Communicated on 5 February 2014
SECOND SECTION
Application no. 66641/10
Zorka RANĐELOVIĆ and others
against Montenegro
lodged on 23 March 2011
STATEMENT OF FACTS
The applicants are family members of several Roma who died or disappeared in the circumstances described below. They are all represented by Vladan Stanojević, the Director of the Roma Centre for Strategy, Development and Democracy (hereinafter “the Roma Centre”). A list of the applicants and their personal details is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows:
1. The incident at sea and the ensuing investigation and the criminal proceedings
In the night between 15 and 16 August 1999 between 70 and 100 Roma boarded the boat “Miss Pat” on the Montenegrin coast with the intention of reaching Italy. A few hours later the boat sank due to the large number of passengers.
By 30 August 1999 one of the passengers was found alive on the Montenegrin shore, and thirty-five bodies were found in the sea, twelve of which were identified by their relatives. The forensic specialists who performed autopsies on all the bodies by 30 August 1999 stated that the cause of death could not be established with certainty only by the autopsy but that in their opinion the cause of death was drowning.
On 1 September 1999 the Court of First Instance (Osnovni sud) in Bar initiated a formal judicial investigation (rješenje o sprovođenju istrage) against seven persons, on the suspicion that they had committed the criminal offence of illegal crossing of the State border in connection with reckless endangerment.
By 21 October 1999 the investigating judge: (a) questioned two suspects who were available to the authorities at the time, as well as 30 other persons in relation to the incident, including one of the applicants; (b) requested that some other witnesses be questioned by the relevant authorities in Serbia; and (c) asked for the autopsy reports, an expert opinion on the capacity of the boat at issue and enquired about the weather conditions on the night of the incident.
On 21 October 1999 the State Prosecutor in Bar filed an indictment with the court in Bar against the seven suspects.
On 29 October 1999 the court in Bar declared that it lacked territorial competence to deal with the case at issue and transferred it to the court in Kotor. On 6 December 1999 the High Court (Viši sud) in Podgorica declared that the court in Bar was territorially competent to process the case, after which the case was transferred back.
By the end of 2002 the court in Bar decided that two defendants who were still at large be tried in their absence and appointed representatives for them ex officio. The remaining three defendants appeared before the court.
Between 25 December 2002 and 24 September 2003 ten main hearings (glavni pretres) were scheduled, five of which took place, and four were adjourned due to the absence of some of the defence lawyers, some of the defendants, an interpreter and/or some of the witnesses; there is no information in the case-file about one of the hearings. During the hearings the court questioned four defendants and eleven witnesses.
On 24 September 2003 the court decided to re-commence the hearing due to the passage of time. By 14 April 2004 ten hearings were scheduled, six of which took place, and four were adjourned due to the absence of one of the defence lawyers or some of the witnesses. During the hearings, the court read the indictment again, questioned four defendants and sixteen witnesses, and read the statements made by the witnesses before; the fifth defendant wished to remain silent.
On 14 April 2004 the Supreme State Prosecutor (Vrhovni državni tužilac) in Podgorica instructed the State Prosecutor in Bar to specify the indictment in terms of the facts and the legal qualification of the criminal offences, after which the court in Bar would declare that it lacked competence to deal with the case and would transfer it to the High Court in Podgorica, as the competent court to deal with it. The indictment was amended and the case file transmitted to the High State Prosecutor (Viši državni tužilac) and the High Court in Podgorica.
On 26 May 2004 the High State Prosecutor requested an investigation (zahtjev za sprovođenje istrage) against the same seven persons as well as against a certain Z, on suspicion that they had committed the criminal offence of reckless endangerment.
By 20 October 2004 the High Court questioned four defendants, while the fifth one wished to remain silent. It also ordered that the remaining three defendants be brought before the court.
On 11 November 2004 an investigating judge of the High Court in Podgorica decided to initiate a formal judicial investigation against the said eight persons, which decision was upheld by the High Court on 25 November 2004.
On 25 February 2006 the High State Prosecutor urged the investigating judge to finish the investigation.
On 28 March 2006 an expert witness issued his opinion on the capacity of the boat at issue.
On 31 October 2006 the High State Prosecutor charged eight defendants with reckless endangerment, as provided by section 338 (2) in connection with section 327 (1) and (3) of the Criminal Code (see B.1 below).
Between 24 and 28 November 2006 the indictment was served on four defendants.
