SECOND SECTION
CASE OF
OTAŠEVIĆ v. SERBIA
(Application no.
32198/07)
JUDGMENT
STRASBOURG
5 February 2013
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Otašević v. Serbia,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Peer Lorenzen,
Dragoljub Popović,
András Sajó,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Françoise Elens-Passos, Deputy Section
Registrar,
Having deliberated in private on 15 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
32198/07) against the Republic of Serbia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Serbian national, Mr Radojica Otašević (“the
applicant”), on 22 June 2007.
The applicant was represented by two lawyers
practising in Novi Sad, Mr M. Đukić and
Mr R. Marinković. The Serbian Government (“the Government”) were
represented by their Agent, Mr S. Carić.
The applicant alleged, in particular, that he had
been ill-treated by the police and that there had been no effective
investigation in that regard. He relied on Articles 3 and 13 of the Convention.
On 30 August 2010 the application was
communicated to the Government. It was also decided to rule on the admissibility
and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1934 and lives in Sombor,
Serbia.
On 13 August 2003 the applicant,
an animal welfare activist, joined in a rescue operation of stray dogs from a
dog pound in Sombor. Following a fight between the applicant and M.M., the
police arrested the applicant. He spent the night at the Sombor Police Station.
On 14 August 2003 the police lodged a criminal
complaint against the applicant accusing him of causing actual bodily harm to
M.M. The applicant was taken to the investigating judge. He complained that he
had been kicked and punched at the Sombor Police Station. The judge recorded
injuries on the left auricle and left eye, but took no action in that regard.
The applicant was then released. Later that day he obtained a medical
certificate indicating injuries on his left auricle and left eye.
On 27 August 2003 the applicant lodged a criminal
complaint against L.J. and another, unidentified, police officer who had been
on duty at the material time (it later turned out that it was Z.K.).
On 29 August 2003 the public prosecutor directed
the Sombor Police Station to take statements from the applicant and the police officers
who had been on duty on the night of 13/14 August 2003. On 11 September 2003 one
of the officers belonging to that unit questioned the applicant. The applicant
repeated what he had said to the investigating judge on 14 August 2003. On the
same day, L.J., Z.K. and three other police officers from their unit made
written statements. They stated that the applicant had been offensive but that
no force had been used against him.
On 13 October 2003 the investigating judge took
statements from the applicant, L.J., Z.K. and four other police officers from
their unit. They all repeated what they had stated on 11 September 2003. No
questions were put to them. On 21 October 2003 the investigating judge heard a medical
expert who stated that the applicant’s injuries had most likely been caused by
three punches. The investigating judge again did not put any questions.
On 4 November 2003 the public prosecutor decided
not to prosecute as there remained uncertainty as to whether the applicant had
sustained his injuries during the fight between him and M.M. or at the police
station.
On 14 November 2003 the applicant notified the
Sombor Municipal Court that he intended to take over the prosecution, but he formally
started a subsidiary prosecution against L.J. and Z.K., by lodging a bill of indictment,
on 13 April 2004.
The Sombor Municipal Court held four hearings in
this case: on 12 January 2005, 27 May 2005, 17 October 2005 and 1 February
2006. It heard the applicant, the defendants, seven other officers from their
unit, a medical expert, M.M. and seven other witnesses. One of the defendants
and several other police officers from his unit maintained that the applicant
had arrived at the station with facial injuries. In contrast, M.M. and several witnesses
to his fight with the applicant stated that no injuries had been sustained by
the applicant during that fight.
On 1 February 2006 the Sombor Municipal Court acquitted
L.J. and Z.K. as there remained uncertainty as to whether the applicant had
sustained his injuries during the fight between him and M.M. or at the police
station. On 29 December 2006 the Sombor District Court upheld that judgment.
On 24 June 2008 the Sombor Municipal Court found
the applicant guilty of causing actual bodily harm to M.M. The applicant
appealed and on 30 September 2009 the criminal proceedings against him were discontinued
as statute-barred.
No prosecution was instituted against M.M. with
regard to the facial injuries allegedly sustained by the applicant during the
fight between them.
