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FIFTH
SECTION
CASE OF
DZELADINOV AND OTHERS v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 13252/02)
JUDGMENT
STRASBOURG
10
April 2008
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 Dzeladinov and Others v. the former Yugoslav
Republic of Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 6 March 2007 and on 18 March 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 13252/02) 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 five Macedonian nationals,
Mr Amdi Dzeladinov (“the first applicant”), born on 23
October 1975, Mr Dudzihan Kamilov (“the second
applicant”), born on 2 April 1966, Ms Remzie Durmišova
(“the third applicant”), born on 25 March 1977,
Mr Dagistan Alilov (“the fourth applicant”), born on
1 February 1977, and Mr Mefail (Meta) Asanovski (“the fifth
applicant”), born on 24 January 1966, who live in
Štip, in the former Yugoslav Republic of Macedonia.
- The
applicants were represented by the Štip Association for the
Protection of Roma Rights and the European Roma Rights Centre (“the
ERRC”), an organisation based in Budapest, Hungary. The
Macedonian Government (“the Government”) were represented
by their Agent, Mrs R. Lazareska Gerovska.
- The
applicants alleged, in particular, that they had been ill-treated by
police officers and that no investigation into that allegation had
been carried out by the prosecuting authorities. They relied on
Articles 3 and 13 of the Convention.
- By
a decision of 6 March 2007, the Court declared the
applicants' complaints under Articles 3 and 13 admissible and the
Article 14 complaint inadmissible.
- The
applicants filed further written observations (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. The incident
(a) The applicants' version of events
- At
around midnight on 2 August 1998, a group of Roma, who were leaving a
restaurant where they had attended a Romani circumcision celebration,
were involved in a fight with Z.S., a wrestling champion who worked
as a fitness instructor for the police force. Z.S. reported the
incident to the local police and around ten police officers went to
the restaurant in search of the alleged attackers. When they entered
the restaurant, they allegedly started to assault the guests.
- According
to the applicants, they were beaten with truncheons, punched and
kicked. The fifth applicant said that he was grabbed by the hair and
beaten all over his body; he was then handcuffed and taken to the
police station where he was subjected to severe ill-treatment. The
second applicant also complained that he had been beaten, despite his
wife's attempts to protect him. The second and fourth applicants said
that they were taken to a police station where they were kept for
several hours and beaten by the police officers, who repeatedly
insulted them on account of their ethnic origin.
- The
third applicant was seven months pregnant when she was beaten in the
restaurant. Following the raid, the police were asked to arrange for
her to be taken to hospital, but refused. She somehow managed to get
to the hospital, but the doctors refused to examine her when they
found out that her assailants had been police officers. She said that
she was severely distressed and in pain throughout the night. The
following day, she was examined in the same hospital, but no injuries
or problems were detected.
- It
was alleged that twenty other Roma asked for medical help that night,
but they were all turned down as they could not pay for treatment.
- The
next day, in response to an earlier police summons, the first
applicant went to the police station where he was allegedly beaten
for two hours and insulted on account of his ethnic origin. He said
that some six police officers had hit him with a truncheon, and
punched and kicked him. A gun had been held to his head, at which
point he had falsely confessed to his involvement in the fight with
Z.S.
- The
applicants, in support of their application before the Court,
provided photographs of bruises on their backs, heads and buttocks.
(b) The Government's version of events
- At
around 11.40 p.m. on 2 August 1998 the police officers on duty
received a telephone call saying that four Roma, who had attended a
circumcision party in a restaurant, had stopped a car and physically
attacked the driver (Z.S.). Three police officers went to the scene.
After Z.S. had identified the first applicant as being among the
attackers, the police officers requested him to leave the group and
get into the police car. Although the police officers did nothing to
provoke the group, some fifty to eighty Roma started to throw stones
and bottles causing facial injuries to one of the officers. The
police car was also damaged. As the police officers were prevented
from arresting the first applicant, who had fled the scene, and as
they feared for their own safety, they radioed for backup. One of the
officers fired two shots in the air to disperse the crowd. A patrol
of five more officers arrived at the scene. Another two shots were
fired in the air.
