Communicated on 29 September 2015
THIRD SECTION
Application no. 54574/07
Dragoslav PAUNOVIĆ
against Serbia
lodged on 3 December 2007
STATEMENT OF FACTS
1. The applicant, Mr Dragoslav Paunović, is a Serbian national, who was born in 1956 and lives in Soko Banja.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 2 August 2006 the Aleksinac Municipal Public Prosecutor’s Office indicted the applicant for causing death and bodily harm by dangerous driving (teško delo protiv bezbednosti javnog saobraćaja).
4. On 12 December 2006 the Aleksinac Municipal Court (Opštinski sud u Aleksincu) sentenced the applicant to 6 months’ imprisonment for the said offence.
5. On 12 April 2007 the Niš District Court (Okružni sud u Nišu), in a formation consisting of three judges, including Judge B.K. as judge rapporteur, upheld the first-instance judgment.
6. The applicant appealed on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude) complaining inter alia about the presence of Judge B.K. on the bench of the Niš District Court in the appeals proceedings. The applicant claimed that as Judge B.K. had held the position of Deputy Municipal Public Prosecutor in Aleksinac during the first-instance criminal proceedings against him, the composition of the Niš District Court’s bench violated the guarantees of impartiality.
7. On 23 October 2007 the Supreme Court of Serbia dismissed the applicant’s appeal finding that Judge B.K. did not participate as a prosecutor in the applicant’s proceedings. The said court found:
“The Supreme Court finds the complaints from the appeal to be groundless as from the casefile it transpires that the member of the bench Judge B.K. did not participate in these proceedings as a Deputy Municipal Public Prosecutor nor had he taken part in the investigation and therefore need not have been removed from the bench for the mere fact that during the first-instance proceedings he held the said function in Aleksinac.”
B. Relevant domestic law
8. The relevant provision of the Code of Criminal Procedure 2001 (Zakonik o krivičnom postupku, Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02; and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, and 46/06) provided as follows:
CHAPTER III – DISQUALIFICATION
Article 40.
“A judge or lay judge shall be excluded from sitting in a case:
1) if he has been injured by the offence;
...
5) in the same criminal case he took part in the investigation or if he has taken part in the proceedings as a prosecutor, defense counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness;”
COMPLAINT
9. The applicant claimed that, before the Niš District Court, his case had not been examined fairly by an impartial tribunal, having regard to the presence on the bench of a Judge B.K. who had previously held the position of Deputy Municipal Public Prosecutor during the first-instance criminal proceedings against him. He relied on Article 6 § 1 of the Convention.
QUESTION TO THE PARTIES
Was the court which dealt with the applicant’s case impartial, as required by Article 6 § 1 of the Convention?
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