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THIRD
SECTION
CASE OF
JASAR v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 69908/01)
JUDGMENT
STRASBOURG
15
February 2007
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 Jasar v. the former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Third Section),
sitting as a Chamber composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr C.
Bîrsan,
Mrs M. Tsatsa-Nikolovska,
Mrs R. Jaeger,
Mr E.
Myjer, judges,
and Mr V. Berger, Section Registrar,
Having
deliberated in private on 19 January 2006 and 25 January 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 69908/01) against the former
Yugoslav Republic of Macedonia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Macedonian national,
Mr Pejrusan Jasar (“the applicant”), on 1 February
2001.
- The
applicant was represented by Ms A. Danka from the European Roma
Rights Centre (“the ERRC”) and Mr J. Madzunarov
(“the Macedonian lawyer”), lawyers practising in
Budapest and Stip, respectively. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- The
applicant alleged that he was ill-treated by police, that no
effective investigation had been carried out and that he had no
effective remedy against the public prosecutor's inactivity.
- By
a decision of 11 April 2006, the Court declared the application
admissible.
- The
parties replied in writing to each other's observations.
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 19 January 2006 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mrs R. Lazareska
Gerovska, Agent,
Mr T. Stojanovski, Expert;
(b) for the applicant
Mrs D. Post,
Counsel,
Mrs A. Danka, Staff Attorney,
Mr J.
Madzunarov, the Macedonian lawyer.
- The
Court heard addresses by Mrs Lazareska Gerovska and Mrs Post and
their answers to questions put by the judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1965 and lives
in Štip, in the former Yugoslav Republic of Macedonia.
1. The incident
(a) The applicant's version of events
- On
16 April 1998, at around 9 p.m., the applicant and his friend F.D.,
both citizens of the former Yugoslav Republic of Macedonia of Roma
ethnic origin, were having a drink in a downtown bar in Štip.
On the other side of the bar, two men were gambling. The man who lost
pulled out a gun, fired several shots into the air and one into the
ground, and asked for his money back. All those in the bar, including
the applicant and his friend, tried to leave, but were ultimately
unable to do so because of the crowd that had already blocked the
exit.
-
In the meantime, five police officers arrived at the scene of the
incident and turned to the applicant and his friend. One of the
police officers caught the applicant by his hair and pushed him
against the police car, while another officer grabbed his friend's
arm and twisted it behind his back. Shortly afterwards, the police
took them to the local police station, where they were locked up in
two separate cells.
-
The applicant maintains that around midnight one of the police
officers concerned came to the cell where he was being held and told
him to bend over. The applicant alleges that the police officer
kicked him in his head, which caused bleeding from his mouth. As he
fell down on the floor, the police officer grabbed him by his hair
and allegedly started hitting him savagely with his fists and a
truncheon. The applicant further maintains that another police
officer, who was allegedly beating his friend in the other cell, came
to his cell later and continued to batter him until 5 a.m. They were
then taken to an office, where they were questioned about the
incident. After drawing up a report, the police released the
applicant and his friend at around 11 a.m. the next day.
-
Following his release, the applicant went to the Emergency Aid Unit
at Štip Hospital and asked for medical
assistance. A medical certificate issued on 17 April 1998 by the
doctor who had examined him indicated that the applicant had
sustained several bodily injuries which were described as slight. In
addition, the certificate stated that the applicant had declared that
he had been beaten at the police station with a truncheon and kicked
all over his body. The medical certificate did not specify the
possible origin of the injuries, their timing or the way in which
they had been inflicted.
-
The applicant submitted an excerpt from a newspaper together with his
statement concerning the incident in which he had made no allegations
of being beaten at the scene in the bar. A photograph of him having a
swollen right eye also appeared in the newspaper.
-
The applicant and his friend have never been charged with any offence
in relation to the incident at issue.