- As
these attempts to restore order proved unsuccessful, the police
officers used batons. After the crowd had been broken up, the police
took various people, including the second and fifth applicants, to
the police station. After being questioned about the assault on Z.S.,
the second and fifth applicants were released. It was established
that they had been among the crowd, but had not been involved in the
physical attack on Z.S. No force was used against them at the police
station. According to the medical records of the Emergency Unit of
Štip Hospital, none of the persons apprehended or involved in
the fight had requested medical assistance as a result of the police
intervention. On the other hand, three police officers had been
examined and two of them were found to have sustained minor injuries.
- According
to the medical records, at the request of a pregnant woman, a medical
team had gone to the scene and brought her to the hospital. An entry
in the hospital's medical records of 3 August 1998 showed that one
Sulimanova Ramize or Demirova Remzie had been “urgently”
admitted with bruising to the head. Two doctors, a surgeon and a
gynaecologist, had examined her and a note had been made in the
record: “no funds – fight”. No injuries to the
foetus or other pregnancy-related trauma were detected. On 4 August
1998 the same findings were recorded by another doctor in the medical
records of Sulimanova Ramize, who, it was noted, had frequently
requested medical assistance in the past for injuries sustained in
fights and had sustained a black eye on the most recent occasion. An
eyewitness to the incident stated that a pregnant woman had hit a
police officer over the head with a bottle.
- The
Government based their version of events on a number of police
reports that had been compiled between 3 August and 11 September
1998.
2. Documents concerning the incident
(a) Report on the use of coercive measures
- On
3 August 1998 the chief of the local police drew up a report
concerning the coercive measures that had been used during the
incident. It reads, inter alia, as follows:
“...on 2 August 1998 a phone call was received [to
the effect] that Z.S. had been physically attacked by a group of Roma
... Mr S., Mr A. and Mr M. [police officers] arrived at the scene ...
Z.S. identified one of the attackers ... he was requested to get into
the police car. The person concerned came forward without resisting
..., but when a van arrived ... the crowd attacked it, started to
drag Mr S. and Mr M. ... they started to throw stones, bottles and
other objects at the officers and the police car. The suspect fled
... Backup was immediately requested; five police officers arrived
after two to three minutes ... around 60 to 80 people threw stones,
bottles and other items ... police officers A.D., M.Z. and N.P. were
hit ... Physical force and rubber batons were used against several
Roma by the officers S.S., A.D., M.Z., S.V., T.T., N.P., B.R., S.V.
and Z.S. ... because the crowd continued to throw stones and other
objects at the officers despite warnings (six shots fired in the air)
...”
(b) Telegram of 3 August 1998 from the
local police to the Ministry of the Interior (“the Ministry”)
- In
the telegram, the police described the incident and stated that four
people, including the second and fifth applicants, had been brought
to the police station for questioning. It said that three police
officers had sustained minor injuries in the intervention in which
stones and bottles had been thrown at the police officers.
(c) Information on the measures that were
taken in relation to the incident
- In
a document of 11 September 1998, the Štip police indicated
that according to the statement of an eyewitness, the incident had
caused considerable alarm. This is how the eyewitness described the
incident:
“...my wife and I were extremely unnerved by the
incident and the intensity of the attack by the Roma, first, against
the occupant of the car [referring to Z.S.], and then against the
police officers who had done nothing to anger the crowd. It was
simply that the savage nature [of the attack] was clear to see and
incited by an inebriated group of people who had been celebrating a
circumcision ...”
- Concerning
the use of coercive measures, the report stated, inter alia:
“... it is considered that the use of rubber
batons was justified for the following reasons: [there had been an]
unmotivated and brutal attack on Z.S.; the authorised officers had
been prevented from carrying out an official activity, i.e.
identifying the perpetrator of an offence, although no coercive
measures had been used against the person concerned or anyone else;
the life and physical integrity of the authorised officers had been
endangered by a sustained attack which was liable to cause grievous
bodily harm or fatal injury; officials were injured and a police car
damaged; orders by the police officers were disobeyed and the attack
had continued even after shots were fired in the air ...”
- The
document continued:
“... some [sections of the] media and citizens'
associations are minimising or ignoring the objective circumstances
and the responsibility of the perpetrators and the individual
involvement of each of the participants in the group, tendentiously
asserting that the police targeted the Roma population, whereas they
were not influenced by the perpetrators' ethnic affiliation, but
merely responded to the concrete circumstances of the incident ...”
