Communicated on 5 January 2015
THIRD SECTION
Application no. 24463/11
Ivica DIMOVIĆ and Jozef DIMOVIC
against Serbia
lodged on 5 March 2011
STATEMENT OF FACTS
1. The applicants, Mr Ivica Dimović (“the first applicant”) and Mr Jožef Dimović (“the second applicant”), are Serbian nationals, who were born in 1980 and 1964, respectively, and currently live in Hajdukovo. They are both represented before the Court by Mr V. Juhas Đurić, a lawyer practising in Subotica.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 12 February 2007 the applicants and their friend S.K. were indicted for allegedly having stolen a winepress (presu za grožđe).
4. On 25 January 2008 the Subotica Municipal Court acquitted all three defendants of these charges. In so doing, it explained that while there was evidence that they had been in possession of a winepress, there was nothing to suggest that they had obtained it through any criminal activity. The applicants themselves maintained that they had found the winepress abandoned, while S.K. denied the charge and thereafter exercised his right to remain silent.
5. On 8 April 2008 the prosecution lodged an appeal against this judgment, emphasising, in particular, that the first instance court had failed to take into account S.K.’s statement given to the police on 26 January 2006 (albeit in the absence of the applicants and their counsel who had not been invited to attend).
6. On 12 May 2008 the Subotica District Court quashed the impugned judgment and ordered a retrial. The court explained that the statement referred to by the prosecution was particularly relevant since on this occasion S.K. had confessed, in the presence of his counsel, that he had stolen the winepress together with the applicants. While S.K. subsequently revoked this confession and then refused to answer any other questions, all of these circumstances needed to be reconsidered by the Municipal Court, notwithstanding the fact that the prosecution itself had initially failed to request that S.K.’s statement of 26 January 2006 be entered into evidence.
7. On 12 October 2008 S.K. passed away and on 29 December 2008 the Municipal Court discontinued the proceedings against him.
8. On 19 February 2009 the Municipal Court, having held a hearing and read out S.K.’s statement of 26 January 2006 before the parties, found the applicants guilty. The first applicant was sentenced to an effective prison term of six months while the second applicant was handed down a sentence of six months’ imprisonment, suspended for a period of two years. In its reasoning the court relied on S.K.’s statement of 26 January 2006.
9. On 29 July 2009 the District Court upheld this judgment on appeal, and on 7 October 2010 the Supreme Court rejected the applicants’ further appeal on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude).
10. In the meantime, on 11 September 2009, the applicants lodged a complaint with the Constitutional Court, alleging that their conviction had been based on the testimony of a person whom they had never had a chance to cross-examine and who had, in any event, revoked it subsequently.
11. On 14 October 2010 the Constitutional Court rejected the applicants’ appeal as manifestly ill-founded, adding that following the death of S.K. the lower courts had had no choice but to accept his prior statement given to the police and, clearly, could no longer accommodate the applicants’ objection regarding his cross-examination.
B. Relevant domestic law, case-law and commentary
12. Article 226 § 9 of the Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – no. 70/01, amendments published in OG FRY no. 68/02 and in the Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07 and 122/08) provides that a statement given by a suspect in a police station in presence of his lawyer may be used as evidence in a subsequent criminal trial. While this provision further requires that the public prosecutor be invited to attend this interrogation, there is nothing in terms of an additional obligation to invite any co-defendants and/or their counsel.
13. Article 337 § 1 (1) of the Code of Criminal Procedure provides, inter alia, that statements given by “co-indicted persons” (od strane saoptuženih) may be read out in court, and hence entered into evidence, if the person concerned had passed away in the meantime.
14. Any such statements given in a non-judicial context (van krivičnog postupka), as well as those given to a court of law but prior to a remittal, may not be taken into account (see Komentar Zakonika o krivičnom postupku, Prof. dr Tihomir Vasiljević and Prof. dr Momčilo Grubač, IDP Justinijan, Belgrade, 2005, p. 555, paragraph 1; see, also, the Federal Court’s ruling Kzs. 2/79 of 19 January 1979).
COMPLAINTS
15. The applicants complain, under Article 6 §§ 1 and 3 (d) of the Convention, about the overall fairness of the above-described criminal proceedings, notably their conviction based on the testimony of a person whom they had never had a chance to cross-examine and one who had, in any event, revoked his statement subsequently.
QUESTION TO THE PARTIES
Did the applicants have a fair hearing in the determination of the criminal charges in question and were they, in particular, able to examine witnesses against them, as required by Article 6 §§ 1 and 3 (d) of the Convention (see, for example, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118, 119, 146 and 147, ECHR 2011)?
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