Serbia

This group of cases concerns the ineffective investigations into the allegations of ill-treatment by police officers (procedural violations of Article 3), and ill-treatment by police officers during questioning (substantive violation of Article 3 in Zličić and Lakatoš and Others). It also concerns unfairness of the criminal proceedings on account of the admission of confession statements obtained as a result of police brutality (Article 6 in Lakatoš and Others). Issues concerning the violation of the right to liberty (violations of Article 5 §§ 3 and 4) raised in Stevan Petrović are examined in the context of the Kovač group of cases.

The authorities indicated that in Almaši, Zličić, and Stevan Petrović, the competent public prosecutors, either ex officio or after criminal complaints submitted by the applicants, established that there was no legal possibility to launch fresh investigations, as the prosecutions in these cases had all become time barred. The authorities recalled the steps taken since 2013 to prevent future violations under this limb, notably the issuing by the Chief Public Prosecutor in 2017 of the Methodology for Investigating Cases of Ill-Treatment by the Police (“2017 Methodology”). They also provided statistical data regarding the application of the criminal offences of Extortion of Confession and Ill-treatment and Torture (Articles 136 and 137 of the Criminal Code respectively) for the period 2018-2023. Moreover, the authorities provided information on disciplinary sanctions (ranging from warnings, to fines, to prohibitions of promotion) imposed on police officers in 2020 and 2022 for serious breach of duty and irregular and unjustified use of means of coercion.

In March 2024 the Supreme Public Prosecutor issued a General Mandatory Instruction, providing that a contact person (a prosecutor) would be assigned in all basic public prosecutor’s offices to handle criminal cases involving the offences of Extortion of Confession and Ill-treatment and Torture. This person will be responsible for, inter alia, prioritising all evidentiary actions and measures in these cases; coordinating with the Sector for Internal Control of the Ministry of Interior; and participating in specialised training and expert meetings on this topic.  The authorities also noted that they continued with training and targeted awareness-raising measures with a view to ensuring effective investigations. In 2023, 145 individuals (including judges, public prosecutors and police officers) attended seminars on conduct of investigations in cases of police abuse.

In the latest report (CPT/Inf(2024)04), the CPT expressed concern about the  government’s lack of effective action to implement previous recommendations as regards combating ill-treatment by police officers,[5] and noted with regret that the strategy to eradicate ill-treatment by the police has not been drawn up by the Serbian authorities, so that the efforts made by the authorities to combat this phenomenon have been partial, fragmentary and lacking conviction.

In a broad sense it is rule of law related since it shows also indirectly  the weakness of the domestic judicial system to grant redress in such cases. But, agree if the decision is not to include it. Same for below.

These cases concern violations of the applicants’ right of access to a court and the peaceful enjoyment of their property due to non-enforcement or delayed enforcement of domestic judicial decisions given in the applicants’ favour against socially/State-owned companies ordering them to pay their debts for salary arrears or their commercial debts (violations of Article 6 § 1 and Article 1 of Protocol No. 1).  In 31 outstanding cases concerning friendly settlements, the Government undertook to pay the applicants certain amounts (in respect of non-pecuniary damage and/or costs of proceedings) and to ensure the enforcement of the relevant domestic decisions. Lastly, the case of Kostić concerns the municipal authorities’ failure to enforce an administrative demolition order issued by the Inspectorate of the Voždovac Municipality concerning an unauthorised construction, rendered in the applicants’ favour (violation of Article 1 of Protocol No. 1).

The issues had not been still adequately addressed by the authorities, as many new similar applications continued to be lodged before the European Court and a series of problems were reported to the Committee of Ministers in the functioning of those remedies when it came to ensuring timely enforcement of the decisions at issue.

This case concerns a violation of the applicant’s right to respect for her family life on account of the respondent State’s continuing failure to provide her with credible information as to the fate of her son, who allegedly died three days after his birth in a maternity ward in 1983. She has never been given his body or informed of where he is allegedly buried. In addition, his death has never been properly investigated or officially recorded (violation of Article 8).

The Court noted that hundreds of parents whose newborn babies had “gone missing” following their alleged deaths in hospital wards between the 1970s and the 1990s applied to the Serbian Parliament seeking redress (Zorica Jovanović, §26). In view of such significant numbers of potential applicants, the Court held that “the respondent State must, within one year from the date on which the present judgment becomes final [i.e. by 9 September 2014] take all appropriate measures, preferably by means of a lex specialis… to secure the establishment of a mechanism aimed at providing individual redress to all parents in a situation such as, or sufficiently similar to, the applicant’s”. According to the Court, “[t]his mechanism should be supervised by an independent body, with adequate powers, which would be capable of providing credible answers regarding the fate of each child and affording adequate compensation as appropriate”. At the same time, the European Court decided to adjourn for one year the examination of all similar applications pending the adoption of the general measures at issue (Zorica Jovanović, §§ 92-93).

The just satisfaction awarded by the European Court to the applicant in respect of non-pecuniary damage was paid within the timeframe. The applicant has not availed herself of the legal avenue provided in the legislation to establish the fate of her son.

The authorities recalled that in response to the Court’s findings, on 29 February 2020, Serbian Parliament adopted the law setting up a two-track fact-finding system, first providing individual redress to parents of “missing babies” through courts, and second establishing an independent investigation mechanism (“Missing Babies Fact-Finding Commission”) to establish the fate of “missing babies”. Moreover, the law enables the possibility to conduct parallel proceedings before the competent domestic courts and before the public prosecutors if during the procedure the court finds out about the existence of grounds for suspicion that a criminal act, prosecuted ex officio, has been committed, and is obliged to immediately file a criminal complaint with the competent public prosecutor.The law was prepared taking into account the Committee’s indications and observations made by civil society organisations and parents of “missing babies”.  The authorities furthermore indicated that pursuant to the current practice, in most cases decisions have been rendered indicating that the status of a missing child cannot be established. These decisions, established deficiencies, inconsistencies and dissents in the relevant documents, which deficiencies are such that the status of the child cannot be determined with certainty. In particular, it could not be established whether the child passed away or has been missing. According to the relevant information from the cases available, the authorities noted that all the competent courts have awarded just damages in the maximum amount prescribed by law (EUR 10.000), where the court accepted the applicant’s motion or the court issued a decision concluding that the status of the missing new-born could not be determined.

This case concerns a violation of the applicant’s right to respect for his private life on account of the domestic courts’ refusal to reopen the time-barred paternity proceedings of 1971-1972, when the applicant was a minor (violation of Article 8).

The European Court noted that establishing the identity of one’s biological father is a vital interest protected by the Convention and one which does not disappear with age and that domestic law did not allow for the relevant elements of the applicant’s specific situation to be taken into account or for a balancing of the relevant interests to be carried out (§54). It added that the preservation of legal certainty cannot suffice in itself as a ground for depriving the applicant of the right to ascertain his parentage (§55).

In their action plan dated 8 February 2024, the authorities indicated that the applicant’s request for the reopening of the impugned proceedings was granted. In the reopened proceedings, the Zrenjanin Higher Court ordered expert testimony on the question of paternity via exhumation and DNA analysis. The analysis showed that the samples did not match. As a result, on 14 September 2023, the Higher Court in Zrenjanin issued a judgment, concluding that the late Lj. B. was not the biological father of the applicant.

General measures: The European Court’s judgment was translated, published in the Official Gazette and disseminated to the courts throughout the respondent State. A proposal for the amendment of the Code of Civil Procedure (articles 426 §1 and 428 §§ 1(6) and 3)g was drafted and would, once adopted, be capable of preventing similar violations. Further information is awaited regarding the legislative process.