- It
was further noted that a group of some twenty to thirty Roma and Mr
A.B., a former member of Parliament, had gathered outside the local
police station afterwards.
(d) Extracts from depositions taken on 12
December 1998 in the pre-trial proceedings against the first and
fourth applicants
- Mrs
P.S., Z.S.'s wife, who was in the car at the time of the incident
stated, inter alia:
“... Meanwhile, one of the participants went to
the restaurant where the Roma were holding a wedding party and most
probably told lies [about the incident]. A large group of people came
out of the restaurant causing total chaos. When the officers got out
of the car, they started throwing stones and other objects. A horse
cart was standing nearby and a man gave wooden sticks to the group to
use against the police. I would stress that women and children stood
in front of the officers with the men behind. There was a pregnant
woman among the group of people. My husband took her out of the group
so that she would not be injured; he stopped a car which took her to
the city hospital ...”
(e) Extracts from depositions taken on 2
March 1999 in the pre-trial proceedings against the first and fourth
applicants
- The
first applicant stated, inter alia:
“... While he [the police officer] was taking me
to the police van, a scuffle started as many people gathered around.
At that moment, the police officers fired six shots in the air to
disperse the crowd. I did not see any stones, bottles or pieces of
wood being thrown at the van. When the officer released my arm, he
launched himself at the group with a truncheon. I escaped and went
home ...”
- Describing
the circumstances concerning the fight with Z.S., the fourth
applicant stated, inter alia:
“... while I was pulling S. aside, Z.S. punched me
once in the face ... I think that there were around 40 or 50 people
at the scene ...”
(f) Extracts from the transcript of the
hearing of 22 October 1999 at the trial of the first and fourth
applicants
- The
fourth applicant stated, inter alia:
“... It is not true that he [Z.S.] did not hit
anyone. He hit me with his elbow in the chest and punched me in the
left eye. I felt intense pain, I found a bottle and struck Z.S. over
the head ... I had blood in my eye from Z.S.'s punch and could not
see ...”
- Mrs
P.S. identified the first applicant as one of the attackers of her
husband, describing him as a person “with long hair and dressed
in black”. The first applicant confirmed that he had long hair
and had been wearing black clothes.
(g) Extracts from the transcript of the
hearing of 25 October 1999 at the trial of the first and fourth
applicants
- Mr
D.K., an eyewitness, stated, inter alia:
“... a large group of Roma gathered ... they
started to throw stones and bottles at the police officers who had
arrived at the scene. I think that one of the officers concerned
fired to restore order ...”
- Mrs
N.J., an eyewitness, stated, inter alia:
“... Z.S. firstly hit D. [the fourth applicant] in
the eye and then D. hit him with a bottle on the back of the head
...”
3. The criminal proceedings against the first and
fourth applicants
- On
9 September 1998 the Ministry filed a criminal complaint against four
persons, including the first and fourth applicants, for assault.
- On
28 April 1999 the public prosecutor lodged an indictment with the
court alleging assault (насилство)
on Z.S. under Article 386 of the Criminal Code. It was noted in
the indictment, inter alia, that around a hundred people had
witnessed the incident.
- On
8 November 1999 the Štip Court of First Instance found the
first and fourth applicants guilty of taking part in the fight and
sentenced them to six and eight months' imprisonment respectively. It
acquitted a co-defendant, M.J., as he had attempted to separate those
involved. The court admitted a considerable amount of evidence
including oral evidence from the accused, Z.S. and his wife; evidence
from nine eyewitnesses and two doctors concerning Z.S.'s injuries;
and a medical certificate of 2 August 1998 on Z.S. The court
established that S.U., one of the accused, had left the restaurant at
around 11.30 p.m. While under the influence of alcohol he had gone
out into the street and stopped the car in which Z.S. and his wife
were travelling. S.U. had immediately started to bang on the car.
When Z.S. got out, S.U. had attacked him with his fists and kicked
him. Shortly afterwards, the first and fourth applicants had joined
in, battering Z.S. with their fists and a glass bottle and kicking
him all over his body. Z.S. had sustained injuries to his head, cuts
to his finger and elbow, bruising to his face and damage to eight
teeth. The court rejected the first applicant's defence that
he had not been involved in the quarrel as contrary to the evidence.
