The European Court of Human Rights (the ‘ECtHR’) held, on 6 February, that an individual’s right to a fair trial under Article 6(1) of the European Convention of Human Rights was violated, as the individual was unable to have their claim examined properly, in both a legal and factual context, domestically in Serbia. Article 6(1) provides for an entitlement to a ‘fair and public hearing’ for individuals in cases relating to their civil rights and duties, or in relation to criminal charges, with emphasis on impartiality of the tribunal and a reasonable period of time.
The claimant suffered severe injuries to his face and hands in 1996, aged 13, from a blasting cap that detonated when he tried to cut it open. This was one of three blasting caps which he found, and they had been left behind from previous armed conflicts. The applicant and his mother had considered submitting a request for the applicant to be recognised as a civilian person that was disabled as a consequence of war in 1999, but they first initiated this in March 2006.
The relevant national legislation on the issue required that to determine this status as a person disabled by war, there needed to be written evidence presented, which dated back to when the injury was sustained. Such a requirement for written evidence is at the crux of this case, as the original police reports from the time of the accident and the other two blasting cups were destroyed during the NATO bombing. Due to the alleged absence of written evidence, the applicant lost their claim at several instances with few appeals allowed. While in 2008, their Supreme Court found that material in the case file from 2006 was satisfactory as written evidence, following decisions with the Administrative Court, First-Instance Municipal Authority, and the Constitutional Court, the applicants claim for recognition of their status as a civilian person that was disabled as a consequence of war continued to be denied. The Constitutional Court did, however, find that there was unreasonable delay, which impugned the individual’s right to a fair trial.
The ECtHR opined that the domestic requirement for written evidence was not a practice that was approached with some flexibility based on the facts of a certain case, rather, it was a specific requirement without exceptions. It did note that the Supreme Court had held that facts could be established using less strict and more general evidentiary rules. The ECtHR also found that neither the applicant nor his parents could be blamed for the inability to establish the origin of the destroyed blasting caps, and that it was unconvincing for the government to contend that they had no legal obligation to establish their origin. There was further found to be no time period limitations that were applicable domestically.
Additionally, the ECtHR was not satisfied with the approach to the police statement from 2006, which had domestically been deemed not admissible. Therefore, the ECtHR held that a closer look should have been taken, and that in the circumstances of the case, there would have been benefits from having an oral hearing with the police officer who wrote the statement, as they potentially could have assisted with details.
Thus, the ECtHR held that the applicant was deprived of an effective right to a fair trial, lacking a reasonable chance to present his claim, which includes an oral hearing that would have not substantially disadvantaged him. This was the extent of the finding however, as the court was not to decide how the outcome should have been, concluding with a finding of a violation of Article 6(1) of the European Convention of Human Rights.
Click here for the judgement in the Case of ĐURIĆ v SERBIA.