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FIRST
SECTION
CASE OF V.D. v. CROATIA
(Application
no. 15526/10)
JUDGMENT
STRASBOURG
8 November
2011
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 V.D. v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly Kovler, President,
Nina
Vajić,
Peer Lorenzen,
Elisabeth
Steiner,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Julia Laffranque, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15526/10) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Mr V.D. (“the
applicant”), on 22 February 2010.
- The
applicant was represented by Ms L. Horvat, a lawyer practising in Z..
The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. StaZnik.
- On
10 September 2010 the President of the First Section decided to
communicate the complaint concerning the substantive and procedural
aspects of Article 3 of the Convention as well as the complaint under
Article 13 of the Convention to the Government. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Z.
- The
applicant is suffering from schizophrenia.
1. Criminal proceedings against the applicant
- On
31 August 2006 the Z. no. 4 Police Station lodged a criminal
complaint with the Z. County State Attorney’s Office
(Zupanijsko drZavno odvjetništvo u Z.) against the
applicant. The relevant part of the complaint reads:
“On 11 August 2006 after a physical conflict with
an unknown person at about 12.20 p.m. in front of an apartment
building in Z., ... the suspect D.V. went into the lift of that
building with his mother M.D. and son I.D. to go to a flat on the
third floor, owned by his mother, and said to his son: ‘Everybody
downstairs is shouting ‘Call the police.’ The police will
come now, and it is better that I kill you rather than the police,
they will kill me and then we will lie dead next to each other!’.
When they entered the flat the suspect D.V. began to carry out his
threat and grabbed his son I. by the neck and started to squeeze it,
in order to strangle him. The suspect’s mother pushed him away
and he fell against the refrigerator ... while the boy ran to another
part of the flat.
After a telephone call, at 12.14 p.m. officers of the Z.
no. 4 Police Station, S.P. and V.B., went to the scene ...where they
waited for the ambulance ... and then entered the flat. Police
officers S.P. and V.B. approached the suspect who made an attempt to
assault S.P. with both hands and bit him on the left arm ... after
which both officers put the suspect in an elbow lock, pushed him on
to the floor and handcuffed him. However, the suspect continued to
resist by trying to kick the officers, but they overcame him and he
was taken by ambulance to the Hospital ‘Z.’ ... where he
was placed in the closed section of the psychiatric ward.”
- The
investigation in respect of the applicant on the charge of attempted
murder of his son was opened on 6 September 2006 in the Z. County
Court (Zupanijski sud u Z.).
- On
3 October 2006 an investigating judge of the Z. County Court heard
evidence from police officer V.B. The relevant part of the written
record reads:
“... on the date in question in August 2006 I
joined the policemen who had already arrived at a flat at 10 Š.
Street. The first information I received as a police officer was that
there had been a fight in front of the building, but I do not know
who was involved in it, and that the fight had continued inside the
flat.
When I entered the flat there were two policemen there.
I saw the accused sitting on a sofa, visibly upset. His parents were
next to him. When the ambulance arrived he refused to go with them
and when a doctor told him to stand up, he attempted to hit my
colleague S.P. who blocked the blow, but the accused then bit him on
the arm, drawing blood, and let go of him only when he was pushed on
to the floor.
This was the first time I had intervened at that
address. The whole incident lasted for quite a long time, because we
first spent about twenty minutes talking to him.
To a question from the Deputy Z. County State Attorney I
can say that, apart from those previously mentioned there was one
younger person, probably the accused’s wife, and a child at the
scene. His wife screamed for help and said that he had gone mad.
To a question from the defence lawyer I cannot answer
whether I noticed traces of any injuries on the accused that day. He
is a particularly strong person, he banged his head on the ground and
the bed and I did not notice traces of any injuries on him after the
intervention. Well, I have just remembered that he bled from his
mouth because he banged his head all the time; he continued to act
crazily even after [he had received] an injection of tranquillisers
and despite being tied up. We, the police officers, were not alone
with him at any time ...”
- On
the same day the investigating judge heard evidence from police
officer S.P. The relevant part of the written record reads:
“... on the date in question I came for an
intervention about a mentally ill person who had to be taken for
hospitalisation and who lives in Š. Street no. 10 in Z.. When
I arrived to the flat I found his parents, a young man and I think
also some children in one room, but I did not focus my attention on
that, as well as four of my colleagues from the police station.