It found the fourth applicant's argument that he had been involved in
the fight with Z.S. because the latter had hit him in the eye
unsubstantiated, as no evidence or medical certificate had been
produced in support of that allegation.
- On
15 January 2000 the first-instance decision became final as no appeal
had been lodged within the statutory time-limit. According to the
applicants, they had not appealed against the decision because the
trial judge's lack of sympathy with their allegations of
ill-treatment and repeated intimidation by the police gave them
little hope that they would have any prospect of success on appeal.
4. The criminal investigation into alleged police
brutality
- On
11 August 1998 the applicants filed a criminal complaint (кривична
пријава) for torture
with the Štip public prosecutor's office
(Основно Јавно
Обвинителство
Штип) against the Ministry. It was stated
in the complaint that after the fight with Z.S. a large group of
police officers had arrived and beaten the guests in the restaurant
with their truncheons and fists and kicked them. The applicants
alleged that some of the guests had been tied up and beaten at the
police station the following day. They also complained that the
officers concerned had used force to extract confessions from some of
them concerning their involvement in the fight with Z.S. They said
that they had produced photographs and a medical certificate in
support of that allegation. They also invited the public prosecutor
to take statements.
- On
20 August 1998 the applicants provided the public prosecutor with
further photographs as evidence of the police abuse.
- On
2 September 1998 they submitted written statements about the events.
- The
first applicant stated, inter alia:
“... [after my release from custody] I wanted to
see a doctor, but assumed that, as with the others, I would not be
admitted to the hospital. We have all had to put up with the pains
...”
- After
being taken to hospital after the incident, the third applicant
stated, inter alia:
“... a gynaecologist examined me and sent me home.
He told me to visit a doctor on the following Tuesday ...”
38. The fourth applicant stated, inter alia:
“... After I was released from custody, I went to
the Emergency Unit as I felt unbearable pains all over my body.
There, they refused to give me medical care as I had no funds. I was
told that (medical services) for injuries sustained in a fight have
to be paid for ...”
- The
fifth applicant stated, inter alia:
“... [after his release from custody] ... After
several hours, I went to the Štip Medical
Centre because of the unbearable pains all over my body. They did not
want to examine me, nor did they issue a medical certificate as I had
no funds to pay [for treatment] ...”
- On
30 September 1998 the local public prosecutor's
office requested information concerning the incident from the
Ministry through the State public prosecutor's office. On 13 October
1998 the State public prosecutor's office transmitted this request to
the Ministry. On 11 November 1998 the local police submitted to the
central police authority all the material relating to the incident.
- As
the local public prosecutor failed to respond to the applicants'
complaint for almost seven months, the applicants' representative
wrote to the Minister of the Interior on 10 March 1999 informing him
about the case.
- As
they did not receive a reply from the Ministry or the local public
prosecutor, on 26 October 2000 the applicants sent another letter to
the latter enquiring about the progress of their case.
- In
a letter dated 28 November 2000 the local public prosecutor replied
that on 30 September 1998 his office had requested the Ministry to
take steps to identify the offenders, but had not received a reply.
- The
applicants received no information or acknowledgement about the
action that had been taken by the competent national prosecuting
authorities in relation to their complaint of torture by police
officers.
II. RELEVANT DOMESTIC LAW
- The
provisions relevant to the present case were described in the Jasar
judgment (see Jasar v. the former Yugoslav Republic of Macedonia,
cited above, §§ 32-40).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained that they had been assaulted and ill-treated by
police officers and that there had been no effective investigation
into their complaints. They relied on Article 3 of the Convention,
which provides:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
1. The parties' submissions
(i) The Government
- The
Government submitted that the force used by the police officers to
subdue the active resistance of the large group of Roma was
reasonable, justified and proper. Referring to the national
legislation, they argued that officers were empowered to have
recourse to physical force when it was strictly necessary and
proportionate and if other methods had not proved effective. They
stated that the officers concerned had used force of the type and
degree that had been absolutely necessary to suppress the Roma's
active, unlawful and direct resistance, in particular as the Roma had
disobeyed police commands and had used dangerous objects (stones,
bottles and wooden sticks) against the officers. They further
maintained that the officers had initially attempted to restore order
without resorting to physical force (by issuing a warning and an
order) and had only gone on to apply the mildest form of coercive
measure (involving the use of physical force and a rubber baton) in
the performance of their duty. The Government concluded that the
applicable principles concerning the force used had been respected:
the aim had been to subdue resistance; the officers had used a lawful
coercive measure; force had been used only because the resistance
could not have otherwise been subdued and it had been necessary to
act immediately; and the measure had been used in accordance with law
and had continued for as long as the reasons that had prompted the
intervention persisted.
