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SECOND
SECTION
DECISION
AS
TO THE ADMISSIBILITY OF
Application no.
40485/08
by Radmila PETROVIĆ
against
Serbia
The European Court of Human Rights (Second Section),
sitting on 4 January 2012 as a Chamber
composed of:
Françoise
Tulkens, President,
Dragoljub Popović,
Isabelle
Berro-Lefèvre,
András Sajó,
Guido
Raimondi,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Stanley Naismith,
Section Registrar,
Having regard to the above application lodged on 1 August 2008,
Having deliberated, decides as follows:
THE FACTS
- The applicant, Ms Radmila Petrović,
is a Serbian national who was born in 1950 and lives in Belgrade.
The applicant’s son, Mr Dejan Petrović
(“D.P.”), was born in 1973 and died on 15 February 2002.
The present application concerns his death.
A. The circumstances of the case
- The facts of the case, as submitted by the applicant,
may be summarised as follows.
1. Events surrounding the death of the applicant’s
son
- At about 9.30 p.m. on 16 January 2002 certain police
officers of the Vračar Police Department of the Belgrade Police
(OUP Vračar; hereinafter “the Vračar
Police Department”) came to the applicant’s home
and took D.P. into custody on suspicion of having committed
aggravated robbery. He was kept in the police station overnight.
- The following morning at around 9 a.m., the applicant’s
home was searched by two male and one female police officers looking
for a supposedly hidden sum of money (700 euros (EUR)) from the
robbery. As they failed to find any money, two of them left the house
and, soon thereafter, came back together with D.P., requesting him to
disclose where he had hidden the money. After a further unsuccessful
search, they left the house at around 11 a.m. The applicant’s
son was allegedly visibly distressed and very pale, and his mouth was
yellowish. On the way out, he turned to his mother and said “Call
a lawyer, I have done nothing, they will kill me”.
- At about noon, police officers informed the applicant’s
family that D.P. had broken a window and jumped from the second floor
of the police premises, and that he had been transferred to the
emergency unit of the Serbian Clinical Centre in Belgrade.
- Upon their arrival at the emergency unit, the applicant
and her husband (D.P.’s father) were informed that the hospital
had admitted an unidentified and severely injured patient in a
comatose state, who had jumped from the second floor of a building.
He was undergoing surgery which could last for several hours.
- While awaiting the end of the surgery, the applicant’s
husband went to the premises of the Vračar Police Department. He
was shown the broken window that his son had allegedly jumped
through. The applicant claims that her husband was initially informed
that their son, who had been handcuffed and in his winter jacket, had
been alone in the office when he had jumped through the window, but
was later told that their son had broken away in the presence of
three inspectors.
- It appears that D.P. was in a comatose state while in
hospital, except between 26 and 28 January 2002, when he gave some
signs of awareness and demonstrated some motor function.
- According to the medical certificate issued by the
Serbian Clinical Centre, on 15 February 2002 at 4.30 a.m. D.P. died
from sepsis and cardiac arrest.
- Following a request by the investigating judge (M.P.)
of the District Court in Belgrade, the post-mortem examination of
D.P.’s body was carried out on 18 February 2002 at 9 a.m. by
two doctors, Sl.K. and V.D.J., of the Institute for Forensic Medicine
of the Faculty of Medicine in Belgrade. The autopsy report stated
that D.P.’s death was violent and caused by damage to vital
brain centres and complications thereafter. It further concluded that
the damage to D.P.’s vital brain centres, as well as his rib
and leg fractures and other external and internal bodily injuries
described in the report, were “inflicted with a blunt and heavy
object (tupim, teškim i zamahnutim predmetom)”.
It appears that the autopsy did not include any toxicological
analysis or photographs.