On 15 January 2007 the president of the chamber informed the president of the High Court that the main hearing could not be scheduled yet given that the indictment had not yet been served on all the defendants.
By 15 February 2008 the High Court issued a national arrest warrant (potjernica) against one of the defendants, and attempted to serve it on the other three, one of whom was in detention in Podgorica at the time, the other two having their residence in Serbia and Bosnia and Herzegovina, respectively.
On 3 April 2008 the High Court rejected the indictment against Z (the defendant whose residence was in Serbia), which decision was upheld by the Court of Appeals on 26 May 2008.
By 28 September 2009 the High Court decided that the two defendants who were at large, one of them with residence in Bosnia and Herzegovina, were to be tried in their absence.
On 28 September 2009, at the first main hearing, one of the defendants, X, stated that he was illiterate and did not understand the indictment. Upon the proposal of his lawyer the hearing was adjourned until further notice, so that the indictment could be translated into Romani. By 31 October 2009 the translation of the indictment into Romani was available.
In the course of 2010 seven hearings were scheduled. Two hearings were held during which the indictment was read, and four defendants were questioned, while the fifth one, X, chose to remain silent. Five hearings were adjourned due to the absence of some of the defendants, some of the defence lawyers, the interpreter for Romani, and one witness.
On 25 January 2011 another judge of the High Court, P.T., took over the case.
All six hearings that were scheduled by 20 July 2011 were adjourned: (a) three hearings were adjourned because there was no permanent court interpreter for Romani; (b) two were adjourned due to the absence of defence lawyers and witnesses; and (c) one was adjourned because of the absence of one defendant, several defence lawyers, and the absence of an interpreter, who had not yet been appointed.
There is no information in the case file as to what happened after 20 July 2011.
2. The Ombudsman's involvement
On an unspecified date the Roma Centre complained to the Ombudsman asking that the criminal proceedings be expedited and the responsible persons punished, as well as that a DNA analysis be performed on the bodies buried in a mass grave in the vicinity of Podgorica.
On 7 December 2009 the Ombudsman issued a report in this regard, noting, in substance, that the investigation had lasted for more than seven years, and that ten years after the event the criminal proceedings were not yet terminated, which was not justified. He recommended the High Court to undertake all necessary steps in order to terminate the proceedings at issue as soon as possible.
On 21 December 2010 the Ombudsman enquired as to what had been done in the meantime. The judge in charge informed him of the hearings scheduled between October and December 2010.
3. Other relevant facts
On 19 August 1999 the only surviving passenger was found guilty of having boarded the boat on 16 August 1999 with the intention of illegally crossing the border to Italy and was fined by the Misdemeanour Court (Sud za prekršaje) in Kotor.
In the course of 2002 a number of family members of disappeared persons, two of them being applicants in the present case, urged that the proceedings in the present case be expedited. Some of them claimed that their next-of-kin were alive but had been trafficked. Apparently some of the others also hoped that their family members might still be alive.
On 15 June 2011 the President of the High Court requested the Ministry of Justice to appoint as soon as possible a permanent court interpreter for Romani, stressing that the criminal proceedings in question “lasted too long”, one of the reasons being the absence of an adequate interpreter for Romani.
It would appear that on several occasions the Roma Centre requested the High Court to expedite the proceedings at issue.
B. Relevant domestic law
1. The Criminal Code (Krivični zakonik, published in the Official Gazette of the Republic of Montenegro - OG RM - nos. 70/03, 13/04, 47/06, and the Official Gazette of Montenegro - OGM - nos. 40/08, 25/10, 73/10, 32/11, 64/11, and 40/13)
Section 327 (1) provides, inter alia, that whoever jeopardises a human life or a human body by a dangerous activity or by dangerous means, shall be punished with imprisonment of between six months and five years. Section 327 (3) provides that if this criminal offence is committed in a place where there is a large number of people (veći broj ljudi), the perpetrator shall be punished with imprisonment of between one and six years.
Section 338 (2) provides that if the criminal offence envisaged by section 327 (1) – (3) resulted in the death of one or more persons, the perpetrator shall be punished with imprisonment of between two and twelve years.
2. The Criminal Procedure Code (Zakonik o krivičnom postupku; published in the OG RM nos. 71/03, 07/04, and 47/06)
Section 8 provided, inter alia, that the parties to the criminal proceedings who did not speak the official language of the court could use their language instead, in which case both translation of all the documents as well as interpretation would be provided for.