- The
Government disputed the first applicant's allegations that he had
been beaten while in police custody so that he would confess to
involvement in the fight with Z.S. They submitted that the first
applicant had failed to challenge at his trial the admissibility of
the statement he made to the police. They argued, furthermore, that
the Ministry had not needed a confession before filing a criminal
complaint against him as there had been other evidence to corroborate
the allegation that he had been involved in the fight. They further
argued that an accused could always deny what he or she had stated
earlier; that the courts were required to rely on other evidence in
addition to any confession; that the statements made in the pre-trial
proceedings before other bodies could not be used at the trial; and
that unlawfully obtained evidence could not be used as a ground for a
court decision.
- The
Government submitted that the first and fourth applicants had
sustained their injuries in the fight with Z.S., as established by
the national courts. Referring to the various statements that had
been made in the course of the criminal proceedings against the first
and fourth applicants, they maintained that the third applicant,
assuming her to be the person referred to in the medical records, had
sustained her only established injury, bruising to the head, during
her active participation in the attack on the police. They challenged
her complaint that she had not been provided with medical care as
being contrary to the hospital records. They noted that the second
and fifth applicants had been apprehended by the police for
involvement in the disturbance and not in the fight with Z.S.
According to the medical records, neither had requested medical
assistance. Concerning the injuries that the second and fifth
applicants had allegedly sustained, they stressed that they could
have been inflicted only as a result of the use of reasonable force
to subdue the disturbance in which they had been actively involved.
They concluded that neither the public prosecutor nor the
investigating judge, who had questioned the applicants after the
interrogation by the police, had noticed any injuries. If they had
done so, they would have taken appropriate action.
- As
regards the allegations that no medical assistance was given to the
Roma on the night of the incident or during the course of the
following day, the Government referred to the national legislation
requiring anyone injured as a result of their involvement in the
commission of a criminal offence to cover the medical expenses
related to the treatment of their injuries, as such cover was not
provided by the State health service. In that connection, the
Government concluded that the applicants should have paid for the
medical services if they required treatment. For this reason, the
fifth applicant was refused medical assistance after the medical
personnel had verified that the injuries did not endanger his life or
health. Reiterating their reservations regarding the identity of the
third applicant in relation to the medical records, they averred that
she had received medical care as she had been admitted as an “urgent
case”, although she had been required to pay for the services
for the reasons mentioned above.
- Concerning
the alleged lack of an effective investigation, the Government stated
that the public prosecutor had made the necessary enquiries to the
Ministry, but that the latter had failed to provide the requested
information. As Ministry records were destroyed after three years,
the person responsible for the Ministry's failure could not be
identified.
(ii) The applicants
- The
applicants disagreed with the Government's arguments that the force
used by the officials had been necessary and proportionate. Referring
to their version of events, they reiterated that ten police officers
had arrived at the scene and had started to beat the guests in the
restaurant for no apparent reason. They challenged the Government's
argument that the intervention had been justified because of, inter
alia, the “unmotivated and brutal attack on Z.S.”, as
the police officers concerned had arrived at the scene after the
fight and therefore could not have been aware of its nature. They
further maintained that the criminal charges against the first and
fourth applicants had been brought two months after the applicants'
complaint was filed with the public prosecutor. Moreover, no criminal
proceedings were instituted concerning the alleged disturbance. The
applicants noted that the police reports contained many
inconsistencies concerning the order in which the coercive measures
had been used: whether shots had been fired in the air before or
after other measures of coercion had been taken, who had fired the
weapons and how many shots had been fired. They argued that the use
of force had been disproportionate and unnecessary, as the police had
used batons and physical force against the women and the children,
who were in the front line of the attack and in direct contact with
the officers concerned.