2. Internal preliminary disciplinary proceedings
- A report on the questioning of the three police
officers who had been present during the relevant incident (S.K.,
D.K. and N.K.), was drawn up, apparently in the framework of an
internal disciplinary inquiry (prethodni disciplinski postupak)
conducted within the Vračar Police Department on 17 January
2002. This report is not available to the Court, but parts of its
contents are quoted in a medical report of 2004 (see paragraph 19
below). According to the report, all three police officers provided
concurring statements to the effect that D.K. had entered the office
first, followed by D.P., and then his two other colleagues. As soon
as they had entered the office, while the police officers were
approaching their desks, D.P. had suddenly wrestled himself free,
rushed forward, broken both window panes and jumped out into the
courtyard.
3. The inspection of the scene of the incident on 17
January 2002
- Following a telephone call from the Belgrade police
department for investigative and operational affairs (Odelenje za
uviđajno-operativne poslove SUP Beograd - hereinafter
“DIOA”), the investigating judge on duty (V.M.), from
an unspecified court, arrived at the Vračar Police Department at
an unspecified time to inspect the scene of the incident. A second
lieutenant (D.Z.) from the DIOA and a crime scene technician from the
Vračar Police Department were also present during the
inspection.
- According to the investigating judge’s report on
the scene of the incident (zapisnik o uviđaju), upon his
arrival at the Vračar Police Department, police officers had
shown him office number 24 and a broken window pane, in the left
corner of the window, closest to the floor. As it was a double,
white, wooden window, and as he had been informed that D.P. had
jumped out through the window by breaking the glass, he had examined
the pane in question. As he had seen no blood stains, hair or any
other trace of this nature, he had asked two police officers who were
present whether they had seen any traces, in order to inspect them,
but they had both responded in the negative.
The investigating judge had noted only one broken window pane, as
well as pieces of glass between the two panes and on the floor below
the inside window. In the snow-covered courtyard of the police
building, into which the suspect D.P. had allegedly fallen, he had
noticed footprints below the window. He had also noticed trodden snow
of an undetermined shape, but had not found any blood stains or other
physical traces.
He had requested the crime technician who was present to draw a
sketch of the scene and to photograph it, as well as to measure the
size of the window pane. The sketch of the scene of the incident and
the photographs were an integral part of the investigating judge’s
report.
- In the one-page report on the forensic inspection of
the scene of the incident (izvestaj o kriminalističko-tehničkom
pregledu lica mesta), the crime scene technician noted the
following: (a) as regards the biological traces, the investigating
judge had not requested that fingerprints be lifted and collected;
(b) as regards the other evidence and objects found, broken glass had
been noticed in the left lower part of the external and internal
frame of the window (with dimensions of 0.50 x 0.55 and 0.45 x 0.50
metres, respectively). Both window frames had been found closed.
Pieces of broken glass had been found between the panes of the window
and on the windowsill. The window was nine metres from the ground.
The trodden snow and pieces of glass had been found 1.5 metres away
from the building’s wall. Other traces had not been found.
4. Investigative measures taken following the
applicant’s criminal complaints
- On 28 January 2002 the applicant’s husband
lodged a criminal complaint on behalf of the family with the Third
Municipal Public Prosecutor’s Office in Belgrade. The complaint
was lodged against a police officer (D.K.), on the ground that there
was a reasonable suspicion that he had forcibly extracted a statement
from D.P. In the complaint it was claimed that the police officers
had been using force against D.P., in order to extract a statement
and had severely ill-treated him to such an extent that he would
probably not have been able to bear it anymore, so he had jumped out
of the office window. The complaint included an allegation that the
police officers had failed to disclose D.P.’s identity and all
the circumstances of the incident to the emergency medical team.
- It appears that at some point, the case was
transferred to the District Public Prosecutor’s Office in
Belgrade (hereinafter “the DPPO”).
- It also appears that on an unspecified date, the
applicant’s husband extended the criminal complaint to include
two other police officers (N.N. and S.K.).
- On an unspecified date the DPPO (represented by the
public prosecutor D.L.) requested a commission of forensic experts
from the Institute for Forensic Medicine of the Faculty of Medicine
to express their opinion on which other causes,
apart from the fall from the window, could have explained D.P.’s
injuries.