II. RELEVANT DOMESTIC LAW
The Criminal Code 1977 (Official Gazette of the Socialist
Republic of Serbia nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89,
42/89, Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91,
75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02,
80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. The
relevant Article reads as follows:
Article 66 (Ill-treatment by public officials acting in an
official capacity)
“Whoever acting in an official capacity ill-treats or insults another
or otherwise treats such person in a humiliating and degrading manner, shall be
punished with imprisonment of from three months to three years.”
The Code of Criminal Procedure 2001 (Official
Gazette of the FRY nos. 70/01 and 68/02, Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09, 72/09 and 76/10) has been in
force since 28 March 2002. Most criminal offences (including ill-treatment
by public officials acting in an official capacity) are subject to public
prosecution, but some minor offences are only subject to private prosecution. Pursuant
to Article 20 of the Code, the public prosecutor must prosecute when there is
sufficient evidence that a person has committed a criminal offence which is
subject to public prosecution. Article 61 of the Code provides that when the
public prosecutor decides not to prosecute such an offence because of a lack of
evidence, the victim of the offence may start a subsidiary prosecution within
eight days from the notification of the public prosecutor’s decision.
The current Police Powers Ordinance has been in
force since 5 July 2006 (Pravilnik o policijskim ovlašćenjima,
Official Gazette of the Republic of Serbia no. 54/06). It introduced for the
first time the requirement that any visible injuries must be recorded when
placing someone in police custody (see section 30 of that Ordinance). There was
no such a requirement before.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that he had been punched
and kicked at the Sombor Police Station on 13 August 2003. He also complained
of a lack of an effective investigation into his ill-treatment. Article 3 reads
as follows:
“No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”
A. Alleged ill-treatment of the applicant at the
Sombor Police Station (the substantive aspect of Article 3 of the Convention)
The Government maintained that the applicant
should have claimed damages in the civil courts and invited the Court to
declare this complaint inadmissible on non-exhaustion grounds. The applicant
disagreed.
Pursuant to the
general rules of international law (notably, Article 28 of the Vienna
Convention on the Law of Treaties), the Convention does not bind a Contracting
Party in relation to any act or fact which took place or any situation which
ceased to exist before its entry into force with respect to that Party (see Blečić
v. Croatia [GC], no. 59532/00, § 70, ECHR 2006-III). In view of the
fact that the alleged ill-treatment occurred in 2003, whereas the Convention
entered into force in respect of Serbia on 3 March 2004, the Court lacks
temporal jurisdiction to deal with this complaint. Accordingly, this complaint must be rejected pursuant to Article 35 §§ 3 (a)
and 4 of the Convention. It is therefore not necessary to decide whether
this complaint is also inadmissible on non-exhaustion grounds, as argued by the
Government.
B. Official investigation into the alleged
ill-treatment of the applicant (the procedural aspect of Article 3 of the
Convention)
1. Admissibility
While recognising that the obligation to
investigate has evolved into a separate and autonomous duty, capable of binding
a State even when an alleged ill-treatment took place before the entry into
force of the Convention with respect to that State (see Stanimirović v.
Serbia, no. 26088/06, § 28,
18 October 2011), the Government submitted that the Court nonetheless
lacked temporal jurisdiction to deal with the procedural aspect of Article 3
in the present case because the public prosecution had ended in November 2003
and only a prosecution pursued by the applicant had continued after the entry
into force of the Convention with respect to Serbia. The applicant disagreed.
Pursuant to the well-established
case-law of the Court, a Contracting Party has an obligation to carry out an
effective official investigation into all credible allegations of ill-treatment
suffered at the hands of State officials, regardless of whether the alleged
ill-treatment took place before or after the ratification of the Convention by
that State. However, where the alleged
ill-treatment occurred before ratification, only procedural acts or omissions
occurring after that date can fall within the Court’s temporal jurisdiction. In
addition, it is necessary that a significant proportion of the procedural steps
required by the Convention have been, or should have been, carried out after
ratification (see Stanimirović, cited above, §§
28 and 39, and the authorities cited therein).
The Court has also held that while
victims are not required to pursue the prosecution of officers accused of
ill-treatment on their own, this being a duty of the public prosecutor who is
better equipped in that respect (Stojnšek v. Slovenia, no. 1926/03, § 79, 23 June 2009), if an applicant nonetheless
takes over the prosecution and obtains a trial against officers accused of ill-treatment,
those proceedings become an inherent part of the case and must be taken into
account (see V.D. v. Croatia, no. 15526/10, § 53, 8 November 2011, and Butolen v. Slovenia, no. 41356/08, § 70, 26 April
2012).