I talked with the accused for at least twenty-five
minutes during which time he stood up from a sofa, sat down, wanted
to have his blood pressure checked and was dressed only in his
underwear. From my previous experience I knew that I had to treat him
gently. After that a doctor together with a team of the medical
emergency services arrived and he had to be persuaded to go with
them. Just then he stood up and when I touched him on the shoulder he
pushed me and I held his right arm. He resisted me but we managed to
push him on to the floor when he bit me on the left arm. The bite was
through my shirt. I bled only a little because he did not bite off
[any flesh]. A colleague helped me then to overcome him.
... the accused sustained a mild haematoma when we
pushed him on to the floor, I believe.
To a question from the Z. County Deputy State Attorney I
can say that the accused bit his tongue.
To a question from the defence lawyer I can say that
when I entered the flat the accused was not injured. ...”
- On
5 October 2006 the investigating judge heard evidence from T.V., the
applicant’s common-law wife. The relevant part of the written
record reads;
“... His father brought a hospitalisation order
from a doctor, which I put into my backpack and when we were standing
in front of the apartment building where V.’s parents live, he
told me that he did not wish to go to a hospital and ... managed to
take the backpack from me. We were both pulling at the backpack and
the next moment, probably thinking that he wanted to hit me, some
people from a nearby bar started to insult him telling him that he
was a fool and to let me go and then a scuffle ensued between those
people and V. V.’s shirt was torn. ...
After that the grandmother went into the flat with V.
and the boy; I do not know where V.’s father was at the time. I
stayed out of the building ... The police arrived after five to ten
minutes. During that time I waited outside and I called an ambulance.
When the police arrived I went into the building with them and was
approaching the door of the flat when V.’s father came out
carrying the boy ... and telling me that the grandmother feared that
he was going to strangle him. ...
After that I went to another room and played music on a
computer to distract the child’s attention from the noise. I
did not see what happened then. I waited for the arrival of the
ambulance and the police and I heard awful screaming from V. ...”
- On
the same day the investigating judge heard evidence from the
applicant’s father, Ve.D. The relevant part of the written
record reads:
“... I approached the window and I saw V. and his
wife, both pulling at a backpack. I decided to go downstairs and when
I came out I saw a group of people from a nearby bar, probably
thinking that V. was trying to take her backpack and not knowing that
they were spouses, intervening in their conflict. V. made a move with
his hand towards them and they towards him, and they pushed each
other. V.’s shirt was torn. I intervened and separated them.
... When I came back to the flat I found V. there with
my wife and the boy. ...
V. sat on a sofa in the small room and the boy was
there. The police arrived after two to three minutes and I did not
see V. do anything to the child.
To a question from the judge I can say that the
grandmother did not tell me that V. had done anything to the child. I
left the room where V. was for a short while so it is possible that I
did not see everything that happened. That means that I was not in
the room when the policemen tied V. up. ... When the policemen
arrived, V. told them that they were his friends but I did not see
him bite one of them. There were four policemen and later on I saw
that one of them had been bitten but I did not see at what exact
moment it happened. It is difficult for me to say how long they
stayed in the flat. While they were in the flat, a doctor arrived
with an ambulance. She gave V. an injection of tranquillisers.
During the intervention V. bit his tongue. I think that
was because of the pain he suffered from being kicked by the police
officers when they intervened. When the police arrived V. was on the
sofa and after that he was on the floor, which is where I saw him
when I went into the room. The floor was covered in blood.”
- On
the same day the investigating judge heard evidence from the
applicant’s mother, M.D. The relevant part of the written
record reads:
“... I saw through the window the two of them [the
applicant and his wife] on the grass in front of the building,
pulling at her backpack ... Some customers in a nearby bar were
watching the incident. They probably did not know that they were
spouses but thought that V. was attacking a passer-by and they
approached them to help T. V. and these people pushed each other and
my husband separated them. After that I went out with my grandson and
approached my son who took me by one hand and my grandson by another.
We went back to the building and went into the lift, V. was telling
us to hurry up because the police would come and strangle us. He took
the boy by the back of the neck with his hand, hurrying him to enter,
in fear of the police. At that moment we were in the hall. I was
shaking with fear that V. would do something to one of us. We stayed
in the flat like that for a short while. V. sat on a sofa and the boy
went into our bedroom to watch television. Immediately after that
someone rang the bell and I saw the policemen. Four policemen arrived
and one of them had a large wooden rod.
