Communicated on 29 August 2018
THIRD SECTION
Application no. 60951/12
Atila HUSAR
against Serbia
lodged on 6 February 2012
STATEMENT OF FACTS
1. The applicant, Mr Atila Husar, is a Serbian national, who was born in 1971 and lives in Hajdukovo. He is 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 applicant, may be summarised as follows.
3. On 28 May 2011 the applicant brought two persons from Kosovo to the Serbian-Hungarian border and paid Z.P. 100 euros (EUR) to bring them into Hungary. Soon after, the two persons from Kosovo and Z.P. were arrested by the Hungarian authorities. On 1 June 2011 the Serbian police arrested the applicant on suspicion of having organised an illegal border crossing.
4. On 2 June 2011 he was taken to the investigating judge who held that the applicant posed a high risk of re-offending and put him in pre-trial detention on a period up to eight days. The investigation judge relied, notably, on a statement of Z.P, on the fact that the applicant was unemployed and that he therefore "engaged in criminal activities" in order to provide for his unemployed wife and their three minor children and lastly on the fact that he was previously convicted for reckless driving.
5. The applicant’s appeal against that decision was rejected on 3 June 2011. Nevertheless, the applicant was released shortly thereafter (the applicant did not indicate the exact date). On 13 June 2011 the public prosecutor filed an indictment against the applicant in this connection.
6. On 7 July 2011 the public prosecutor filed indictment against the applicant in respect of the same criminal offence which had occurred the month after the first illegal border crossing had happened. The two cases were joined on 8 August 2011.
7. On 25 May 2015 the applicant was convicted with regard to the border crossing of 28 May 2011 and sentenced to 6 months’ imprisonment. On 12 November 2011 the second-instance court upheld that judgment.
8. On 22 December 2011 the Constitutional Court held that the detention order of 2 June 2011 was in violation of the right to liberty and security (because the untested evidence obtained from Z.P, the applicant’s difficult economic situation and previous conviction for reckless driving were not sufficient reasons for his detention) and in violation of the presumption of innocence in view of the wording of that order. The Constitutional Court did not award any damages. In addition the Constitutional Court ruled on 8 March 2012 and 17 April 2014 on the applicant’s two appeals in respect of detention imposed with regards to the second illegal border crossing.
B. Relevant domestic law
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 OG RS nos. 58/04, 85/05, 115/05, 49/07, 122/08, 20/09, 72/09 and 76/10)
9. The relevant Article reads as follows:
Article 436
“(1) Detention may be ordered against a person reasonably suspected of having committed a criminal offence for the purpose of unobstructed conduct of criminal proceedings:
...
2) if the criminal offence is punishable by a term of imprisonment of three years and particular circumstances indicate that the accused might complete the attempted criminal offence, commit the criminal offence he is threatening to commit, or repeat the criminal offence.”
COMPLAINT
The applicant complains that his detention, imposed on 2 June 2011, was unlawful and/or arbitrary and therefore in breach of Article 5 § 1 of the Convention. Also he complains about lack of redress in that respect.
QUESTION TO THE PARTIES
1. Has there been a breach of Article 5 § 1 of the Convention? In particular has the applicant’s detention ordered on 2 June 2011 been unlawful and/or arbitrary and therefore in breach of Article 5 § 1 (c)?
2. Did the applicant have an effective and enforceable right to compensation for his unlawful detention in contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?
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