- The
first applicant stated that he had raised the matter of police
brutality while in custody, but that the judge had not given any
weight to his statements. Referring to reports by human rights
organisations, the applicants further maintained that it had been a
practice in the former Yugoslav Republic of Macedonia for judges and
prosecutors to ignore situations in which there had been clear and
numerous indications that the prosecution's case was based on a
forcibly extracted confession. They also pointed out inconsistencies
in the police records about who had been detained at the police
station.
- The
applicants further criticized the State's policy regarding medical
assistance in cases such as the present one. They considered it
unethical for medical staff to be put in a position in which they had
to decide whether to provide services based on the guilt or innocence
of those concerned. They considered it particularly striking that the
police officers had received the necessary medical care and had been
issued with medical certificates.
- The
applicants submitted that the police had violated their own rules as
they had failed to provide medical treatment to those who had
suffered injuries as a result of the use of force. In addition, they
stressed the inconsistency of the Government's assertion that those
arrested or involved in the fight had not requested medical
assistance while at the same time admitting that the third and fifth
applicants had done so.
- Concerning
the third applicant's alleged participation in the disturbance and
the injuries she had sustained, it was argued that it could not be
sufficiently established that she was the pregnant woman to whom the
eyewitnesses had referred in their statements. The applicants
maintained that there may have been more than one pregnant woman in a
group of sixty to eighty people.
- They
disagreed with the Government's assertion that the second and fifth
applicants could have sustained their injuries only as a result of
the police intervention to overpower the resistance put up by the
group as, according to the police records, they had also been taken
into police custody. Even assuming that all the applicants, except
the third one, had sustained some injuries before being taken into
police custody, it did not exclude the possibility that they had been
severely ill-treated during their interrogation at the police
station.
- Concerning
the procedural obligation under Article 3, the applicants stated that
the prosecuting authorities of the respondent State had failed to
take any action to identify the perpetrators or to investigate their
allegations of ill-treatment. As the public prosecutor had not
formally rejected their criminal complaint, they had been unable to
take over the prosecution as subsidiary complainants. Moreover, they
argued that the national rules concerning the internal investigation
of the use of force had not been observed, as no commission had been
set up within the Ministry to consider the incident even though force
had been used “against several persons”.
- In
their additional observations, they referred to the report of the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment of Punishment (CPT/Ing (2006)36), which indicated
similar problems related to allegations of police brutality. The ERRC
also provided a report concerning the treatment of Roma in the former
Yugoslav Republic of Macedonia and the alleged lack of effective
investigations into allegations of ill-treatment.
2. The Court's assessment
(a) Substantive limb: alleged inhuman and degrading
treatment
(i) General principles
- The
general principles which are relevant for the present case and emerge
from the Court's jurisprudence, were set out in the Jasar case
(see the Jasar judgment, cited above, §§ 46-49).
(ii) Application of these principles in
the present case
- The
Court notes as undisputed that some guests in the restaurant,
including some of the applicants, were involved in a fight in the
street with Z.S., a former wrestling champion and a fitness
instructor with the local police. The first and fourth applicants
were subsequently convicted for taking part in the fight (see
paragraph 31 above). It was that fight that called for the police
intervention.
- The
parties provided two different accounts of the events related to the
police intervention. According to the applicants, shortly after the
fight started, about ten police officers arrived and started to beat
the guests in the restaurant. The second, fourth and fifth applicants
were taken to the police station where the beatings allegedly
continued. The next day, in response to an earlier police summons,
the first applicant went to the police station where he was allegedly
beaten by about six police officers. Persons who were injured in the
police raid were allegedly refused medical treatment at the local
hospital as they had no money to pay for the services.
- According
to the Government's version of events, after the police had received
a phone call about the fight, three officers arrived at the scene. As
a large group of around sixty to eighty Roma people gathered around
and prevented them from arresting the first applicant, another patrol
of five officers arrived. Several shots were fired in the air as the
crowd started to throw stones, bottles and other objects at them and
the police van. Despite the warning, the crowd continued with the
attack. The officers concerned then used rubber batons to try to
restore order.
