LUBARD and MILAN against Serbia
On March 25, 2025, the European Court of Human Rights (hereinafter: the Court) rendered, and on April 29 of the same year, announced its judgment in the caseLubarda and Milanov against Serbia, no. 6570/19 and 43604/19.
It's a verdictbroughto three-member Board.
The case refers to the failure to provide the applicants with the opportunity to cross-examine the witnesses in the misdemeanor proceedings brought against them for traffic violations. The court determined that the possibility of imposing a prison sentence in specific misdemeanor proceedings required the application of stronger guarantees of trial fairness, and that there were not sufficient counterbalancing factors to compensate for the imposed limitation of the applicants' right to defense in the proceedings. |
THE CIRCUMSTANCES CASES
The first applicant was convicted in 2017 for running a red light with a motor vehicle. He was fined 15,000 dinars (around 120 euros at the time),a protective measure prohibiting driving a vehicle for a period of three months and he was given penalty points.
The second applicant was convicted in 2015 for driving a vehicle while fully intoxicated. He was sentenced to a fine of 100,000 dinars (around 850 euros at the time), a protective measure banning him from driving for eight months, and he was given penalty points.
In the sentences of both judgments, it is stated that the fines imposed on the applicants, if they are not paid, will be replaced by a prison sentence of 15 days in the case of the first applicant, or 60 days in the case of the second applicant.
In addition to fines, the Law on Road Traffic Safety prescribed a prison sentence for both misdemeanors.
The misdemeanor appellate court confirmed both first-instance verdicts.
The Constitutional Court rejected the constitutional appeals of the petitioners.
Both applicants signed the records compiled by the police officers at the scene of the offense, but later disputed the content of those records in court. The verdicts against them were based on those records and on the evidence given by the police officers, which was taken in court, but not during the main trial.
The applicants specifically asked to be called to the examination of witnesses - police officers, but this was not done, and in the case of the first applicant due to the efficiency and economy of the procedure, and in the case of the second applicant because the court determined that cross-examination would not lead to a different determination of the facts, because the testimony of the witness was in accordance with the report signed by the second applicant.
COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT
The first applicant submitted a petition to the Court on January 22, 2019, and the second applicant on August 2 of the same year.
In their petitions, the petitioners complained about the violation of the right to a fair trial from Article 6, para. 1. and 3(g) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention), because they were not given the opportunity to cross-examine the witnesses based on whose testimony verdicts were passed against them in misdemeanor proceedings that were conducted against them for traffic violations.
THE DECISION THE COURT
The court pointed out that the case should be examined in terms of two sets of principles - those related to oral hearings, especially in the context of the right to examine and cross-examine witnesses; and those related to the acceptance of unverified incriminating evidence of witnesses in criminal proceedings.
With regard to the first set of principles, the Court accepted that exceptions to the principle of presenting all evidence against the accused at a public hearing in his presence, before passing a guilty verdict, are possible. However, he pointed out that on this occasion the rights of the defense must not be violated, which require that the accused be allowed to challenge and cross-examine the witness against him, either at the moment when the witness gives his testimony, or at a later stage of the proceedings. The court particularly pointed out that the threat of imprisonment in specific misdemeanor proceedings required the application of stronger guarantees otherwise applicable in criminal law.
Regarding the second set of principles, the Court found that the domestic courts gave full credence to the witness statements because they were consistent with the crime scene reports, even though the applicants later retracted their confessions made in those reports. Consequently, the Court found that the applicants' convictions were based on unverified evidence that was decisive for their convictions, and that the applicants' ability to present their version of events during the trial was not a sufficient countervailing factor to compensate for the limitation of their right to defence.
In the end, the court pointed out that the requirements of efficiency and economy in the procedure, under the given circumstances, could not justify interfering with the applicants' right to cross-examine witnesses.
Consequently, the Court established a violation of Article 6, paragraph 1 and 3(g) of the Convention.
FAIRLY SATISFACTION (Article 41 of the Convention)
The court obliged the Republic of Serbia to pay the claimants EUR 1,000.00 in dinar equivalents as compensation for non-material damage, and to pay EUR 2,765.00 in dinar equivalents to the other claimant as compensation for costs and expenses.