Communicated on 11 July 2014
THIRD SECTION
Applications nos 49318/07 and 58216/13
Boško MIKULOVIĆ against Serbia
and Predrag VUJISIĆ against Serbia
lodged on 31 October 2007 and 5 September 2013 respectively
STATEMENT OF FACTS
The applicant in the first case, Mr Boško Mikulović, is a Serbian national, who was born in 1955 and is currently serving a prison sentence in Zabela Prison near Požarevac in Serbia.
The applicant in the second case, Mr Predrag Vujisić, is a Serbian national, who was born in 1967 and is currently serving a prison sentence in Padinska Skela Prison near Belgrade in Serbia. He is represented before the Court by Mr M. Kovačević, a lawyer practising in Niš, Serbia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The facts concerning Mr Mikulović
On 17 December 1992 the applicant committed a murder.
On 20 June 2003 the District Court in Kruševac (Okružni sud u Kruševcu) handed the applicant a 40-year prison sentence for murder, under the Criminal Code of Serbia.
On 20 November 2003 the Supreme Court of Serbia (Vrhovni sud Srbije) quashed that judgement and remitted the case to the first-instance court for retrial.
On 21 May 2004 the District Court in Kruševac again sentenced the applicant to a 40-year prison sentence for murder.
On 4 November 2004 the Supreme Court of Serbia quashed that judgement and remitted the case to the first-instance court for retrial.
On 5 August 2005 the District Court in Kruševac again sentenced the applicant to a 40-year prison sentence for murder.
On 23 November 2005 the Supreme Court of Serbia upheld that judgement.
On 19 May 2006 the Supreme Court of Serbia in another formation changed the legal qualification of the applicant’s offence to aggravated murder and upheld the remainder of the judgement.
On 28 May 2007 the Supreme Court of Serbia rejected the applicant’s appeal on points of law. The applicant received that decision on 8 August 2007.
2. The facts concerning Mr Vujisić
On 5 October 2000 the applicant committed a murder.
On 22 August 2005 the District Court in Vranje (Okružni sud u Vranju) sentenced the applicant to a 40 year prison sentence for murder, under the Criminal Code of Serbia.
On 22 December 2005 the Supreme Court of Serbia quashed that judgement and remitted the case to the first-instance court for retrial.
On 13 November 2006 the District Court in Vranje again sentenced the applicant to a 40 year prison sentence for murder.
On 25 September 2007 the Supreme Court of Serbia upheld that judgement.
On 5 September 2008 acting as a third-instance court, the Supreme Court of Serbia upheld the judgement.
On 25 March 2010 the Supreme Court of Cassation rejected the applicant’s appeal on points of law.
On 7 February 2013 the Constitutional Court of Serbia rejected the applicant’s constitutional appeal.
B. Relevant domestic law
At the time when the applicants committed the crimes in question, the Federal Criminal Code in its general provisions defined which penalties could be prescribed on both republic and federal levels. The death penalty was prescribed as one of possible penalties for murder in the Criminal Code of Serbia.
1. Criminal Code of the Socialist Federal Republic of Yugoslavia
The Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 (Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, in the Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01, and in OG RS no. 39/03) was in force until 1 January 2006.
The relevant provisions of the Code provided as follows:
Article 3. Lawfulness in the determination of criminal acts and imposition of criminal sanctions
No punishment or other criminal sanction may be imposed on anyone for an act which, prior to being committed, was not defined by law as a criminal act, and for which a punishment has not been prescribed by statute.
Article 4. Mandatory application of a less severe criminal law
1. The law that was in power at the time when a criminal act was committed shall be applied to the person who has committed the criminal act.
2. If the law has been altered one or more times after the criminal act was committed, the law which is less severe in relation to the offender shall be applied.
Article 7. Effectiveness of the General Part
Provisions of the General Part of this Code are applicable to all criminal acts defined in the laws of the federation, republics and autonomous provinces.
Article 34. Types of punishment
The following punishments may be imposed on the perpetrators of criminal acts:
1. capital punishment;
2. imprisonment;
3. fine;
4. confiscation of property.
Article 38. Imprisonment
(1) The punishment of imprisonment may not be shorter than 15 days nor longer than 15 years.
(2) The court may impose a punishment of imprisonment for a term of 20 years for criminal acts eligible for the death penalty.
...
On 17 November 2001 Article 34 of this Criminal Code was amended and the death penalty was deleted from the list of available penalties.
2. Criminal Code of the Socialist Republic of Serbia
The Criminal Code of the Socialist Republic of Serbia 1977 (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force until 31 December 2005.
The relevant provisions of the Code provided as follows:
Article 47. Murder
Whoever causes death of another shall be punished with imprisonment of minimum five years.
Imprisonment of minimum ten years or death penalty [is proscribed for] whoever:
1) causes the death of another in a cruel or insidious manner;
2) causes the death of another by callous violent behaviour;
3) causes the death of another and with premeditation endangers the life of other person;
4) causes the death of another for gain, to commit or conceal another offence, for callous revenge or other base motives;
...
On 9 March 2002 this Criminal Code was amended and the death penalty was replaced with the prison sentence of 40 years.
COMPLAINT
The applicants complain under Article 7 of the Convention that they were given a heavier sentence than the one prescribed by the law which, of all the laws in force during the period between the commission of the offence and delivery of the final judgment, was most favourable to them, in breach of Article 7 of the Convention.
QUESTION TO THE PARTIES
Were the applicants given a heavier sentence than the one prescribed by the law, which, of all the laws in force during the period between the commission of the offence and delivery of the final judgment, was the most favourable to them, in breach of Article 7 of the Convention (cf. Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 108 and 109, 17 September 2009)?
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