Case No.: CH/00/3880
Applicant: Momčilo MARJANOVIĆ
Respondent Party: Republika Srpska
Date Delivered: 8 November 2002

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The applicant is a citizen of Bosnia and Herzegovina of Serb origin. He was arrested in July 1994 and charged with murder. On 18 July 1996 the applicant was convicted of murder and sentenced to 7 years imprisonment. Both the applicant and the Public Prosecutor filed appeals against the First Instance judgment and on 20 December 1996 the Court of Second Instance in Bijeljina accepted the applicant's appeal and ordered a re-trial. On 14 May 1998 the applicant's retrial commenced before the Court of Second Instance in Bijeljina and on 31 August 1999 he was convicted of murder and again sentenced to 7 years imprisonment. On 22 May 2000 the Supreme Court of the Republika Srpska accepted an appeal submitted by the Public Prosecutor and modified the applicant's sentence to 8 years imprisonment. On 18 March 2002 the applicant was released from custody. His sentence was to expire on 18 July 2002.

The applicant complained of various violations of his rights in relation to the lawfulness and length of his detention, the fairness and length of proceedings and that he was subjected to inhuman or degrading treatment in prison. He further complained that he was deprived of the right of access to family visits and that the prison authorities interfered with his right of access to a telephone and right to correspondence.

Admissibility

First, the Chamber considered whether it was competent, ratione temporis, to consider the case, bearing in mind that the applicant was deprived of his liberty before the entry into force of the Agreement on 14 December 1995. Recalling Damjanovic v. the Federation of Bosnia and Herzegovina, the Chamber noted that although it was required to confine its examination of the case to considering whether the human rights of the applicant had been violated or threatened with a violation since that date it could consider events prior to that date in order to assess the general manner in which the applicant's case had been dealt with.

Second, as regards the applicant's complaints concerning his right to life, right not to be treated to inhuman or degrading treatment or punishment and his right not to be required to perform forced or compulsory labour in prison, the Chamber concluded that his complaints were unsubstantiated and did not disclose any appearance of a violation of the rights and freedoms guaranteed under the Agreement.

Third, as regards non-exhaustion of domestic remedies, the Chamber concluded that the applicant had challenged, through the domestic courts, all decisions pertaining to his detention.

Fourth, as regards his allegations of discrimination, the Chamber concluded that, as he did not allege that he was treated differently on relevant grounds, his complaint concerning discrimination was manifestly ill-founded.

The Chamber declared the application admissible under Articles 5, 6 and 8 of the Convention and declared the remainder of the application inadmissible.

Merits

Article 5(1)(c) of the Convention

The Chamber concluded that for the period from 14 December 1995 to 20 February 1997 the applicant's detention was in accordance with a procedure prescribed by law for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence. However, the Chamber recalled that according to domestic law continued detention must be reviewed ex officio by a panel of judges two months after the last decision was taken. For the periods from 20 February 1997 to 9 September 1997 and from 9 November 1997 to 23 July 1998, in the absence of bi-monthly review, the applicant's detention was not in accordance with a procedure prescribed by law and thereby a violation of Article 5(1)(c) of the Convention.

Article 5(3) of the Convention

The Chamber found that in the applicant's case the domestic authorities failed to consider the elements that could have been "relevant and sufficient" to justify continued detention within the meaning of Article 5, paragraph 3 of the Convention. The applicant's detention was based solely on the grounds that there was a reasonable suspicion that the applicant had committed the offence charged and that the applicant faced a sentence of long-term imprisonment if convicted. The Chamber noted that the European Court of Human Rights has consistently stated that such grounds are not "relevant and sufficient" to justify continued detention. As regards the due diligence test, the Chamber held that the administrative running of a legal system is the responsibility of the respondent Party and any delays caused as a result will be directly attributable to the respondent Party. The Chamber also noted that there had been several lengthy periods of inactivity and despite the applicant contributing to some delay, the Chamber concluded that the length of the applicant's detention from 14 December 1995 until the 22 May 2000 exceeded all limits of reasonableness.

Article 5(4) of the Convention

The Chamber found that for the periods of detention from 20 February 1997 to 9 September 1997 and from 9 November 1997 to 23 July 1998 the applicant was prevented from taking proceedings by which the lawfulness of his detention could be decided speedily by a court. Consequently, the respondent Party violated the applicant's rights as guaranteed by Article 5, paragraph 4 of the Convention.

Article 6(1) of the Convention

As regards the applicant's complaint that he was prevented from cross-examining an expert witness during the first trial, the Chamber found that on 20 December 1996 the Court of Second Instance in Bijeljina accepted the applicant's appeal against the first instance judgment in which it specifically stated that by not summoning the expert witness the applicant's rights were violated. Accordingly, the Chamber concluded that any defects in the first trial in this respect were effectively remedied by the retrial proceedings.

As regards the reasonable time requirement, the Chamber found that the facts of the case as presented were not overly complex and could not have been reason enough to delay the proceedings. Secondly, the Chamber repeated that the administrative running of a legal system is the responsibility of the respondent Party and any delays caused as a result will be directly attributable to the respondent Party. The Chamber also noted that there had been several lengthy periods of inactivity and despite the applicant contributing to some delay, the Chamber concluded that the length of proceedings lasting from 14 December 1995 until 22 May 2000 exceeded the limits of reasonableness, thus violating his right to be tried within a reasonable time as guaranteed by Article 6(1) of the Convention.

Article 6(3)(c) of the Convention

The Chamber noted that the applicant was without any legal representation for a period of 7 months and the respondent Party provided no adequate explanation for this. In this respect, the Chamber concluded that effective legal representation during this period was strictly necessary and found this to be in violation of Article 6(3)(c) of the Convention.

Article 8 of the Convention

As regards the applicant's complaint that the prison authorities interfered with his right to respect for family life, right of access to a telephone and right to correspondence, the Chamber concluded that, in the absence of specific proof to the contrary, his allegations were unsubstantiated. There was therefore no violation of Article 8 of the Convention.

Remedies

The Chamber ordered the Republika Srpska to pay to the applicant the sum of KM 3,000 as compensation for non-pecuniary damage. The Chamber dismissed the remainder of the applicant's claims for compensation.

Decision adopted 11 October 2002
Decision delivered 8 November 2002


DECISION ON REQUEST FOR REVIEW

The applicant submitted a request for review in which he argued that (a) the delegation of jurisdictional competence of the Court of First Instance in Srpsko Sarajevo to the Court of First Instance in Sokolac was not in accordance with law and the argument that there were insufficient judges at the Court of First Instance in Srpsko Sarajevo is false; (b) transferring him to the Pre-trial Section of the District Prison in Bijeljina violated his right to respect for family life as guaranteed under Article 8 of the Convention; (c) the Chamber failed to adequately consider his complaint concerning discrimination in that his complaint did not refer to his Serb origin, but the manner in which he was treated by the authorities of the Republika Srpska was in violation of domestic law and therefore amounted to discrimination; and (d) the compensation awarded by the Chamber is insufficient. The Chamber considered that the applicant had failed to give any grounds as to why the issues referred to in the request for review would raise "a serious question affecting the interpretation or application of the Agreement or a serious issue of general importance". As the request for review failed to meet the conditions set forth in Rule 64 paragraph 2 of its Rules of Procedure, the Chamber decided to reject the request for review.

Decision adopted 11 January 2003