(b) The Government's version of events
-
On 16 April 1998, between 9 and 10 p.m., the applicant and F.D.
arrived at the café bar Lotus. They joined a group watching
people gambling with dice. At around 2 a.m. on 17 April one of the
losing gamblers claimed that the dice had been fixed and demanded his
money back. An argument started in which the applicant and F.D.
participated. When a certain J.N. took out a pistol and fired, F.D.
tackled him and the gun fell on the floor. At about 2.30 a.m. the
police came to the scene after the shooting incident had been
reported to them. Meanwhile, there was a certain disruption inside
the bar, after which some people went outside. The police's
inspection of the scene lasted until 4.30 a.m.
-
The police sought to take M.S., an individual reported to them, into
custody. The applicant and F.D., who had taken the side of M.S. in
the dispute, obstructed the police's efforts, allowing M.S. to
escape. F.D. also assaulted another person on the scene. The police
then decided to take all those present, including the applicant, to
the police station.
-
At 5 a.m. the applicant and F.D. were interviewed by the police. They
were released at 7.30 a.m. No force was used against the applicant
during the questioning, nor did he make any complaint at the police
station concerning any abuse by the police or any injury he had
sustained. No charges were subsequently brought against him.
2. The criminal investigation
-
On 25 May 1998 the applicant, through his
legal representative, filed a criminal
complaint (кривична
пријава)
with the Štip Basic Public
Prosecutor's Office (Основно
Јавно Обвинителство
Штип) against an unidentified
police officer under section 143 of the Criminal Code (see “Relevant
domestic law”). In the complaint, the applicant set out a
factual account of the incident and alleged that the officer
concerned had ill-treated him while he was in police custody. He
requested the public prosecutor's office to initiate proceedings as
provided for by law. The medical certificate of 17 April 1998 was
produced in support of his complaint.
-
On 28 May 1999 the applicant's legal representative wrote a letter to
the Štip public prosecutor, stressing
that his criminal complaint had been filed more than a year
previously and that since then he had received no information and had
no knowledge as to whether any steps had been taken by the public
prosecutor's office to identify the offenders and to initiate a
formal investigation.
-
As there was again no reply, on 25 October 1999 the applicant's
lawyer sent another letter to the public prosecutor, requesting
information about any action undertaken concerning the applicant's
case. He made no reference to the civil proceedings that had already
finished and did not inform the public prosecutor of the identity of
the police officers concerned, which had been determined in the
course of the civil proceedings.
-
In a letter dated 11 November 1999 the Štip
public prosecutor replied that his office had responded to the
criminal complaint at issue by officially requesting additional
inquiries from the Ministry of the Interior (“the Ministry”).
However, to date his office had received no information from the
Ministry.
-
As the applicant has not received any fresh information since then as
to any action taken by the relevant prosecuting authorities, the
proceedings concerning his criminal complaint are still pending.
3. The civil proceedings
-
On 25 May 1998 the applicant submitted a compensation claim against
the respondent State and the Ministry for the non-pecuniary damage he
had suffered as a result of the violence to which he had been
subjected while in police custody. He made the same statements as in
the criminal complaint, namely that after the police officers had
arrived at the bar, one of them had grabbed him by his hair and
pushed him against the police car; that at the police station he had
been told to do push-ups and had been subsequently kicked in the
head, which had caused his mouth to bleed; and that he had been
punched and beaten with a truncheon all over his body.
-
The Government stated that in December 1998, following the bringing
of the civil action, the Solicitor General's Office had requested
information from the Ministry concerning the incident. In January
1999 the Štip police submitted a report
based on the official notes and records, stressing that the police
had not used force at the station and had intervened and placed the
applicant in the police van when he and his friend had resisted them
at the scene and his friend had attacked another person. They added
that no force had been used against the applicant, nor had he
submitted any complaint concerning the injuries allegedly sustained
during the police intervention at the bar. Among the documents
accompanying this report, the Ministry provided the official police
record of the statements given by the applicant while being
questioned. No complaints of alleged abuse or injuries had been noted
in that record.