- In their expert opinion dated 13 September 2004 the
medical experts stated, on the basis of the autopsy report and other
medical files, that a person of D.P.’s height and constitution
could have “squeezed through” (got through with some
effort) the window in question. They further maintained that D.P.’s
fatal injuries could have been caused by his jump from the window and
his falling on a hard surface. Finally, they concluded that no other
injuries, lacerations, scratches or haematomas had been described in
the autopsy report or in the hospital’s files of such
characteristics, type or location as to indicate that they had been
inflicted by any means other than the one mentioned above.
- On 1 November 2004, without seeking additional
information, the DPPO rejected the criminal complaint on the ground
that there was no reasonable suspicion that the suspects had
committed the alleged crime. At the same time, the applicant’s
husband was notified that he could pursue a subsidiary criminal
prosecution within eight days of the date this decision had been
served on him by filing a request for an investigation (zahtev za
sprovodjenje istrage).
- On 16 February 2005 the applicant and her husband
lodged a new and more detailed criminal complaint with the DPPO
against the police officers (P.N., N.K., D.K. and S.K. for causing
severe bodily harm (teske telesne povrede), extracting a
statement by coercion (iznudjivanje iskaza) and ill-treatment
in the discharge of their official duties (zlostava u sluzbi)
- for the relevant domestic law, see paragraph 33
below). The complaint expressed the applicant’s and her
husband’s doubt that D.P. had jumped out of the office of his
own motion, and their suspicion that the suspects had thrown their
son’s corpse out of the window in order to conceal previous
ill treatment. The complaint pointed out certain contradictions
and shortcomings in the previous investigative measures and reports,
and proposed that numerous investigative activities be carried out in
order to adequately investigate the circumstances of D.P.’s
controversial death. In particular, the applicant and her husband
requested the DPPO to question P.N., N.K., D.K. and S.K. as accused
persons; to summon and examine several witnesses, including the
complainants, police officers who had been present during the
inspection of the crime scene, the doctors from the emergency unit
and the medical staff who had found and transferred D.P. to the
hospital; to carry out a reconstruction of the incident; and to
examine again the medical files and experts’ reports in order
to clarify the remaining forensic inconsistencies.
- On 22 March 2005 the DPPO in Belgrade rejected that
criminal complaint for the same reasons relied on in its decision of
November 2004, and repeated its notification about the possibility of
a subsidiary prosecution. That decision was served on the applicant
on 8 April 2005.
5. The applicant’s pursuit of a subsidiary
prosecution
- On an unspecified date the applicant attempted to take
over the prosecution as a subsidiary prosecutor, by filing a request
for an investigation (zahtev za sprovođenje istrage) with
the District Court in Belgrade and, subsequently, a request to
broaden the scope of the investigation (zahtev za proširenje
istrage). She relied on and reaffirmed the assertions she had
made in her second criminal complaint (see paragraph 21 above).
- Further to a request by the investigating judge (B.P.)
of the District Court of 25 March 2005, on 15 January 2006 two
forensic pathologists (Dr Z.S. and Dr N.M.) provided an expert
opinion. Relying on the previous medical and autopsy reports, they
found that the location, distribution and types of injuries observed
on D.P. had indicated that they were severe and life-endangering, and
that they could undoubtedly have been the result of the fall from the
second floor, but only through an open window. In particular, taking
into account the circumstances of the incident, such as D.P.’s
constitution, his winter clothes and the fact that he had been
handcuffed, the size of the window pane in issue and the position of
the furniture and the window in the office, it would have been
practically impossible for D.P. to have broken through the window and
jumped.
- It appears that on 18 April 2006 the investigating
judge held a hearing in order to interview the suspects.
- On an unspecified date the investigating judge refused
to open the investigation sought by the applicant (izrazio
neslaganje sa zahtevom), and referred the case to a three-judge
criminal panel, in accordance with Article 243 § 7 of the
Criminal Procedure Code.