- Having
regard to the material before it, the Court finds as incontrovertible
that no medical certificate was issued in the names of the applicants
which would provide more details about any injury, its cause and
origin. The applicants' explanation was that they had been refused
treatment because of a lack of funds to pay for the medical services
(see paragraph 9 above). The Government's statements were rather
inconsistent in this respect: firstly, they admitted that under the
national legislation, a person injured as a result of his or her
involvement in a criminal offence was required to pay for medical
treatment (see paragraph 50 above); secondly, they averred that none
of the persons involved in the incident, including the second and
fifth applicants, had requested medical assistance (see paragraph 13
and 49 above); thirdly, that the fifth applicant had been refused
medical assistance after it had been verified that his injuries would
not endanger his life or health (see paragraph 50 above); and
fourthly, they confirmed that a pregnant woman had been admitted and
examined in the hospital after the incident, but that the name of a
different person had been entered in the medical records (see
paragraph 14 and 49 above). They further maintained that, even
assuming that that record had referred to the third applicant, she
must have sustained the only established injury, bruising to her
head, while actively participating in the disturbance. In this latter
context, the Court notes that different versions were provided as to
how that person had reached the hospital (see paragraphs 8, 14 and 22
above).
-
The Court further observes that the first applicant did not seek
medical assistance (see paragraph 36 above). In the course of the
criminal proceedings against him, the fourth applicant repeatedly
stated that he had been hit by Z.S. in the chest and around the eye.
The parties submitted different explanations as to any injury which
might have been sustained by the second and fifth applicants. From
the photographs of the applicants' injuries (see paragraph 11 above),
the Court cannot establish under what circumstances they were
inflicted.
-
The Government also submitted that the police had had recourse to
physical force to suppress the disturbance and to restore order.
Despite the inconsistency related to the number, neither party
contested that gunshots had been fired in the air to disperse the
crowd (see paragraphs 12, 16, 23 and 52 above). It is also
undisputable that a large group of people and police officers were
involved in the incident. According to the police records about the
incident, stones, bottles and other items had been thrown at the
officers involved and a police car had been damaged. Under those
circumstances, the Government stated that the use of force had been
absolutely necessary, justified and proportionate. However, it is to
be noted that no charges were brought against the applicants for
their alleged involvement in the disturbance.
-
Having regard to the inconsistencies mentioned above and the lack of
firm evidence of the applicants' alleged injuries, the Court finds no
cogent elements that would support the applicants' allegations of
ill-treatment. Even assuming that, as the Government maintained,
certain injuries could have been sustained as a result of the police
intervention, the Court cannot establish, on the basis of the case
file as it stands, whether the force used by the police to suppress
the alleged disorder was excessive. Furthermore, the Court finds it
unsubstantiated that the applicants had sustained such injuries that
a refusal to treat them without payment at the hospital in itself
amounted to a violation of Article 3.
-
In conclusion, since the evidence before it does not enable the Court
to find beyond reasonable doubt that the applicants were ill-treated
whether at scene or while in police custody, or that the force used
against them was excessive, 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.
(b) Procedural limb: alleged lack of an effective
investigation
(i) General principles
- 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 an 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.
- The
investigation into serious allegations of ill-treatment must be
thorough. That means that the authorities must take all reasonable
steps available to them to secure the evidence concerning the
incident, including, inter alia, eyewitness testimony and
forensic evidence. 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.
- The
investigation must be expeditious. In cases under Articles 2 and 3
of the Convention, where the effectiveness of the official
investigation is at issue, the Court has often assessed whether the
authorities reacted promptly to the complaints at the relevant time
(see the Jasar judgment, cited above, §§ 55-57, and
the references cited therein.
(ii) Application of these principles in
the present case
-
The Court notes that the applicants' lawyer lodged a criminal
complaint about the alleged police brutality nine days after the
incident. He invited the public prosecutor to take statements from
witnesses and the aggrieved parties, and produced photographs of the
applicants' injuries and a medical certificate as evidence. In these
circumstances, the Court is satisfied that that complaint raised at
least a reasonable suspicion that the applicants' alleged injuries
could have been caused by the police as claimed by the applicants,
which warranted an investigation by the authorities in conformity
with the requirements of Article 3 of the Convention. As such, the
public prosecutor was under a duty to investigate whether an offence
had been committed. However, he did not take any investigative
measures after receiving the criminal complaint, apart from
requesting that the Ministry make additional inquiries (see paragraph
40 above). He took no steps to identify the officers involved in the
police raid, nor is there any indication that any witnesses or police
officers concerned were questioned about the incident. No
consideration was made as to what possible justification there might
have been for the physical force used against the applicants. In
conclusion, the public prosecutor took no steps to find any evidence
confirming or contradicting the account given by the applicants.