-
On 22 March 1999 the Štip Court of First
Instance dismissed the applicant's claims as ill-founded. The court
heard evidence from F.D. and several police officers who had
participated in the police raid on the night of the incident. It also
heard evidence from a specialist doctor, who provided his expert
opinion about the applicant's injuries indicated in the medical
certificate. As stated by him, the following injuries had been
observed: a blow on the back of the head; contusion of the left eye;
swollen and bruised left cheek; bruise on the lower part of the chest
and punch on the right hand. He stated that the injuries had been
probably inflicted by a blunt object such as a hand or a tool and
that no special treatment had been necessary for the applicant's
recovery. The court also admitted as evidence the medical certificate
of 17 April 1998 and the photographs showing the applicant's
condition after the incident.
-
The court found it undisputed that the applicant had been injured,
but stated that there was no evidence that the injuries had been
inflicted as a result of police brutality. It established that the
applicant had sustained certain injuries, but concluded that it could
not be inferred under what circumstances they had been inflicted, or
by whom or when. On the basis of the police officers' statements, the
court further established that the applicant had sustained some
injuries to his head and eye before he had been taken to the police
station. It found that the injuries had either been sustained during
the fight in the bar (while the applicant was assisting the escape of
a person who had fired a gun and caused a disturbance) or had
resulted from the legitimate action of police officers in trying to
restrain the applicant who had resisted arrest. It went on to
conclude that, having regard to the statements of the police officers
who had participated in the police raid and to the police report on
the incident, even if the police officers had used some force in the
bar, thus causing the injuries, the applicant could not have been
awarded damages as he had resisted arrest and the circumstances of
the case had necessitated the use of force. The court rebuffed as
ill-founded the applicant's argument that he had not been able to
undergo a medical examination immediately after being released from
custody owing to his lack of financial means, since this was
contradicted by the medical certificate dated 17 April 1998.
-
On 29 April 1999 the applicant appealed.
-
On 5 October 1999 the Štip Court of
Appeal dismissed the applicant's appeal as ill-founded. It stated
that the lower court had indisputably found that the applicant had
sustained certain injuries before he had been taken into police
custody and that the police officers had not inflicted them. It
concluded that the lower court had reasonably found that the State
could not be held liable and had dismissed the applicant's claim for
damages.
-
On 4 February 2000 the applicant requested the public prosecutor to
lodge with the Supreme Court an application for the protection of
legality (барање
за заштита на
законитоста).
Referring to the outcome of the civil proceedings, he did not provide
the public prosecutor with the identity of the police officers who
had allegedly beaten him and who had given evidence in the course of
those proceedings.
-
On 1 March 2000 the public prosecutor rejected the applicant's
request.
II. RELEVANT DOMESTIC LAW
- Section
143 of the Criminal Code (Кривичен
законик)
provides that a person who, in the performance of his duties,
mistreats, intimidates, insults or generally treats another in such a
manner that his human dignity or personality is humiliated is to be
punished by a term of imprisonment of six months to five years.
-
The relevant provisions of the Criminal Proceedings Act (“the
Act”) (Закон
за кривичната
постапка)
may be summarised as follows:
-
Section 16 provides that criminal proceedings must be instituted at
the request of an authorised prosecutor. In cases involving offences
subject to ex officio prosecution by the State or on an
application by the injured party, the authorised prosecutor is the
public prosecutor, whereas in cases involving offences subject to
merely private charges, the authorised prosecutor is the private
prosecutor. If the public prosecutor finds no grounds for the
institution or continuation of criminal proceedings, his role may be
assumed by the injured party, acting as a subsidiary prosecutor under
the conditions specified in the Act.
-
Section 17 sets forth the duty of the public prosecutor to proceed
with a criminal prosecution if there is sufficient evidence that a
crime subject to ex officio prosecution has been committed
(the principle of legality).