- On 17 July 2006 the three-judge panel of the District
Court endorsed the investigating judge’s findings, relying on
the case file, namely the “concurring statements of the
suspects” and the findings and opinions of the forensic experts
in 2004 and 2006, “which [were] consistent and indicate[d] that
all the injuries of the deceased could have been caused at the same
time by his fall from a height of nine metres to a surface”.
The applicant was instructed that she could appeal against that
decision within three days from the date on which the decision was
served on her and she did so, reiterating her previous arguments.
- On 30 November 2006 the Supreme Court of Serbia
rejected the applicant’s appeal as unfounded. In reaching that
decision by reference to the expert commission’s forensic
findings of 2004, it upheld the lower court’s reasoning as
clear, conclusive and convincing. That decision was served on the
applicant on 20 February 2007.
- On 7 March 2007 the applicant submitted a motion
to the Republic Public Prosecutor’s Office, urging
him to lodge (with the Supreme Court) a request for the protection of
legality (zahtev za zaštitu
zakonitosti) on her behalf.
- On 27 August 2007 the Republic Public Prosecutor
informed the applicant that on that same day he had accepted her
initiative and had lodged a request for the protection of legality
against the decision of 30 November 2006, submitting, in
particular, that: (a) the court had based its finding on evidence
that had been challenged by the applicant and, which, according to
him, had been flawed by inconsistencies; (b) the court had dismissed
the applicant’s appeals without addressing her arguments; and
(c) the collection and examination of evidence had been superficial,
which had resulted in the incorrect and implausible conclusion
reached by the court.
- On 8 February 2008 the Supreme Court of Serbia
rejected the Prosecutor’s request. Having regard to the case
file and the hearing in the presence of the three suspects and their
lawyer, the court stated the following: (a) the forensic experts had
not ruled out that the victim might have inflicted the injuries on
himself while breaking the window and falling on a hard surface; (b)
no evidence had shown that the accused had caused the victim any
bodily harm by any other means; (c) according to the relevant
evidence, there was no reasonable suspicion that the suspects had
committed the alleged crimes to an extent which would justify the
opening of criminal proceedings; and, lastly, (d) the impugned
decision had not ultimately precluded the opening of criminal
proceedings if a victim as prosecutor submitted new evidence which
had not existed or had been unknown at the time of his or her
previous request for an investigation.
6. Civil proceedings against the State
- It appears that in December 2002 the applicant and her
husband brought a civil action against the respondent State in the
First Belgrade Municipal Court (“the Municipal Court”),
seeking damages in respect of D.P.’s ill-treatment and death
while in police custody. It also appears that in July 2007 the
Municipal Court established that D.P. had sustained injuries and died
while in police custody, and that therefore the respondent State
should compensate the applicant. It awarded each plaintiff (the
applicant and her husband) 1,000,000 Serbian dinars (RSD) for
non-pecuniary damage in that respect.
B. Relevant domestic law
1. Criminal Code of the Republic of Serbia 1977
(Krivični zakon Republike Srbije; published in the 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 and 42/89, as well as in the
Official Gazette of the Republic of Serbia - OG RS - 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)
- The relevant Articles of this Code read as follows:
Article 53 § 3
“Whoever commits the crime of severe bodily harm
resulting in death shall be punished by imprisonment of from one to
twelve years.”
Article 65
“(1) Whoever acting in an official
capacity uses force, threats, or other inadmissible means ... with
intent to extract a confession or another statement from an accused,
a witness, an expert witness or another person, shall be punished
with imprisonment of from three months to five years.
(2) If the extraction of a confession or a
statement is aggravated by extreme violence or if the extraction of a
statement results in particularly serious consequences for the
accused in the criminal proceedings, the offender shall be punished
by a minimum of three years’ imprisonment.”
Article 66
“A public official who in the discharge of his
duties ill-treats another person, inflicts on him severe physical or
mental suffering, intimidates, insults or generally treats another
person in a manner offending his humanity shall be punished with
imprisonment of from three months to three years.”