In the present
case, in November 2003 (that is, before the ratification of the Convention by
Serbia) the public prosecutor decided not to prosecute the officers accused by the
applicant of ill-treatment. Shortly thereafter, the applicant notified the
competent criminal court that he intended to take over the prosecution and on
13 April 2004 (that is, after the ratification of the Convention by Serbia)
lodged a bill of indictment against those officers. A trial then took place before
two instances; it lasted until December 2006. In line with the jurisprudence
set out above, the Court takes those proceedings into account and finds that it
has jurisdiction to deal with this complaint in so far as
it concerns procedural acts or omissions occurring
after ratification (see, among many other authorities, Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009; Tuna
v. Turkey, no. 22339/03, 19 January 2010; Association 21 December 1989 and Others v. Romania, nos. 33810/07 and 18817/08, 24 May
2011; and Mladenović v. Serbia, no. 1099/08, 22 May 2012). The Court therefore dismisses the
Government’s objection.
Since the complaint concerning the procedural
aspect of Article 3 is neither manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention nor inadmissible on any other
grounds, it must be declared admissible.
2. Merits
The applicant criticised, in general terms, the
reaction of the Serbian authorities to his allegation of ill-treatment by the
police.
The Government maintained that the investigation
carried out in the present case had met the requirements of the procedural
aspect of Article 3 of the Convention. In this connection they emphasised
that, unlike in İlhan v. Turkey [GC], no. 22277/93, ECHR 2000-VII,
the Serbian authorities had heard not only the accused officers but also the
applicant, a medical expert and several eye witnesses. The Government further
referred to a 2009 report of the Commissioner for Human Rights, Thomas
Hammarberg, on his visit to Serbia according to which ill-treatment by the police
had decreased since 2004 (document no. CommDH(2009)8 of 11 March 2009, § 66).
The Court reiterates that where a person makes a
credible assertion that he has suffered treatment contrary to
Article 3 of the Convention at the hands of State officials,
that provision, read in conjunction with the general duty under Article 1 of
the Convention, requires by implication that there should be an effective
official investigation (see, among many authorities, Labita v. Italy [GC],
no. 26772/95, § 131, ECHR 2000-IV). Whatever the method of investigation,
the authorities must act as soon as an official complaint has been lodged. Even
when strictly speaking no complaint has been made, an investigation must be
started if there are sufficiently clear indications that ill-treatment has been
used. The authorities must take into account the particularly vulnerable
situation of victims and the fact that people who have been subjected to
serious ill-treatment will often be less ready or willing to make a complaint
(see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 133,
ECHR 2004-IV, and the authorities cited therein).
The Court has also held that the investigation
should be capable of leading to the identification and punishment of those
responsible. If not, the general legal prohibition of torture and inhuman and
degrading treatment and punishment would, despite its fundamental importance,
be ineffective in practice and it would be possible in some cases for State
agents to abuse the rights of those within their control with virtual impunity
(see Labita, cited above, § 131).
The investigation must also be thorough: the authorities must always make a
serious attempt to find out what happened and should not rely on hasty or ill-founded
conclusions to close their investigation or as the basis of their decisions.
Furthermore, the investigation must be prompt and independent. The
investigation lacks independence where members of the same unit as those
implicated in the alleged ill-treatment undertook the investigation (Mikheyev
v. Russia, no. 77617/01, §§ 108-110, 26 January 2006). Lastly, the
investigation must afford a sufficient element of public scrutiny to secure
accountability. While the degree of public scrutiny required may vary, the
complainant must be afforded effective access to the investigatory procedure in
all cases (Batı and Others, cited above, § 137).