-
In accordance with section 42, in discharging this statutory right
and duty, the public prosecutor is empowered to take measures to
detect crimes, to identify their perpetrators and to coordinate
preliminary criminal inquiries; to request the opening of an
investigation; to file and to defend an indictment or application for
prosecution before the competent court; to lodge appeals against
decisions which have not become final; and to make use of
extraordinary judicial remedies against final court decisions.
-
Section 56 provides, inter alia, that where the public
prosecutor finds that there are no grounds for prosecuting an offence
subject to ex officio prosecution, he shall notify the injured
party of his decision within eight days. He shall also inform the
injured party that that party may conduct the prosecution himself.
-
Section 144(1) provides that the public prosecutor is to dismiss the
criminal complaint if it transpires that the act reported is not a
criminal offence subject to ex officio prosecution; that the
statute of limitations has expired; that the offence has been
amnestied or pardoned or that other circumstances exist which
preclude prosecution; or that there is no reasonable suspicion that
the person in question committed the offence. The public prosecutor
shall notify the injured party of the dismissal of the complaint and
of the grounds for the dismissal within eight days (section 56) and,
if the complaint was filed by the Ministry, he shall notify the
latter accordingly.
-
Section 144(2) provides that if the public prosecutor is unable to
establish, from the criminal complaint, whether or not the
allegations set out in the complaint are credible, or if the
information given in it is insufficient for him to take a decision on
whether to request the opening of an investigation, or if he has
merely learned of rumours that a crime has been committed,
particularly where the perpetrator is unknown, he shall, if he cannot
do this alone or through other authorities, request the Ministry to
gather the necessary information and to take other measures to
investigate the offence and identify the offender. The public
prosecutor may at any time require the Ministry to inform him about
the measures taken.
-
Section 148 provides, inter alia, that when the perpetrator of
a crime is unknown, the public prosecutor may request that the
Ministry take certain investigative measures if, in view of the
circumstances of the case, it would be advisable to take such
measures even before the investigation has been formally opened.
-
Section 150 provides that an investigation is to be opened in respect
of a particular person where a reasonable suspicion exists that he
has committed an offence.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
-
The applicant complained under Article 3 of the
Convention that he had been subjected to acts of police brutality,
which had caused him great physical and mental suffering amounting to
torture, inhuman and/or degrading treatment. Furthermore, he alleged
that he had been the victim of a procedural violation of the above
Article since the prosecuting authorities had failed to carry out an
effective or, indeed, any official investigation capable of leading
to the identification and punishment of the police officers
responsible for the treatment. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The submissions of the parties
1. The Government
-
The Government submitted that the applicant's allegations were not
credible or substantiated. The statements taken by the police and the
official records contradicted the applicant's version of events,
including the timing of the incident, his role in it and the minor
injuries recorded after an alleged night of being beaten. The
applicant and his friend had not been neutral bystanders, but active
participants in the quarrel and had obstructed the police in their
attempt to take a gambler into custody. The police had been obliged
to use permissible force to prevent further disruption and to restore
order. The minor physical injuries recorded by a doctor were most
probably the result of the scuffling between the participants in the
bar brawl before the police's arrival or the result of the necessary
intervention of the police. There was no evidence of the alleged use
of force at the police station.
-
The Government also pointed out that the applicant was not a
respectable citizen being persecuted by the police on account of his
Roma identity, but in fact an offender with an extensive criminal
record. Between 1985 and 1998, 11 criminal charges had been brought
against him, eight of which concerned property offences, two assaults
and one a public-order offence. The applicant had received four
prison sentences, of which one was suspended, and in 2002 further
criminal charges for serious bodily harm had been brought. As regards
the investigation into his allegations, they submitted that he
himself had rendered it ineffective by not using the appropriate
remedies and by not providing concrete evidence or facts relating to
the alleged violation. If he had used the possibilities open to him
in a timely fashion, there would have been some prospect of an
effective investigation. They maintained that the applicant had
neither raised the issue of being beaten during the questioning at
the police station nor reported the alleged ill-treatment in the days
that followed. The investigation was still pending, as the public
prosecutor had not yet taken a decision to dismiss the complaints.
