FOURTH SECTION
DECISION
Application no. 32557/05
Momčilo MANDIĆ
against Montenegro, Serbia and Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 12 June 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 5 September 2005,
Having regard to the formal declarations filed by the Montenegrin Government and the applicant accepting a friendly settlement of the part of the case against Montenegro,
Having deliberated, decides as follows:
PROCEDURE
The applicant, Mr Momčilo Mandić, at the relevant time a national of the State Union of Serbia and Montenegro, and currently a national of Serbia and Bosnia and Herzegovina (BIH), was born in 1954 and lives in Belgrade. He was represented before the Court by Mr M. Panjević, a lawyer practising in Belgrade.
The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin.
THE FACTS
A. Events in Montenegro
1. On 17 August 2005, at 14:30, four Montenegrin policemen entered the applicant’s flat in Budva (Montenegro), handcuffed him and took him to a police vehicle. During the journey the applicant asked for an explanation but in response was allegedly verbally and physically abused with automatic weapons continuously pointed at him.
2. At about 16:00, when they reached a border crossing with BIH, one of the policemen told the applicant that he would be handed over (predat) to the BIH border police “upon an order of the highest authorities”.
3. At about 18:30 the applicant was taken over by the BIH security forces and transferred by helicopter to the Sarajevo central prison.
4. The same day, at an unspecified time, the applicant’s wife made an oral criminal complaint for abduction (usmena krivična prijava za otmicu) against unknown persons at the police station in Budva.
5. At about 20:00 Montenegrin media would appear to have informed the public that the Ministry of Interior had extradited the applicant to BIH.
6. It would appear that the applicant’s wife never obtained any response to the criminal complaint she had made.
B. Events in Bosnia and Herzegovina
7. On 17 August 2005, at approximately 22:00, the applicant was allowed to call his family, which he did.
8. On 19 August 2005 the Court of Bosnia and Herzegovina (Sud Bosne i Hercegovine) rendered a decision on the applicant’s detention. The decision specified that the applicant had been in BIH custody as of 17 August 2005 at 18:30, and that the detention would last until 16 September 2005 at 18:30. On 30 August 2005 the applicant’s appeal against this decision was rejected.
9. On 16 September 2005 the applicant’s detention was extended for another two months, his appeal against this decision being rejected on 30 September 2005.
10. On 30 January 2006 the BIH Prosecution Service filed an indictment (podigli optužnicu) against the applicant.
11. On 27 October 2006 the Court of BIH acquitted him of “associating for the purpose of perpetrating criminal offences” and of organised crime, but found him guilty of various offences falling within the ambit of extended abuse of office or official authority as well as of forgery (falsifikovanje isprave). He was sentenced to nine years in prison. At the same time the court decided that the applicant and another person should, jointly, pay compensation of 465,833.00 convertible marks (BAM) and that the applicant himself should additionally pay BAM 4,466,150.03.
12. On 29 March 2007 an Appeals Chamber of the Court of BIH partly overturned the previous judgment, acquitting the applicant of some of the acts falling within the scope of abuse of office, and reduced his prison sentence to five years. The time spent in detention was to be deducted from these five years.
13. On 13 May 2009 the applicant was released on probation.
C. Other relevant facts
1. Events in Serbia
14. On 7 June 2003 the Second Public Prosecutor’s Office (Drugo opštinsko javno tužilaštvo) in Belgrade requested an investigation in respect of the applicant on suspicion that between 1 November 2002 and 31 March 2003 he had been involved in an unauthorised banking business (bez dozvole za rad Narodne Banke Jugoslavije bavio bankarskim poslovima) in Belgrade. It would appear that the applicant, in this connection, was in detention between 13 April 2003 and 7 September 2003.
15. On 13 February 2004 the Public Prosecutor discontinued the prosecution (odustaje od krivičnog gonjenja) and on 4 March 2004 the investigation was terminated (obustavlja se istraga). On 29 March 2005 the applicant reached an agreement with the Serbian Ministry of Justice in respect of compensation for his detention.
2. Other relevant information
16. On 2 June 2003 an international prosecutor of BIH requested an investigation against the applicant for organised crime, including money laundering and acting contrary to relevant banking legislation, committed between September 2001 and an unspecified point in 2003.
COMPLAINTS
17. The applicant complained against Montenegro: (a) under Article 5 § 1(f) of the Convention that he was unlawfully deprived of his liberty and extradited, (b) under Article 5 § 2 that he was not informed of the reasons of his deprivation of liberty, and (c) under Article 5 § 4 that he was not able to institute proceedings in which a court could urgently examine the lawfulness of his deprivation of liberty. In the alternative, the applicant made the same complaints against Serbia.
18. In respect of Bosnia and Herzegovina he complained about the lawfulness of his pre-trial detention as well as the lack of fairness and outcome of his criminal trial. He also claimed that the courts in Serbia had already tried him and acquitted him of the same criminal offence of which he was later found guilty in BIH.
THE LAW
A. In respect of Montenegro
19. On 4 May 2012 the Court received the following declaration from the Government of Montenegro:
I, Zoran Pažin, the Montenegrin Government’s Agent, declare that the Government of Montenegro are ready to accept that there was a violation of the applicant’s rights under Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and offer to pay ex gratia to Mr Momčilo Mandić, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 10,500 euros to cover any and all damage on the basis of the violation of Article 5 of the Convention, which includes costs and expenses, plus any tax that may be chargeable to the applicant.
This sum will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case in respect of Montenegro.
The Government regret the occurrence of the actions which led to the filing of this application.
20. On 9 May 2012 the Court received the following declaration signed by the applicant:
I, Milorad Panjević, note that the Government of Montenegro are ready to accept that there was a violation of the applicant’s rights under Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and that they are prepared to pay ex gratia to Mr Momčilo Mandić, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 10,500 euros to cover any and all damage on the basis of the violation of Article 5 of the Convention, which includes costs and expenses, plus any tax that may be chargeable to the applicant.
This sum will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Having consulted my client, I would inform you that he accepts the proposal and waives any further claims against Montenegro in respect of the facts giving rise to this application. He declares that this constitutes a final resolution of the case in respect of Montenegro.
21. The Court takes note of the friendly settlement reached between the Government of Montenegro and the applicant. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention).
22. In view of the above, it is appropriate to strike the case against Montenegro out of the list.
B. In respect of Serbia
23. The applicant complained against Serbia as an alternative to Montenegro. Since the impugned events took place in Montenegro only, the Court considers that a complaint in respect of Serbia is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 (see, mutatis mutandis, Bijelić v. Montenegro and Serbia, no. 11890/05, §70, 28 April 2009; see, also, Lakićević and Others v. Montenegro and Serbia, nos. 27458/06, 37205/06, 37207/06 and 33604/07, §§ 40-41, 13 December 2011).
C. In respect of Bosnia and Herzegovina
24. The Court recalls that an appeal to the Constitutional Court of Bosnia and Herzegovina is, in principle, an effective domestic remedy for the purposes of Article 35 § 1 of the Convention (see Alibašić v. Bosnia and Herzegovina (dec.), no. 18478/08, 29 March 2011). As the applicant has not availed himself of this avenue of redress it follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to strike the complaint against Montenegro out of its list of cases;
Declares the remainder of the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy