FOURTH SECTION
DECISION
Applications nos. 20396/17 and 21614/17
Mićo PETRAKOVIĆ against Serbia
and Zoran GULIĆ against Serbia
The European Court of Human Rights (Fourth Section), sitting on 21 November 2023 as a Committee composed of:
Tim Eicke, President,
Branko Lubarda,
Ana Maria Guerra Martins, judges,
and Branimir Pleše, Acting Deputy Section Registrar,
Having regard to:
the applications against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the fairness of criminal proceedings which were brought against the applicants and their right to examine witnesses.
2. The applicants were defence witnesses in a criminal case instituted against Z.J. concerning the assassination of Mr Đinđić in Belgrade on 12 March 2003. At that time, Mr Đinđić was the Prime Minister of the Republic of Serbia. During the criminal proceedings, the applicants testified that on 11 March 2003 Z.J. had not been in Belgrade. They stated that he had been in the town of Kula parachute jumping. However, based on a plethora of evidence, including statements given by other witnesses and various official expert reports, the national courts established that Z.J. had in fact been in Belgrade on 10,11 and 12 March 2003 and had committed the crime with which he was charged. By a final judgment of 23 May 2007, Z.J. was found guilty of murder and sentenced to forty years’ imprisonment.
3. The applicants were subsequently charged with perjury, i.e., for making false statements during the criminal proceedings against Z.J. The applicants asked the trial court to hear in person Z.J., other witnesses who had already been heard as prosecution witnesses in the criminal case against Z.J. and a number of other individuals. In particular, one of the people whose attendance the applicants requested was a helicopter pilot who had previously testified, in the case against Z.J., that the latter had not been parachute jumping in Kula as claimed by the applicants.
4. At the applicants’ trial, the court at the first level of jurisdiction relied on the final judgment of 23 May 2007 and the transcripts from the hearings in the case against Z.J. It also examined two reports issued by the Ministry of the Interior and the Air Traffic Control Agency “proving that Z.J. had not been in Kula” as claimed by the applicants. Having regard to that evidence, the court refused to hear the witnesses proposed by the applicants. It explained that the hearing of those witnesses would bring “no added value to the case”, particularly given that the facts had already been established in the final judgment of 23 May 2007 (see paragraph 2 above). On 19 October 2012 the applicants were thus found guilty of perjury and sentenced to eleven months’ imprisonment.
5. This judgment was upheld by the Court of Appeal, the Supreme Court of Cassation and the Constitutional Court, on 8 November 2013, 4 June 2014 and 3 November 2016 respectively.
6. The applicants complained that there had been a breach of their rights under Article 6 §§ 1 and 3 (d) of the Convention. They argued, in particular, that the criminal proceedings against them had been unfair, notably because they had been unable to examine certain witnesses.
THE COURT’S ASSESSMENT
7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
8. The general principles concerning the right of an accused to obtain the attendance of witnesses are well established in the Court’s case-law (see, for example, Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 150-68, 18 December 2018).
9. In Murtazaliyeva the Court adopted a three-pronged test as regards the examination of complaints concerning the domestic courts’ refusal to examine a witness on the applicant’s behalf:
(1) whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation;
(2) whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial;
(3) whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings (ibid., § 158).
10. The Court furthermore reiterates that, on the one hand, under Article 6 of the Convention the admissibility of evidence is primarily a matter for regulation by national law and the domestic courts are best placed to decide on the issue and, on the other hand, Article 6 § 3 (d) of the Convention does not require the attendance and examination of every witness on the accused’s behalf, but aims to ensure equality of arms in the matter. Within this framework it is primarily for the domestic courts to scrutinise carefully the relevant issues if the defence advances a sufficiently reasoned request to examine a certain witness. Any such assessment would necessarily entail consideration of the circumstances of a given case and the reasoning of the courts must be commensurate, i.e. adequate in terms of scope and level of detail, with the reasons advanced by the defence. Since the Convention does not require the attendance and examination of every witness on behalf of the accused, the courts cannot be expected to give a detailed answer to every motion of the defence but must provide adequate reasons. Generally the relevance of testimony and the sufficiency of the reasons advanced by the defence in the circumstances of the case will determine the scope and level of detail of the domestic courts’ assessment of the need to ensure a witness’ presence and examination. Accordingly, the stronger and weightier the arguments advanced by the defence, the closer must be the scrutiny and the more convincing must be the reasoning of the domestic courts if they refuse the defence’s request to examine a witness (ibid., §§ 163-66).
11. Turning to the present case, the applicants failed to provide sufficient reasons as to why those witnesses should have been heard in the case against them, while the national courts, for their part, provided sufficient reasons for not doing so (see paragraphs 3 and 4 above). Furthermore, there is nothing to suggest that the overall fairness of the proceedings against the applicants was affected in any way. In this connection, the Court notes, in particular, that the applicants’ statements about Z.J.’s whereabouts on the day before the assassination had already been established as false in the adversarial criminal proceedings against Z.J. himself which, in turn, led to the applicants’ own prosecution (see paragraphs 2 and 4 above). In this situation, the trial court in the applicants’ case was effectively bound by the facts as established in the final judgment of 23 May 2007 (see paragraph 4 above). In any event, the veracity of the statements given by the relevant witnesses had already been established in the adversarial proceedings against Z.J. and their repeated questioning in the proceedings against the applicants would therefore have been of no use for the proper administration of justice (ibid.). Lastly, the Court reiterates that the applicants, assisted by lawyers, were able to, considered overall, present their version of the events to the domestic courts and to challenge the evidence presented by the prosecution (see paragraphs 2-4 above).
12. In view of the foregoing, it cannot but be concluded that the applicants’ right to a fair trial, considered overall, was ensured by the national courts.
13. It follows that the applicants’ complaints under Article 6 §§ 1 and 3 (d) of the Convention are manifestly ill-founded and must as such be rejected in accordance with Article 35 §§ 3 (a) and 4 thereof.
14. The applicants also raised other complaints under various Convention provisions. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
15. It follows that these complaints must also be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 14 December 2023.
Branimir Pleše Tim Eicke
Acting Deputy Registrar President
Appendix
List of cases:
No.
Application no.
Case name
Introduction date
Applicant’s name
Year of birth
Place of residence
Nationality
Representative’s name
Location
1.
20396/17
Petraković v. Serbia
07/03/2017
Mićo PETRAKOVIĆ
1972
Novi Sad
Serbian
Dušan IGNJATOVIĆ
Belgrade
2.
21614/17
Gulić v. Serbia
09/03/2017
Zoran GULIĆ
1971
Kula
Serbian
Dušan IGNJATOVIĆ
Belgrade
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