2. The applicant
-
The applicant submitted that he had been subjected to acts of police
brutality that had caused him severe physical and mental suffering
amounting to torture or to inhuman and degrading treatment or
punishment. As he had suffered physical abuse while in police
custody, it was for the Government to show that their officials were
not responsible for his injuries. They had not done so. Their version
of events was contradicted by the statement given by F.D., the only
independent witness, and the medical certificate issued by the
hospital, which had found numerous serious injuries to the
applicant's head, hands and back. There was nothing to suggest that
the applicant had taken part in any physical confrontation or had
physically resisted the police. The internal police memos were biased
and had no probative value. The courts, when considering the
applicant's claims, had simply ignored the evidence and relied on
police evidence and reports which were clearly cursory, inconsistent
and in contradiction with one another.
-
The applicant also referred to the report by the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) on its visit to the former Yugoslav Republic of
Macedonia from 15 to 19 July 2002 (CPT/Inf(2003), which indicated
that physical ill-treatment of persons in police custody was a
serious problem and expressed doubt that judges or prosecutors
conducted effective investigations where such ill-treatment came to
their attention. This indicated a deep-rooted and widespread practice
of abuse in police custody and impunity with regard to officers who
perpetrated such acts. It was for the Government to show what they
had done in response to the scale and seriousness of the problem at
issue. In the present case, they had clearly done nothing. Finally,
the applicant disputed that any remedies existed to provide redress
for the authorities' blatant inaction.
B. The Court's assessment
1. Concerning the alleged ill-treatment
(i) General principles
-
As the Court has stated on many occasions, Article 3 enshrines one of
the most fundamental values of democratic societies. Even in the most
difficult circumstances, such as the fight against terrorism and
organised crime, the Convention prohibits in absolute terms torture
and inhuman or degrading treatment or punishment. Unlike most of the
substantive clauses of the Convention and of Protocols Nos. 1 and 4,
Article 3 makes no provision for exceptions and no derogation from it
is permissible under Article 15 § 2 even in the event of a
public emergency threatening the life of the nation (see Boicenco
v. Moldova, no. 41088/05, § 102, 11 July 2006;
Labita v. Italy [GC], no. 26772/95, § 119,
ECHR 2000 IV; Selmouni v. France [GC], no. 25803/94, §
95, ECHR 1999 V; Assenov and Others v. Bulgaria
judgment of 28 October 1998, Reports of Judgments and
Decisions 1998-VIII, p. 3288, § 93; Chahal v. the
United Kingdom, judgment of 15 November 1996, Reports
1996 V, § 79).
-
The Court recalls that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The
assessment of this minimum is relative: it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and/or mental effects and, in some cases, the sex, age and
state of health of the victim (see V. v. the United Kingdom
[GC], no. 24888/94, § 70, ECHR 1999 IX; Raninen v.
Finland, judgment of 16 December 1997, Reports 1997 VIII,
§ 55; Labita, judgment, cited above, §
120; Tekin v. Turkey, judgment of 9 June 1998, Reports
1998 IV, p. 1517, § § 52 and 53; Assenov
and Others, cited above, p. 3288, § 94; İlhan v.
Turkey [GC], no. 22277/93, § 84, ECHR 2000 VII).
-
Allegations of ill-treatment must be supported by appropriate
evidence (see, mutatis mutandis, Klaas v. Germany,
judgment of 22 September 1993, Series A no. 269, pp. 17-18, §
30). To assess this evidence, the Court adopts the standard of proof
“beyond reasonable doubt”, but adds that such proof may
follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
(see Labita, cited above, § 121; Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no.
25, pp. 64-65, § 161).
-
It is further recalled that it is not normally within the province of
the Court to substitute its own assessment of the facts for that of
the domestic courts and, as a general rule, it is for these courts to
assess the evidence before them (see Klaas, cited above,
§ 29).
