Application no. 10843/04
by Slaviša DURLIĆ
against Serbia and Montenegro
The European Court of Human Rights (Second Section), sitting on 30 August 2005 as a Chamber composed of:
Mr J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 23 February 2004,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
The applicant, Mr Slaviša Durlić, is a Serbo-Montenegrin national, who was born in 1958 and lives in Rudna Glava, Serbia and Montenegro. He is represented before the Court by Mr Borovoje Borović, a lawyer practising in Belgrade.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 June 1995 the Zaječar District Court (hereinafter “the district court”) convicted the applicant of attempted murder and of possessing unlicensed weapons. He was sentenced to 14 months in prison less the period already spent in pre-trial detention (2 months and 20 days).
On 25 February 1999 the Supreme Court upheld that judgment.
On 19 March 2001 the district court reduced the applicant’s sentence by 2 months and 5 days, in accordance with sections 1 § 2 and 5 § 2 of the Amnesty Act of the Republic of Serbia (“Zakon o amnestiji, published in the Official Gazette of the Republic of Serbia no. 10/01”).
On an unspecified date the applicant addressed the Majdanpek Municipal Court (hereinafter “the municipal court”) pursuant to section 39 of the Enforcement of Criminal Sanctions Act 1997, asking that his committal to prison be postponed on the ground of his poor mental health.
On 23 July 2002 the applicant also filed an application with the district court pursuant to section 190 of the Criminal Procedure Code 2001, asking that he be excused completely from serving his sentence on the same ground.
On 19 February 2003 the municipal court sent a letter to the district court asking it about the result of the applicant’s application.
On 6 March 2003 the district court responded to the municipal court that it was not intending to give any decision. It recommended that the applicant be committed to prison without delay. It also explained that, once in prison, he could apply to the prison governor for release.
On 9 July 2003 the municipal court heard the evidence of an expert. The expert submitted that the applicant had been treated for depression from time to time since 1987. His depression was diagnosed as chronic in 2001 and he had also developed paranoid ideas and suicidal tendencies. The expert thus recommended that the applicant not be committed to prison.
On the same date the municipal court sent another letter to the district court which stated that, according to the views of the judges of the Supreme Court expressed at a meeting attended by them, a person suffering from a chronic mental disease could not be committed to prison. It also asserted that, according to the same source, the district court had an obligation to adopt a formal decision.
The district court also heard two experts. The first, whose report is dated 29 July 2003, stated that the applicant did not have any pathological symptoms or suicidal or paranoid ideas and that his intelligence was above average. The second expert, however, heard by the court on 1 August 2003, diagnosed the applicant’s state as depression accompanied by paranoid ideas and held that prison conditions might have a detrimental effect on his health. The district court again failed to issue a formal decision.
On 23 October 2003 the municipal court asked the Supreme Court for its opinion about the case. The municipal court again expressed its doubts as to whether the applicant could be lawfully committed to prison. It would appear that the Supreme Court did not respond.
On 7 November 2003 the municipal court adopted a decision committing the applicant to prison. On 10 December 2003 the Negotin District Court upheld that decision.
On 10 February 2004 the applicant commenced serving his sentence.
The Government submits that while in prison the applicant was examined by different doctors on 12 separate occasions and provided with the required medication. However, it is also submitted that he showed no signs of mental health problems and never complained in this respect to the prison staff or indeed the President of the district court who visited the institution.
On 6 August 2004 the applicant was released on parole.
B. Relevant domestic law
1. Criminal Procedure Code 2001 (Zakonik o krivičnom postupku; published in Official Gazette of Federal Republic of Yugoslavia – OG FRY – no. 70/2001; amendments published in OG FRY no. 68/2002)
Section 190 of this Code provides as follows:
“1. If doubts arise regarding the permissibility of enforcing a court’s decision or fixing punishment, or if a final judgment fails to include the time spent in detention or served under an earlier sentence, or if calculations are erroneous, the president of the panel at first instance shall decide on these issues by a separate ruling. The appeal shall not stay the execution of the ruling, unless the court decides otherwise.
2. If doubts arise regarding the interpretation of a court’s decision, the president of the panel which rendered the final decision shall decide.”
2. Enforcement of Criminal Sanctions Act 1997 (Zakon o izvršenju krivičnih sankcija; published in Official Gazette of Republic of Serbia – OG RS – no. 16/97; amendments published in OG RS no. 34/2001)
The relevant part of section 39 of this Act provides as follows:
“Execution of a prison sentence may be postponed:
1. if a convicted person suffers from a severe illness of short duration and for as long as it lasts;
The president of a competent municipal court decides whether to postpone the execution of a criminal sanction upon the application of a convicted person (section 42 of the Act).
When the execution of a criminal sanction has been postponed owing to a convicted person’s suffering from a severe illness of short duration, the convicted person is under an obligation to submit a medical report every three months, unless requested by the court to do so more often (section 46 of the Act).
If a prisoner cannot receive adequate medical treatment in prison, he or she will be committed to a prison hospital, a psychiatric institution or another health-service institution (section 90 of the Act).
The prison governor may release a prisoner for reasons indicated in section 39 (section 107 of the Act).
The applicant complained that his mental health would deteriorate in prison. He also complained about the lawfulness of his detention. He did not invoke any specific provision of the Convention.
On 1 July 2004 the Court decided that notice of the application should be given to the respondent Government and that the Government should be invited to submit written observations on the admissibility and the merits of the applicant’s complaints.
On 5 November 2004 the Government’s observations were transmitted to the applicant’s legal representative who was invited to submit his client’s observations by 17 December 2004.
Having received no reply, by a registered letter of 19 January 2005, the Court reminded the applicant’s representative that the observations had not been submitted and that no extension of the time-limit had been requested. He was also warned, in accordance with Article 37 § 1 (a) of the Convention, that the Court might strike a case out of its list of cases where it concluded that the applicant did not intend to pursue the application. This letter was received in the applicant’s representative’s office on 26 January 2005 but again there was no response.
Finally, by a registered letter dated 4 April 2005, the Court informed the applicant directly that his representative had been invited to respond to the Government’s written observations by 17 December 2004 but that he had not done so. The applicant himself was therefore asked to inform the Court whether or not he intended to pursue the application by 15 May 2005. He was also warned of the possible consequences of his failure to do so in terms of Article 37 § 1 (a) of the Convention. A copy of this letter was sent to the applicant’s representative. Although both the applicant and his representative’s office received the said letter on 12 April 2005 and 14 April 2005, respectively, neither has replied.
In view of the above and having regard to Article 37 § 1 (a) of the Convention, the Court considers that the applicant does not intend to pursue the application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which would require the examination of the application to be continued.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
S. Dollé J.-P. costa
DURLIĆ v. SERBIA AND MONTENEGRO DECISION
DURLIĆ v. SERBIA AND MONTENEGRO DECISION