harvester radiator, a man-portable water sprayer, a tamburica (a string instrument popular in Southern Europe), a Cardan joint, 60 euros and a small amount of dinars.
On 28 March 2008 at about 1 a.m., following a tip-off from L.F., a police patrol from Palić Police Station found an abandoned car about 5 kilometres from the L.M.’s home. Not far from the car, they found two pieces of ham, a piece of bacon, a combine harvester radiator, a man-portable water sprayer and a tamburica. They took those items to Palić Police Station. L.F. told the police patrol 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.
On 28 March 2008 at about 2 p.m. the police found L.M. at his home. He was half-conscious. The investigating judge arrived at about 3 p.m. A police detective, at the request of the investigating judge, collected DNA material from a water jug on the kitchen table. Shortly thereafter, he collected DNA material from the car mentioned above. He then went to Palić Police Station to photograph the items found near that car the previous night.
On 31 March 2008 Atila Dimović made a statement to the police. He stated that on the night of 27 to 28 March 2008 Tihomir Hajnal, Marijano Dimović and Robert Kolompar had beaten up L.M. and stolen from him a combine harvester radiator, a man-portable water sprayer, a tamburica and 60 euros. 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 thereafter and that they had been obliged to leave it and continue on foot.
On the same day, the police arrested Robert Kolompar. In the presence of his counsel, V. Juhas Đurić, he denied any involvement in that robbery.
On 2 April 2008 Robert Kolompar was taken to the investigating judge. In the presence of his counsel, he again denied any involvement in the crime in question.
On 3 April 2008 the public prosecutor requested that an investigation be opened into the robbery of L.M. against Robert Kolompar as well as against Marijano Dimović and Tihomir Hajnal whose whereabouts were unknown at that time.
On 4 April 2008 Robert Kolompar was taken to the investigating judge again. In the presence of his counsel, he reiterated that he had not taken part in the robbery of L.M. This time, however, he incriminated Tihomir Hajnal, Marijano Dimović and Atila Dimović. 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 the L.M.’s home because of an accident. His counsel, V. Juhas Đurić, then cancelled the power of attorney relying on a conflict of interests (he intended to defend Marijano Dimović and Tihomir Hajnal if and when they are arrested).
On the same day, the investigating judge opened an investigation into the robbery of L.M. against Robert Kolompar, Marijano Dimović and Tihomir Hajnal.
On 7 April 2008 Tihomir Hajnal was arrested. The next day he was taken to the investigating judge. In the presence of his counsel, V. Juhas Đurić, he denied any involvement.
On 18 April 2008 a number of witnesses, including Atila Dimović, were heard by the investigating judge. Atila Dimović retracted his statement of 31 March 2008, maintaining that it had been extracted under threats of violence from police officers.
On 22 April 2008 the public prosecutor requested that the investigation into the robbery of L.M. be extended so as to include also Atila Dimović.
On 12 May 2008 Marijano Dimović was arrested. On 20 May 2008 he was taken to the investigating judge. In the presence of V. Juhas Đurić, his counsel, he denied the charges. Since he was not fluent in Serbian, he made his statement in Hungarian.
On 26 May 2008 Robert Kolompar was heard by the investigating judge again. He retracted his statement of 4 April 2008, claiming that he had lied.
On 11 June 2008 the investigating judge extended the investigation into the robbery of L.M. so as to include also Atila Dimović.
On 8 July 2008 experts established that the DNA material collected from the water jug found in the L.M.’s kitchen matched the DNA profile of L.M. and that the DNA material collected from the car found in the vicinity of the L.M.’s home matched the DNA profile of Tihomir Hajnal.
On 10 July 2008 the public prosecutor issued an indictment against Atila Dimović, Robert Kolompar, Tihomir Hajnal and Marijano Dimović 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).
On 5 September 2008 Robert Kolompar was transferred to 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, all hearings before the trial court had to be adjourned.