- In
addition, the inactivity of the public prosecutor prevented the
applicants from taking over the investigation as subsidiary
complainants and denied them access to subsequent challenges in the
context of the criminal proceedings. The applicants are still barred
from taking over the investigation as the public prosecutor has not
yet taken a decision to dismiss the complaint (see the Jasar
judgment, cited above, § 59).
-
Against this background, the Court concludes that there was no
investigation into the applicants' claim that they had sustained the
alleged injuries at the hands of the police. Thus, the Court finds
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 applicants complained that they had no effective remedy against
the failure of the national authorities to investigate effectively
their allegations of ill-treatment in contravention of Article 13 of
the Convention. 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.”
-
In the additional observations, the applicants submitted that the
lack of an effective remedy in the domestic legal framework against
the inaction of the State's investigatory mechanism constituted a
separate violation under Article 13 read in conjunction with Article
3 of the Convention. The public prosecutor's failure to respond to
the criminal charges brought before him prevented them from having
access to court proceedings in order to obtain redress for the
violation of their rights under Article 3 of the Convention.
- 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 the Jasar
judgment, cited above, § 62).
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
applicants claimed 20,000 euros (EUR) each in respect of
non-pecuniary damage for the pain, physical injuries, frustration,
anguish and helplessness which they had suffered as a result of the
ill-treatment the police officers had inflicted on them when they had
been in a very vulnerable position, in fact at their mercy. They also
referred to the flaws in the ensuing investigation by the national
authorities. The applicants further referred to their Roma origin,
maintaining that their case was not unique in the former Yugoslav
Republic of Macedonia. Finally, they asked the Court to take the
alleged systemic nature of the harm into account when making its
assessment of the non-pecuniary damage and stated that awarding a
higher sum would influence the respondent Government to take a
stronger stand against police ill-treatment of Roma in future.
-
The Government contested the applicants' claims as excessive and
ill-founded. They stated that the applicants had not been ill-treated
by the police, but that the recourse to force had been necessary and
justified in order to restore the order disturbed by a large group of
Roma, including the applicants. Although the criminal proceedings had
been stayed for a long time without any result, the Government
invited the Court to consider that the eventual finding of a
violation would constitute in itself sufficient compensation for any
damage. As an alternative, they asked the Court to assess the amount
of just satisfaction on the basis of its case-law and the economic
situation of the State.
- 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 applicants' allegations of police brutality. It has
found 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.
Making an assessment on an equitable basis, it awards each applicant
the sum of EUR 3,000, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicants claimed EUR 3,363.5 for the costs and expenses incurred by
the ERRC in the proceedings before the Court. These included the fees
for one ERRC staff attorney who carried out 59.7 hours of legal work
on the case, and expenses for her travelling to the former Yugoslav
Republic of Macedonia. A schedule of fees and a time sheet were
produced for the activities of the ERRC between 20 January and 10
March 2006 and between 11 and 15 May 2007. No invoice was provided
for the travelling expenses. The ERRC has requested that the fees be
paid directly to them, as the applicants had not incurred any
financial cost during the proceedings, and provided their bank
account details.
-
The Government stated that the amounts claimed by the ERRC were
excessive and not properly substantiated by any details or supporting
documents.
- 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 are reasonable as to
quantum (see Editions Plon v. France, no. 58148/00, § 64,
ECHR 2004-IV). In the present case, and noting that the
applicants have been successful in only part of their application the
Court awards the sum of EUR 2,000 to cover its costs and expenses.
These amounts are to be paid into the bank account of the ERRC.
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
- 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
applicants' allegations of ill-treatment by the police;
- Holds that it is not necessary to consider the
applicants' complaint about the lack of an effective remedy under
Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros) to each applicant in respect of
non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of cost and expenses, payable
into the bank account of the applicants' representative in Hungary,
ERRC;
(iii) any
tax that may be chargeable to the applicants on the above amounts;
(b) 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;
5. Dismisses the remainder of the applicants' claim for
just satisfaction.
Done in English, and notified in writing on 10 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