Section 16 (2) provided that the court had a duty to conduct the proceedings without delay and to prevent any abuse of the rights belonging to the parties to the proceedings.
Section 266 provided that if the investigation was not terminated within six months, an investigating judge had to inform the president of the court about the reasons therefor. If needed, the president would take measures to terminate the investigation.
Section 272 provided that the parties to the proceedings as well as the victims could complain about delays in the proceedings and other irregularities to the president of the court. The president of the court would look into the complaint and, if an appellant so requested, would inform him/her of what was done in that regard.
Section 291 (2) provided for the president of the chamber to schedule a main hearing within two months at the latest as of the day when the indictment was received by the court. If the main hearing was not scheduled within this time-limit the president of the chamber would inform the president of the court about the reasons therefor, and the latter would then, if needed, undertake measures to schedule the main hearing.
Sections 311-315, inter alia, set out details as to the adjournment of hearings in cases of absence of various parties to the proceedings.
3. The Courts Act (Zakon o sudovima; published in the OG RM nos. 05/02, 49/04, 22/08, 39/11, 46/13 and 48/13)
Section 84 provides, inter alia, that the president of a court is in charge of organising the work in the court and undertakes the measures in order to ensure prompt and timely performance of duties in the court.
COMPLAINTS
Under various Articles of the Convention the applicants, in substance, complain about the failure of the relevant Montenegrin bodies to properly and promptly investigate the death and/or disappearance of their family members and prosecute those responsible.
QUESTIONS TO THE PARTIES
1. Is the applicants' complaint, considered under the procedural aspect of Article 2, compatible with the provisions of the Convention ratione temporis, in view of the fact that the incident here at issue had occurred before the respondent State's ratification of the Convention (see Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009; and Marta Jularić v. Croatia (dec.), no. 20106/06, 2 September 2010)?
2. Having regard to the issue under the procedural aspect of Article 2, have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention (see, mutatis mutandis, Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002‑III; and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 165, ECHR 2009)?
3. Having regard to the procedural protection of the right to life (see, for example, Branko Tomašić and Others v. Croatia, no. 46598/06, § 62, 15 January 2009, and Öneryıldız v. Turkey [GC], no. 48939/99, §§ 95-96, ECHR 2004‑XII), were the investigation in the present case by the domestic authorities and the criminal procedings as a whole in breach of Article 2 of the Convention? The Government are also requested to inform the Court if there were any developments in the criminal proceedings after 20 July 2011 and, if so, to submit the relevant documents in that regard (e.g. copies of the hearing minutes, decisions, etc.).
Appendix
No.
First name LASTNAME
Birth date
Deceased/disappeared relative
Nationality
Place of residence
Zorka RANĐELOVIĆ
10/09/1944
Son and two grandchildren
Serbian
Knjaževac, Serbia
Dasa FERATOVIĆ
13/08/1976
Parents, wife and three children
Serbian
Knjaževac, Serbia
Nardživana DŽAFEROVIĆ
28/06/1952
Son, daughter-in-law and three grandchildren
Serbian
Bujanovac, Serbia
Nedžmija TAIROVIĆ
26/07/1960
Husband, son, daughter, brother-in-law with his daughter
Serbian
Žarkovo, Serbia
Darko RADOSAVLJEVIĆ
02/02/1978
Sister
Serbian
Lazarevac, Serbia
Salija BERIŠA
16/05/1973
Wife and two children
Serbian
Sremčica, Serbia
Pravdo BOJKOVIĆ
11/12/1968
Brother, sister-in-law, two nieces
Serbian
Železnik, Serbia
Mirka BOJKOVIĆ
27/02/1945
Daughter, son-in-law, three grandchildren
Serbian
Železnik, Serbia
Ivica JOVANOVIĆ
01/01/1975
Wife
Serbian
Knjaževac, Serbia
Manojlo RISTIĆ
21/11/1982
Wife and two children
Serbian
Kaluđerica, Serbia
Begija GAŠI
25/12/1960
Two sons, two daughters-in-law and five grandchildren
Serbian
Podgorica, Montenegro
Qulsefa RAŠIDOLSKA
01/01/1957
Son, daughter-in-law, granddaughter
Serbian,
the Former Yugoslav Republic of Macedonia
Smederevo, Serbia
Elvira ABDULAHU
05/09/1982
Mother
Serbian
Kruševac, Serbia
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