(ii) Application of these principles in
the present case
-
Turning to the present case, the Court at the outset notes as
undisputed that a quarrel erupted in the bar in which several
gunshots were fired. It was the disruption inside the bar and the
shooting incident that called for the police intervention. The civil
courts confirmed this in their findings of fact. It was not denied by
either of the parties.
-
The Court also finds it incontrovertible that the applicant sustained
certain injuries. This was corroborated by the medical certificate
and the findings of the civil courts. The national courts, however,
rejected the applicant's allegations of how the injuries were caused.
In reaching the conclusion that he might well have sustained the
injuries in the bar, either as a result of the brawl or while
resisting arrest and that the arresting officers had not used
excessive force, the trial court, in particular, had the benefit of
seeing the various witnesses give their evidence and of evaluating
their credibility. It also heard evidence from a specialist doctor
concerning the applicant's injuries as indicated in the medical
certificate which had merely specified the source of the injuries - a
blunt object, i.e. a hand or a tool. As to the medical certificate,
the Court notes that it was brief and failed to state any opinion as
to the cause of the injuries. It further observes that the
doctor's findings given at the trial contradict the picture of the
applicant's facial injuries submitted before it (see paragraph 13
above).
-
Contrary to the Government's version of events, which coincided with
the civil courts' findings, the applicant argued that the injuries
were caused by the treatment he had undergone while in police
custody. He did so on two occasions, in the application and in the
reply to the Government's observations. It was at the public hearing
of 19 January 2006 that the applicant underlined that he had been
beaten by the police in the bar before he was taken into custody. He
further relied on that version in his submissions of 7 June 2006
concerning the just satisfaction claims. In this respect, even
assuming that he complained about being beaten at the scene in the
bar, the Court considers that he failed to raise that matter either
before the civil courts or before the public prosecutor. Furthermore,
it was noted in the medical certificate that the applicant had
declared that he had sustained the injuries while in police custody.
-
The Court, however, observes that no cogent elements have been
adduced in the course of the proceedings before it which could call
into question the findings of the national courts and support the
applicant's allegations. The inconsistency about his injuries and the
circumstance under which he sustained them corroborate that
conclusion. It further notes that eight years after these events, and
owing primarily to the national authorities' inactivity and
reluctance to carry out an effective investigation into the
applicant's allegations, the Court is not able to establish which
version of events is the more credible (see, mutatis mutandis,
Veznedaroğlu v. Turkey, no. 32357/96, § 31, 11
April 2000; Assenov and Others, cited above, § 92).
-
In conclusion, since the evidence before it does not enable the Court
to find beyond all reasonable doubt that the applicant was subjected
to physical and mental ill-treatment while in police custody, the
Court considers that there is insufficient evidence for it to
conclude that there has been a violation of Article 3 of the
Convention on account of the alleged ill treatment.
2. Concerning the alleged lack of an effective
investigation
(i) General principles
-
The Court recalls that where an individual makes a credible assertion
that he has suffered treatment infringing Article 3 at the hands of
the police or other similar agents of the State, that provision, read
in conjunction with the State's general duty under Article 1 of the
Convention to “secure to everyone within their jurisdiction the
rights and freedoms defined in ... [the] Convention”, requires
by implication that there should be an effective official
investigation. As with an investigation under Article 2, such
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, 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 agents of the
State to abuse the rights of those within their control with virtual
impunity (see Corsacov v. Moldova, no. 18944/02, § 68,
4 April 2006; Labita, cited above, § 131, ECHR 2000 IV;
McCann and Others v. the United Kingdom, judgment of
27 September 1995, Series A no. 324, p. 49,
§ 161; Kaya v. Turkey, judgment of 19 February
1998, Reports 1998 I, p. 324, § 86; Yaşa
v. Turkey, judgment of 2 September 1998, Reports 1998 VI,
p. 2438, § 98).
