Provisional detention for 3.5 years and a non-expedited trial before a court in order to determine its legality. Violation of the ECHR
JUDGMENT
Radonjić and Romić v. Serbia 04.04.2023 (app. no. 43674/16)
SUMMARY
The case concerned three applicants, the first of whom is a transgender parent (A.H.), who
complained that the civil registration authorities had refused to record the first applicant in the
register of births as mother of the third applicant (L.D.H.) on the grounds that A.H. had not given
birth to the child – to whom G.H. (the second applicant) had given birth – who had in fact been
conceived with A.H.’s sperm.
The Court found that, in line with the intention of the German legislature, the former gender and
former forename of a transgender parent had to be indicated not only where the birth had taken
place before the recognition of the parent’s gender change had become final but also where, as in
the present case, the child had been conceived or born after the gender reclassification.
Having regard to the fact that the first applicant (A.H.) was the parent of the third applicant (L.D.H.)
had not been called into question, and there were few scenarios where the first applicant’s
transgender identity could be revealed upon presentation of the child’s birth certificate (on which
she was recorded as father), also taking account of the discretion (“margin of appreciation”)
afforded to the respondent State, the Court found that the German courts had struck a fair balance
between the rights of the first and second applicants (A.H. and G.H.), the interests of the third
applicant (L.D.H.), considerations as to the child’s welfare and the public interests at stake.
PROVISIONS
Article 5 par. 3
Article 5 par. 4
PRINCIPAL FACTS
The applicants, Milan Radonjić and Ratko Romić, are Serbian nationals who were born in 1959 and
1963 respectively and live in Belgrade. They are former secret-police officers.
In 1999 Slavko Ćuruvija, an influential Serbian journalist and newspaper publisher, was shot in the
back. One motive was thought to be Mr Ćuruvija’s public criticism of Slobodan Miloševic’s policies.
His murder led to an international outcry.
In January 2013 the Serbian Government set up a commission to investigate murders of journalists.
The commission launched a public awareness campaign and forgotten cases, including that of Slavko
Ćuruvija, attracted widespread attention in the media.
Against this background, on 14 January 2014 the applicants were arrested with two others on
suspicion of the murder of Slavko Ćuruvija. The suspicion was based on extensive evidence obtained
during the investigation, including intercepted communications and witness statements.
The Special Department of the High Court in Belgrade for Organised Crime ordered the applicants’
detention pending trial. Their detention was repeatedly extended until 6 July 2017 when they were
put under house arrest.
The initial grounds for their detention were: the risk of their absconding; the risk of them exerting
pressure on witnesses (a number of whom were the applicants’ former colleagues); and the need to
preserve public order given the potentially strong reaction in Serbia and abroad if they were
released. From 19 June 2014 the courts decided to base their detention only on the nature and
gravity of the charges, associated with the possibility of a public disturbance if the applicants were
released.
The applicants lodged appeals with the Constitutional Court, which gave a number of decisions
concerning the ordering and extending of their detention. In particular, as concerned one of their
appeals – of 28 May 2015 – it held, in a decision adopted on 21 December 2017, that the applicants’
detention had been justified up until 3 April 2015, but that it had not been shown that their release
would have disturbed public order after that date (and up until 6 July 2017 when they had been
placed under house arrest). Their claims for damages were dismissed.
The applicants were found guilty of aggravated murder in 2019. Mr Radonjić was sentenced to
30 years’ imprisonment, while Mr Romić was sentenced to 20 years’ imprisonment. The proceedings
are currently still pending on appeal.
THE DECISION OF THE COURT…
The Court found that, overall, the national courts had carried out a detailed assessment of all the
relevant circumstances, at regular intervals, and had addressed specific concerns related to the
applicants’ continued detention. They had adjusted their reasoning over the passage of time to
reflect the developing situation and to verify whether the grounds for detention had remained valid.
Furthermore, the Court agreed with the Constitutional Court that the justification for the applicants’
detention after 3 April 2015, notably to avoid public disorder, had not been made out.
Although the courts had therefore acknowledged a breach of the applicants’ rights for part of their
detention on remand (from 3 April 2015 to 6 July 2017), the Court noted that they had not been
awarded any compensation. Accordingly, it refused to dismiss the case for lack of victim status, and
held that there had been a violation of Article 5 § 3.
Article 5 § 4
The Court found that the proceedings before the Constitutional Court had amounted to more than
two years, notably from 28 May 2015 – the date of the applicants’ appeal – until 10 January 2018 –
the date on which the decision was communicated to the applicants.
There were no exceptional circumstances to justify a constitutional review lasting two years for
issues which were relatively straightforward. Nor could the court’s excessive workload justify the
excessively long procedure in the applicants’ case.
It considered that the two years taken to rule on the lawfulness of the applicants’ detention could
not be regarded as “speedy”, in violation of Article 5 § 4.
Article 41 (just satisfaction)
The Court held that Serbia was to pay the applicants 1,000 euros (EUR) each in respect of nonpecuniary damage.