In the present case, the Court considers
that the medical evidence and the applicant’s complaints submitted to the
competent domestic authorities raised an arguable claim that his injuries could
have been caused by the police. It is true that the applicant’s injuries were
not very serious (see Ilieva and Georgieva v. Bulgaria (dec.), no. 9548/07,
17 April 2012, in which the Court held that comparable injuries inflicted upon
the applicants by private individuals were not capable of triggering the State’s
procedural obligation to conduct an official investigation). However, the
threshold is lower in the case of an arguable claim that injuries have been inflicted
upon a detained person by State officials: the Court has held that, in respect
of a person deprived of his liberty, any recourse to physical force which has
not been made strictly necessary by his own conduct diminishes human dignity
and is in principle an infringement of the right set forth in Article 3 of the
Convention (see, among other authorities, Ribitsch v. Austria, 4
December 1995, § 38, Series A no. 336; Rivas v. France, no. 59584/00, § 37,
1 April 2004; and Toteva v. Bulgaria, no. 42027/98, § 55, 19 May 2004).
In view of that, the Serbian authorities were under a duty to ensure that the
proceedings instituted with regard to the applicant’s alleged ill-treatment by
the police complied with the standards imposed by the procedural aspect of
Article 3.
The Court notes that shortly after receiving the
applicant’s criminal complaint, the public prosecutor obtained statements from
the applicant and police officers who had been on duty on the critical night.
However, those statements were taken by the unit which had been involved in the
alleged ill-treatment of the applicant and which therefore lacked independence (see,
by analogy, Ramsahai and Others v. the Netherlands [GC], no. 52391/99,
§ 335, ECHR 2007-II, concerning the obligation to investigate under
Article 2; Bursuc v. Romania, no. 42066/98, § 104, 12 October 2004, concerning
the obligation to investigate under Article 3; and the
CPT standards,
document no. CPT/Inf/E (2002) 1 - Rev. 2011, p. 97). Furthermore, while
it is true that the applicant, the defendants, four other police officers and a
medical expert were later heard by the investigating judge, no questions were
put to them. There are therefore no indications that the
investigating judge was prepared to scrutinise the police’s account of the
incident (see Matko v. Slovenia, no. 43393/98, § 90, 2 November
2006). It is nevertheless the case that the Court is only competent ratione temporis to look at
the period after the entry into force of the Convention in respect of Serbia on
3 March 2004, while taking into consideration
the state of the case at that date (compare Palić v. Bosnia and Herzegovina, no. 4704/04, § 70,
15 February 2011).
As to the post-ratification
period, it is noted that the applicant lodged a bill of
indictment against the defendants in April 2004. During the ensuing
trial the applicant, the defendants and many witnesses were examined. Some key
witnesses for the defence were also cross-examined by the applicant. The Court
is satisfied with the diligence displayed by the trial court in trying to
establish whether the applicant had sustained his injuries during his fight with
M.M., as claimed by the defendants, or at the police station, as claimed by the
applicant (see Berliński v. Poland, nos. 27715/95 and 30209/96, §§ 68-71,
20 June 2002). The fact that the defendants were eventually acquitted is not sufficient
in itself to find a breach of Article 3 of the Convention. The procedural
obligation under Article 3 is not an obligation of result, but of means; not
every investigation must be successful or come to a conclusion which coincides
with the claimant’s account of events (see, among many authorities, Vladimir
Fedorov v. Russia, no. 19223/04, § 67,
30 July 2009, and Denis Vasilyev v.
Russia, no. 32704/04, § 100, 17 December 2009).
. The Court also notes that the
criminal court rendered a judgment less than two years after the applicant had formally
started the prosecution. That judgment was upheld by the competent second-instance
court in less than a year. Therefore, the criminal trial can be considered to have been conducted with reasonable
promptness and expedition.
36. Lastly,
the applicant did not indicate, let alone substantiate, that the criminal court
lacked independence or that the trial lacked transparency.
The foregoing considerations are sufficient to
enable the Court to conclude that the post-ratification part of the domestic criminal
proceedings met the Convention requirements. There has accordingly been no
violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant complained under Article 13 that he
had not had an “effective remedy before a national authority” for his complaint
about the alleged ill-treatment at the Sombor Police Station. Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
The Government contested that argument.
The Court notes that the complaint about the
alleged ill-treatment of the applicant at the police station has been declared incompatible
ratione-temporis with the provisions of the Convention in paragraph
22 above. Even assuming that the complaint under Article 13 taken in
conjunction with that complaint is not likewise incompatible ratione temporis,
it is manifestly ill-founded for the reasons set out in paragraphs 34-36 above. It must therefore
be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under the
procedural aspect of Article 3 of the Convention admissible and the remainder
of the application inadmissible;
2. Holds that there has been no violation of
Article 3 of the Convention.
Done in English, and notified in writing on 5 February 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Guido
Raimondi
Deputy Registrar President