-
The investigation into serious allegations of ill-treatment must be
thorough. That means that 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 (see Assenov and Others, cited above,
§ 103). They must take all reasonable steps available to
them to secure the evidence concerning the incident, including, inter
alia, eyewitness testimony and forensic evidence (see Tanrıkulu
v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104,
and Gül v. Turkey, no. 22676/93, § 89, 14
December 2000). Any deficiency in the investigation which undermines
its ability to establish the cause of injuries or the identity of the
persons responsible will risk falling foul of this standard (see
Boicenco, cited above, § 123).
- Finally,
the investigation must be expeditious. In cases under Articles 2
and 3 of the Convention, where the effectiveness of the official
investigation was at issue, the Court had often assessed whether the
authorities reacted promptly to the complaints at the relevant time
(see, among others, Labita, cited above, § 133).
(ii) Application of these principles in
the present case
-
The Court considers noteworthy that the applicant filed the criminal
complaint with the public prosecutor and lodged his compensation
claim more than a month after the decisive event (see paragraphs 17
and 22 above). The applicant gave no explanation for that delay. The
Court, further, accepts that at that time the identity of the
perpetrators was unknown to him. It however, cannot find a convincing
explanation for the applicant's failure to inform the public
prosecutor of the identity of the police officers who had apprehended
him in the bar, which had been determined in the course of the civil
proceedings. The applicant failed to provide this information on two
occasions: in his letter of 25 October 1999 and in the request for
the protection of legality of 4 February 2000 (see paragraphs 19 and
28 above). However, notwithstanding this failure, the Court stresses
that the applicant's lawyer lodged a criminal complaint about the
alleged police brutality together with the medical certificate. In
these circumstances the matter was sufficiently brought to the
attention of the relevant domestic authority, and the Court is
satisfied that it raised at least a reasonable suspicion that the
applicant's injuries could have been caused by the treatment he had
undergone while in the police custody. As such, the public prosecutor
was under the duty to investigate whether an offence had been
committed. In this respect, it is particularly striking that the
public prosecutor did not undertake any investigative measures after
receiving the criminal complaint from the applicant's lawyer. The
Court notes that the national authorities took no steps to identify
who was present when the applicant was apprehended or when his
injuries were received, nor is there any indication that any
witnesses, police officers concerned or the doctor, who had examined
the applicant, were questioned about the applicant's injuries.
Furthermore, the public prosecutor took no steps to find any evidence
confirming or contradicting the account given by the applicant as to
the alleged ill-treatment. Indeed, the only investigative measure
undertaken by the prosecutor was his request for additional
information submitted to the Ministry. This inquiry was made more
than a year and a half after the criminal complaint had been lodged.
-
In addition, the inactivity of the public prosecutor prevented the
applicant from taking over the investigation as a subsidiary
complainant and denied him access to the subsequent proceedings
before the court of competent jurisdiction (see Aksoy v. Turkey,
judgment of 18 December 1996, Reports 1996-VI, § 98).
The applicant is still barred from taking over the investigation as
the public prosecutor has not yet taken a decision to dismiss the
complaint.
-
In these circumstances, having regard to the lack of any
investigation into the allegations made by the applicant that he had
been ill-treated by the police while in custody, the Court holds that
there has been a violation of Article 3 of the Convention in this
respect.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
-
The applicant further complained that he had had no effective remedy
in respect of the national authorities' failure effectively to
investigate his allegations of ill-treatment, contrary to Article 13
of the Convention, read in conjunction with Article 3. Article 13
reads as follows:
“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.”
- Having regard to the grounds on which it has found a
violation of the procedural aspect of Article 3, the Court, considers
that no separate issue arises under Article 13 of the Convention.
(see Kazakova v. Bulgaria, no. 55061/00,
§ 70, 22 June 2006; Bekos and Koutropoulos v.
Greece, no. 15250/02, § 57, ECHR 2005)
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
-
The applicant claimed EUR 35,000 in respect of non-pecuniary damage
for the pain, physical injuries, frustration, anguish and
helplessness which he had suffered as a result of the ill-treatment
inflicted by the police officers while being in a very vulnerable
position, i.e. at the police officers' mercy. He also referred to the
flaws of the ensuing investigation taken by the national authorities.