2. Criminal Procedure Code 2001 (Zakonik o krivičnom
postupku; published in the Official Gazette of the Federal Republic
of Yugoslavia – OG FRY – no. 70/2001; amendments
published in OG FRY no. 68/2002 as well as the Official Gazette of
the Republic of Serbia – OG RS – nos. 58/04, 85/05,
115/05, 46/06, 49/07, 122/08, 20/09 and 72/09)
- The relevant domestic provisions are contained in
Articles 19, 20, 46, 61, 235, 242 and 243 of the Code of Criminal
Procedure (Zakonik o krivičnom postupku, published in the
Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and
68/02).
- In accordance with these provisions, formal criminal
proceedings can be instituted at the request of an authorised
prosecutor. In respect of crimes subject to public prosecution,
including the crimes mentioned above in paragraph 33, the authorised
prosecutor is the public prosecutor himself.
- The public prosecutor’s discretion to decide
whether to press charges, however, is bound by the principle of
legality, which requires that he must act whenever there is a
reasonable suspicion that a crime subject to public prosecution has
been committed. It makes no difference whether the public prosecutor
has learned of the incident from a criminal complaint lodged by the
victim or another person, or indeed even if he has only heard rumours
to that effect.
- The public prosecutor must undertake measures
necessary for the preliminary investigation of crimes subject to
public prosecution and the identification of the alleged
perpetrators. To that end he is vested with the power to co-ordinate
the work of various law-enforcement agencies and other government
bodies.
- If the public prosecutor finds, based on the evidence
before him, that there is a reasonable suspicion that a certain
person has committed a crime subject to public prosecution, he will
request the competent court to institute formal criminal proceedings.
If, however, the public prosecutor decides that there is no basis for
the institution of such proceedings, he must inform the victim of
this decision; the victim then has the right to take over the
prosecution of the case on his or her own behalf, in the capacity of
a “subsidiary prosecutor” within eight days from the
notification of the public prosecutor’s decision.
COMPLAINTS
Relying on Articles 2 and 3 of the Convention, the applicant
complains of the alleged ill-treatment inflicted on her son by the
police officers responsible for his custody which ultimately led to
his death. Under the same head, she further complains about the
failure of the respondent State to conduct an effective investigation
into the circumstances surrounding her son’s death, with the
alleged intention of concealing police abuse.
THE LAW
- The applicant alleged that her son had been ill-treated
and subsequently died as a result of that ill-treatment. The Court
has examined these complaints under Articles 2 and 3 of the
Convention.
Pursuant to the general rules of international law (see 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 (“the critical date”
- see Blečić v. Croatia [GC], no. 59532/00, §
70, ECHR 2006 III; Šilih v. Slovenia [GC], no.
71463/01, § 140, 9 April 2009; and Varnava and Others
v. Turkey [GC], nos. 16064/90, 16065/90,
16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and
16073/90, § 130, ECHR 2009 ...). Since the alleged
events took place in 2002, whereas the Convention entered into force
in respect of Serbia on 3 March 2004, these complaints are
incompatible ratione temporis with the provisions of the
Convention within the meaning of Article 35 § 3.
It follows that this part of the application must be declared
inadmissible in accordance with Article 35 § 4.
- The applicant also complained that no effective
investigation had been conducted into the circumstances of her son’s
ill-treatment and death.
Having examined these complaints under Articles 2 and 3 of the
Convention, the Court considers that it cannot, on the basis of the
case file, determine their admissibility and that it is therefore
necessary, in accordance with Rule 54 § 2 (b) of the Rules of
Court, to give notice of this part of the application to the
respondent Government.
For these reasons, the Court unanimously
Decides to adjourn
the examination of the applicant’s
complaints concerning the failure to investigate the alleged
acts of ill-treatment and the killing of the applicant’s son;
Declares the remainder of
the application inadmissible.
Stanley Naismith Francoise
Tulkens Registrar President
