SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 3103/05
by Nikola MAKSIMOVIĆ
against Serbia
The European Court of Human Rights (Second Section), sitting on 9 October 2007 as a Chamber composed of:
MrsF. Tulkens, President,
MrA.B. Baka,
MrG. Bonello,
MrI. Cabral Barreto,
MrM. Ugrekhelidze,
MrsA. Mularoni,
MrD. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 29 December 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Nikola Maksimović, is a Serbian national who was born in 1949 and lives in Lukićevo. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The criminal proceedings
In 2001 the Zrenjanin Municipality Public Prosecutor indicted the applicant for abuse of office.
On 31 March 2004 the Zrenjanin Municipal Court found the applicant guilty and imposed a suspended prison sentence (uslovna osuda) of three months. The applicant appealed, claiming that the facts established in the first-instance judgment were incorrect.
On 30 June 2004 the Zrenjanin District Court dismissed the applicant’s appeal and upheld the first-instance judgment.
B. The proceedings concerning the economic offence
On 4 December 2001 the Zrenjanin Municipality Public Prosecutor filed an indictment against Company B. and the applicant in the Zrenjanin Commercial Court for an economic offence concerning the security of payments.
Following Serbia’s ratification of the Convention on 3 March 2004, the applicant requested the competent court to stay the proceedings pending the outcome of the aforementioned criminal proceedings (Chapter A above). He claimed that the two proceedings concerned the same amounts of money and thus the same offence.
The court stayed the proceedings.
On 4 February 2005 the Zrenjanin Commercial Court requested the Zrenjanin Municipal Court to provide a copy of the case file in the other criminal proceedings. However, that court was unable to do so as the file had been sent to the Zrenjanin District Court following the applicant’s request for a reopening of the criminal case and his subsequent appeal against the refusal to do so.
Once the proceedings resumed, hearings scheduled for 27 March and 20 April 2006 were adjourned because Company B.’s legal representative had failed to appear. On the last-mentioned date the Zrenjanin Commercial Court fined Company B. for its failure to appear in court.
The court held the next hearing on 11 May 2006, when the applicant requested time to set out his defence in writing. The hearing scheduled for 28 September 2006 was again adjourned due to the co-defendant’s failure to appear. The court ordered that the legal representative of Company B. be brought to the next hearing by the police.
On 12 October 2006 the Zrenjanin Commercial Court gave judgment acquitting both the applicant and Company B. of all charges.
COMPLAINTS
The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention about the fairness of the criminal proceedings and the fact that the first-instance court never heard a certain N.D. as a witness.
The applicant further complained about the length of the proceedings concerning the economic offence.
THE LAW
1. The applicant firstly complained about the fairness of the criminal proceedings and the failure of the domestic courts to hear a certain N.D. The applicant relied on Articles 6 §§ 1 and 3 (d), which insofar as relevant provide as follows:
Article 6 § 1
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”
Article 6 § 3 (d)
“Everyone charged with a criminal offence has the following minimum rights:...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”
In this connection, the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, § 45, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
In the instant case the Court observes that the applicant had the benefit of adversarial proceedings and that he was able to submit the arguments he considered relevant to his case at various stages of the proceedings. The Court finds nothing in the case file to indicate that the national courts’ decisions were arbitrary or that the proceedings were otherwise unfair or in breach of Article 6 § 1.
It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
In respect of the applicant’s complaint under Article 6 § 3 (d) of the Convention, the Court observes that the applicant failed to prove that he ever proposed that N.D. be heard during the first-instance proceedings. In any event, he did not complain about this matter in his appeal to the second-instance court.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. The applicant further complained about the length of the proceedings concerning the economic offence.
The Court observes that those proceedings started on 4 December 2001 and ended on 12 October 2006, when the applicant was freed from all charges. However, the period which falls within the Court’s competence ratione temporis began on 3 March 2004, the date when the Convention entered into force in respect of Serbia. It therefore amounts to two years and seven months before one level of jurisdiction.
The Government contested the applicant’s claim in this respect. They first submitted that the applicant had failed to exhaust various domestic remedies and that, in their view, given the specific nature of economic offences, Article 6 § 1 of the Convention was not applicable to these proceedings.
Concerning the merits of the applicant’s complaint, the Government argued that the case was factually complex. They pointed out that the applicant himself requested a stay of these proceedings pending the outcome of the criminal case, and subsequently filed for its re-opening. Once the proceedings resumed, he also sought time to submit his defence in writing, rather than doing so at an oral hearing. In the Government’s view, it is evident that the applicant through his actions significantly contributed to the length of the impugned proceedings. Moreover, prolongations were in his interests, as the prosecution would have become statute barred in December 2006.
The Government further submitted that the applicant’s co-defendant, Company B., had also contributed to the protracted character of the proceedings, despite the efforts of the competent court to sanction its dilatory conduct.
The Court does not consider it necessary to examine the issues of exhaustion of domestic remedies or of the applicability of Article 6 to the proceedings at hand, as the present case is in any event inadmissible for the following reasons.
The Court recalls at the outset that proceedings concerning economic offences, such as fraud and tax offences, may be rather complex and may justify lengthy proceedings (see e.g. Hozee v. the Netherlands, judgment of 22 May 1998, Reports of Judgments and Decisions 1998‑III, p. 1102, § 52, and Wejrup v. Denmark (dec.), no. 49126/99, ECHR 2002‑IV). In the present case there were two defendants and the commercial court was obliged to stay the proceedings pending the outcome of the parallel criminal case.
The Court further observes that the applicant contributed to the protraction of the proceedings by not requesting their resumption immediately after 30 June 2004, when his criminal conviction became final.
Once the proceedings resumed, the competent authorities proceeded with due diligence, sanctioning the co-defendant’s failure to appear at hearings and bringing the case to an end.
Having regard to all the material in its possession, the Court considers that the length of the proceedings in the instant case was not excessive.
It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. Dollé F. Tulkens
RegistrarPresident
Full & Egal Universal Law Academy