As no legal action was taken eight years after he had introduced the
criminal complaint, he had continued to perceive that police officers
were above the law and that the justice would be unattainable. The
applicant further referred to his Roma origin, maintaining that his
case was not unique in the former Yugoslav Republic of Macedonia.
-
The Government contested the applicant's claims as excessive. They
referred to the decisions of the national courts in which it had been
established that he had been injured in the bar prior to the police
intervention. The medical certificate indicated that the injuries had
been of a minor nature. Although the subsequent investigation had
been stayed for a long time and provided no results, the Government
invited the Court to consider that the eventual finding of a
violation constituted in itself sufficient compensation for any
damage in the present case.
-
The Court observes that it has found the authorities of the
respondent State to be in breach of Article 3 on account of their
failure to investigate the applicant's allegations of police
brutality. It has reached no conclusion on the substance of that
complaint. The Court considers that a finding of a breach of Article
3 under its procedural head cannot be said in the circumstances to
constitute in itself sufficient just satisfaction for any
non pecuniary damage sustained by the applicant.
In its view, the applicant must be taken to have suffered some degree
of frustration and anguish in regard to the lack of concern displayed
by the authorities with respect to his complaint. Making an
assessment on an equitable basis, it awards the applicant the sum of
EUR 3,000, plus any tax that may be chargeable.
B. Costs and expenses
-
The applicant claimed EUR 16,605 for the costs and expenses incurred
by the ERRC in the proceedings before the Court. These included the
fees for two lawyers engaged on the case for 214 hours of legal work
and administration. A fee note was produced for the activities of the
ERRC taken between 14 November 2005 and 7 June 2006 and for the
travel arrangements related to the oral hearing.
-
The applicant further claimed EUR 4,148 for the costs and expenses
incurred by the Macedonian lawyer in the domestic proceedings and
those before the Court. These included the lawyer's fees for 92 hours
of legal work according to the rate scale of the Macedonian Bar and
the travelling and accommodation expenses concerning the oral
hearing. An itemized list was attached thereto.
-
The applicant's representatives have requested that the fees be paid
directly to them, as the applicant did not support any financial
charge during the proceedings. They did not provide their bank
accounts.
- The
Government stated that the amounts claimed by the ERRC for the
activities taken in the period mentioned above had been exorbitant if
compared with the economic situation in the former Yugoslav Republic
of Macedonia. Further to their complaint for the engagement of two
lawyers by the ERRC, they invited the Court to decide the costs and
expenses on an equitable basis. As to the costs and expenses claimed
by the Macedonian lawyer, the Government considered their amount as
reasonable, as incurred during an eight-year period.
-
According to the Court's case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum (see Editions Plon v. France, no.
58148/00, § 64, ECHR 2004 IV). In the present
case, regard being had to the information in its possession and the
above criteria, the Court finds the amount
claimed by the ERRC to be excessive in view of the period covered and
awards instead the sum of EUR 5,000 to cover its costs and
expenses. As the Government did not contest the costs claimed by the
Macedonian lawyer, it awards in full the sum claimed by him. These
amounts are to be paid into the bank accounts of the applicant's
representatives, exclusive of any tax that may be chargeable.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no violation of Article 3 of
the Convention on account of the alleged ill-treatment;
- Holds that there has been a violation of
Article 3 of the Convention on account of the failure of the
authorities to conduct an effective investigation into the
applicant's allegations that he was ill-treated by the police;
3. Holds that it is not necessary to consider the applicant's
complaint about the lack of an effective remedy under Article 13 of
the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(b) that the respondent State is to pay the applicant's
representatives, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts:
(i) EUR
5,000 (five thousand euros) in respect of the costs and expenses
incurred by the ERRC;
(ii) EUR
4,148 (four thousand one hundred and forty-eight euros) in respect of
costs and expenses of the Macedonian lawyer;
(iii) any
tax that may be chargeable on the above amounts;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