On 28 October 2008, in order to prevent further delays in the case against the other accused, the public prosecutor requested that Robert Kolompar’s case be severed and that he be tried separately. She amended the indictment accordingly.
The trial against Atila Dimović, Marijano Dimović and Tihomir Hajnal (the applicants in the present case) finally started on 17 November 2008. All three of them pleaded not guilty to all 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. He stated that the tamburica, the man-portable water sprayer and the combine harvester radiator, which had been found by the police on 28 March 2008 at about 1 a.m., belonged to him.
On 21 November 2008 the trial court held that Robert Kolompar was not able to effectively participate in criminal proceedings due to his health. It therefore ordered his immediate release.
On 2 December 2008 Atila Dimović requested the trial court to hear him as soon as possible because he had some important information concerning the case. However, at the next hearing, held on 23 January 2009, he invoked his right to remain silent.
On 23 January 2009 the trial court heard seven witnesses.
D.R., the police detective in charge of this case, said that he had collected DNA material from a water jug on the kitchen table in L.M’s home and from an abandoned car found not far from the L.M.’s home. He had tried to take also fingerprints from the crime scene, but this had been impossible.
U.Đ. confirmed his earlier statement according to which in March 2008 he had heard two young men in a local bus plotting to steal a violin from the home of a musician the same night. They spoke Serbian without accent. One man got off at Aurometal and the other in 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 Marijano Dimović was the one who had got off the bus at Aurometal (the witness had been able to observe him from the bus for about 30 seconds); Tihomir Hajnal could be the other one, but the witness was not sure because he had seen him only from the back.
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 there Atila Dimović, Marijano Dimović, Tihomir Hajnal, Robert Kolompar and some other Roma people. On 28 March 2008 at about 1 p.m. he 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. was injured, but he managed to tell the witness that three or four Roma men had attacked him during the night and had stolen from him a tamburica, among other things. The witness instantly remembered the incident of 14 March 2008 concerning a plot to steal a musical instrument. He then went to check the car found not far from there the previous night. He established that the car belonged to either Marijano Dimović or Tihomir Hajnal. Lastly, the witness added that all three accused had been known to the police from before.
O.S., one of the experts who examined the DNA material collected from the L.M.’s home and from the car found in the vicinity of the L.M.’s home, explained his report of 8 July 2008 according to which the material matched the DNA profiles of L.M. and Tihomir Hajnal, respectively.
P.E. stated that he had helped the police officer M.P. to find L.M.’s home the day after L.M. had been beaten up and robbed.
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 in the night of 27 to 28 March 2008. J.M. and his neighbour, L.F., then found two pieces of ham, a piece of bacon, a tamburica, a combine harvester radiator and a man-portable water sprayer about 50 metres from the car. They called the police.
On 23 January 2009 the public prosecutor also moved that the statements of Robert Kolompar made to the investigating judge be read out at the trial. The defence objected, arguing that Robert Kolompar could only be heard as a witness as his case had been severed. The trial court rejected the motion. On 26 January 2009 the defence moved that two social workers be heard so as to confirm that Marijano Dimović did not speak Serbian without accent (unlike the person whom U.Đ. had heard plotting to steal a violin). The trial court rejected also that motion.
On 19 February 2009 Robert Kolompar died.
On 30 March 2009, despite an objection of the defence, the criminal file no. 119/08 concerning the case of Robert Kolompar was read out at the trial. It is not clear whether it included the statements of Robert Kolompar made on 4 April and 26 May 2008. The following documents were also read out at the trial: judicial records according to which Atila Dimović had three prior convictions, Marijano Dimović had no prior convictions, Tihomir Hajnal had two prior convictions and, finally, Robert Kolompar had nine prior convictions; a police report of 14 March 2008 (see, in this connection, the witness statements of U.Đ. and M.P. of 23 January 2009 above) stating that the persons seen by U.Đ. earlier that day were probably Atila Dimović and Tihomir Hajnal; and some other documents. The trial court declared inadmissible the statements of Atila Dimović made before the opening of an investigation against him. In his closing argument, defence counsel argued that the statement of Robert Kolompar of 4 April 2008 was not reliable as it had not been made under oath and, moreover, had been retracted on 26 May 2008.
