Background
During the COVID-19 protest wave that swept Belgrade in July 2020, Serbian national Jovan Iskrenović was arrested on Kralja Aleksandra Boulevard and charged with insulting police officers in the performance of their duties — a minor offence under Article 22 of Serbia’s Public Order Act carrying a potential 30–60 day custodial sentence. The police alleged he directed a series of offensive remarks at a patrol before fleeing; Iskrenović denied it, saying he had been walking peacefully with an Anonymous (Guy Fawkes) mask resting on the back of his head and that he ran only because he did not recognise who was shouting at him to stop.
In the ensuing minor-offence proceedings, Iskrenović twice requested that the court obtain surveillance camera footage from nearby premises to establish the spatial layout of the incident — specifically, whether he had even been close enough to the officers to address them. In the second round of first-instance proceedings, he also proposed that a witness, D.B., be heard; D.B. had come forward in response to a public social media call for bystanders and claimed to have been present. The first-instance court rejected both requests on the ground that the facts were “already established” on the basis of the arresting officer’s statement and a face-to-face confrontation. On appeal, the Minor Offences Court of Appeal upheld the conviction, reasoning that cameras capture no audio and therefore could not prove what words were spoken, and that D.B. had not been with the applicant or near the police and so could not testify to what was said.
After the Constitutional Court dismissed his constitutional appeal as raising complaints of a “fourth-instance” nature, Iskrenović applied to the European Court of Human Rights, arguing that the refusal to obtain the footage and hear his witness denied him a fair trial under Article 6 §§ 1 and 3(d) of the Convention. He also complained, under Article 1 of Protocol No. 1, about the fine that had ultimately been converted to a 60-day prison sentence after he failed to pay — a sentence that enforcement proceedings ultimately left unenforced due to expiry of the limitation period.
The Court’s Holding
Applying the three-part test established in Murtazaliyeva v. Russia [GC] (2018), and extending it mutatis mutandis to the request for video evidence, the Court found a violation of Article 6 §§ 1 and 3(d). On the first prong — whether the requests were sufficiently reasoned and relevant — the Court held they were. The proposed witness and footage were sought not to prove the precise words uttered (an aim the domestic courts fixated on) but to illuminate the spatial configuration of the incident: where Iskrenović was standing relative to the officers, whether he could have been seen passing them, and the overall sequence of events. Those were directly relevant to whether the offence could have been committed at all.
On the second prong — whether the domestic courts provided sufficient reasons for the refusal — the Court found they had not. The first-instance court’s dismissal was circular, declaring facts “established” while excluding the very evidence capable of testing that conclusion. The appellate court’s reasoning fared no better: its key premise — that D.B. could not have witnessed relevant events because he had not been with the applicant or near the officers — was an assumption invented by the court, unsupported by anything in the record and never raised by the parties. The defence had not proposed D.B. to prove verbal content but to address positioning and sequence of events. Similarly, even without audio, surveillance footage might have assisted the court in assessing the plausibility of two irreconcilable accounts of events in a public street.
On overall fairness — the third prong — the Court observed that the conviction rested entirely on the arresting officer’s account, with the case turning wholly on whose version of events was more credible. By refusing both an eyewitness who had voluntarily come forward and objective documentary evidence, the domestic courts deprived the defence of any means of effectively challenging the prosecution’s case. The Court rejected Serbia’s argument that the broader COVID-19 protest context and the minor nature of the offence justified a wider margin of appreciation, noting that because all penalties under Serbia’s Minor Offences Act can ultimately be converted to imprisonment, the full rigour of Article 6 applied. The Court declined to rule separately on the Article 1 Protocol No. 1 complaint regarding the fine, having addressed the main legal questions through the Article 6 analysis.
Key Takeaways
- Minor-offence proceedings that can ultimately result in imprisonment — including through conversion of fines — must satisfy the full stringency of Article 6, not a relaxed standard, regardless of the social or public-order context in which the offence occurred.
- A court cannot dismiss defence evidence requests by declaring the facts “already established”: that reasoning is circular and is not a genuine examination of the proposed evidence’s relevance or probative value.
- Proposed defence evidence need not be capable of proving every element of the offence; if it could reasonably shed light on any relevant aspect of the facts — including spatial positioning or the plausibility of competing accounts — it must be substantively assessed before being rejected.
- Courts may not rest a refusal on factual assumptions (here, that a bystander could not have witnessed anything material) that were never examined, argued, or established in the proceedings.
- The Murtazaliyeva three-part test for defence witness requests applies equally, mutatis mutandis, to requests for documentary and video evidence.
- Where a conviction depends entirely on the credibility of a single prosecution witness — here the arresting officer — the refusal of both an alternative witness and objective corroborating evidence is particularly likely to undermine overall fairness.
Why It Matters
This judgment clarifies that the equality-of-arms guarantee under Article 6 demands a genuine, case-specific engagement with defence evidence requests — not boilerplate dismissals or post-hoc rationalizations disconnected from the grounds on which the evidence was actually sought. By explicitly extending the Murtazaliyeva framework to video and documentary evidence, the Court confirms that the analytical rigour required is the same whether a defendant seeks a live witness or surveillance footage. The decision will be directly relevant wherever domestic systems permit compressed or expedited procedures for public-order and minor-offence cases, particularly those arising from protest activity.
The ruling also carries a pointed message about protest-era prosecutions across Council of Europe member states: heightened social tension and emergency public-health contexts do not lower the procedural floor for individuals facing criminal-limb proceedings. Domestic courts that relied on similarly curtailed procedures during the COVID-19 period may face renewed scrutiny, and the case may prompt review of convictions that rested on single-officer testimony without meaningful opportunity for the defence to test it through witnesses or objective evidence.