On the same day, the trial court rendered a judgment. On the basis of the statement of Robert Kolompar made on 4 April 2008 and the other evidence set out above, it convicted the applicants of burglary and robbery. Tihomir Hajnal and Atila Dimović were sentenced to eight and a half years’ imprisonment. In view of the fact that he had no prior convictions, Marijano Dimović was sentenced to five and a half years’ imprisonment.
In their appeal, the applicants maintained, inter alia, that the statement of Robert Kolompar of 4 April 2008 ought not to be admitted because they had not been able to test that evidence by means of cross-examination.
On 9 March 2010 the Novi Sad Appeals Court upheld the first-instance judgment of 30 March 2009. It acknowledged that the statement of Robert Kolompar of 4 April 2008 was the sole evidence against Atila Dimović and that the only corroborative evidence against Marijano Dimović and Tihomir Hajnal were the statement of U.Đ. made at the trial on 23 January 2009 and the DNA material belonging to Tihomir Hajnal 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 Robert Kolompar had made the statement in question in the presence of his counsel, V. Juhas Đurić, who had shortly thereafter become the applicants’ counsel.
In their constitutional appeal, the applicants invoked, inter alia, the right to a fair trial. In this connection, they submitted that the statement of Robert Kolompar of 4 April 2008 ought not to be admitted since they had not been able to test that evidence by means of cross-examination. They added that it was irrelevant that V. Juhas Đurić, their current counsel, had been present when Robert Kolompar had made the impugned statement on 4 April 2008 because he had become their counsel only after that date. In their opinion, it was crucial that they had not been able to examine or have examined Robert Kolompar either on 4 April 2008 or later. They relied in this connection on Lucà v. Italy, no. 33354/96, ECHR 2001‑II.
On 29 September 2011 the Constitutional Court rejected the applicants’ appeal. It relied, like the appeals court, on the domestic provision according to which statements made by co-accused to the 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.
The applicants have served their prison sentences.
B. Relevant domestic law
The Code of Criminal Procedure 2001 (Zakonik o krivičnom postupku, Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09, 72/09, 76/10) was in force until 1 October 2013.
Article 337 § 1 of the Code provided, inter alia, that statements made by co-accused and witnesses to the investigating judge could be read out at the trial, and hence admitted as evidence, if the persons concerned had died in the meantime or were unable to appear before the court due to their health.
COMPLAINT
The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention about the fairness of their trial. Notably, they allege in that regard that their conviction was solely or mainly based on a statement of Robert Kolompar whom they were unable to question at any stage of the proceedings.
QUESTIONS TO THE PARTIES
1. Was the statement of Robert Kolompar made on 4 April 2008 the sole or decisive evidence against any of the applicants and were there sufficient counterbalancing factors including strong procedural safeguards to ensure that the applicants’ trial, judged as a whole, was fair within the meaning of Article 6 §§ 1 and 3 (d) of the Convention (see, among other authorities, Lucà v. Italy, no. 33354/96, ECHR 2001‑II; Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011; Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015; Seton v. the United Kingdom, no. 55287/10, 31 March 2016; and Dimović v. Serbia, no. 24463/11, 28 June 2016)?
2. Were the statements of Robert Kolompar made to the investigating judge on 4 April and 26 May 2008 read out at the trial? In this connection, you are required to submit a copy of the criminal file no. 119/08 concerning the case of Robert Kolompar.
Appendix
Atila DIMOVIĆ, a Serbian national, born in 1985, lives in Horgoš Marijano DIMOVIĆ, a Serbian national, born in 1988, lives in Hajdukovo Tihomir HAJNAL, a Serbian national, born in 1985, lives in Čantavir
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