When the policemen entered my son told them that they
were his friends. Whether he swore at them after that I do not know
but I saw that all of them jumped at him. In a moment he was
handcuffed and his legs were tied. After that one of the policemen
ordered me to leave the room and I went to the hall where my husband
was, so I did not see my son bite one of the policemen. After that I
heard terrible screams from my son. I could not listen to that so I
went into the room and saw my son lying on the wooden floor covered
in blood. I saw that he was injured because he was bleeding from the
mouth. His left eye was injured. That is what I saw and I suppose
that the policemen were kicking V. because he had injuries to his
legs, but I did not see them do it.”
- On
27 November 2006 charges of attempted murder were brought in the Z.
County Court against the applicant. At a hearing held on 28 March
2007 a forensic expert gave her evidence. The relevant part of the
written record reads:
“The medical documentation ... shows that the
defendant V.D. sustained injuries in the form of bruises to his head
on 11 August 2006, laceration of the tongue and haemorrhage of both
eyes. I also saw photographs of V.D. taken at the R. Hospital ... The
medical documentation and the photographs show that V.D. had
sustained haemorrhaging in both eyes, more pronounced in the left
eye. Such an injury is typically caused by blows with a hard object
and force of low to medium intensity, and in this area it is usually
caused by punches (blows with a fist). ... These injuries were caused
with at least two separate uses of force. The tongue laceration was
caused by him biting it himself and amounts to a bodily injury. It is
not possible to establish why he bit his tongue. The medical
documentation also describes lacerations of his chest and upper right
leg. ... Such injuries are typically caused by dragging an object
sideways along the surface of the skin or by blows from the side, but
the conclusion that they were caused by being rubbed against an
obstacle or surface cannot be ruled out.
To a question from defence counsel I can say that I
cannot rule out kicking as the cause of the haemorrhage of both eyes
I cannot rule out the injuries being caused in this way to V.D. while
he was lying on the floor.
Some of the injuries, such as the lacerations, could
have been caused by falling down and hitting the wooden floor, but I
am absolutely certain that the injuries to the eye area could not
have been caused in this way.
...”
- On
the same day the applicant was found guilty of the attempted murder
of his son and attempting to prevent an official from carrying out
his duties. Because he was mentally ill, compulsory admission to a
psychiatric institution for a period of six months was ordered.
1. Criminal proceedings against S.P. and V.B.
- On
5 January 2007 the applicant’s parents lodged a criminal
complaint with the Z. Municipal State Attorney’s Office
(Općinsko drZavno odvjetništvo u Z.) against two
police officers, S.P. and V.B., alleging that on 11 August 2006 they
had caused grave bodily injuries to the applicant. The complaint
stated that on that day the applicant came to visit his parents, with
T.V. and their son I.D. After the applicant had had a minor argument
with T.V. and their son in front of the apartment building where his
parents lived, someone had called the police.
- Four
police officers had arrived at the applicant’s mother’s
flat and handcuffed the applicant and then tied his legs, all in the
presence of the applicant’s parents. The mother had been in the
same room, while the father had been standing in the hallway. The
police officers had then ordered the mother to leave the room, closed
the door and beaten the applicant. The mother had heard the applicant
screaming, had gone into the room and seen the applicant lying on the
floor bleeding from his mouth and eye area. He had been kicked in the
head and his eyes were bulging.
- An
ambulance had arrived at the scene and transported the applicant to a
hospital.
- The
medical documentation of 11 August 2006, drawn up at the Surgical
Clinic of the Medical University in Z., shows that the applicant had
a head contusion, tongue laceration, haematoma around both eyes,
haemorrhage of both eyes and lesions on the neck and right shoulder.
- The
witness statements given before the investigating judge in the
criminal proceedings against the applicant were included in the case
file (see above, §§ 8-12).
- On
24 April 2007 the Z. Municipal State Attorney’s Office
dismissed the criminal complaint on the ground that the injuries the
applicant had sustained were self-inflicted; he had bitten his tongue
and banged his head on the floor. The decision firstly reiterated the
facts from the police report of 31 August 2006 (see above, paragraph
7). The relevant part of the decision reads:
“A report drawn up by the General Criminal
Department of the Criminal Police Division of the Z. Police
Department, shows that police officers S.P and V.B. were sent to the
scene ... in order to assist a medical team in securing the
compulsory hospitalisation of V. When they approached him he
assaulted S.P. and bit him on the left arm, after which S.P. and V.B.
pushed him to the floor and tied him up. However, he continued
pushing with his legs, trying to kick the officers. While he was
being pushed to the floor and tied up, because of his confused state
V.D. repeatedly banged his head on the floor and bit his tongue,
which caused multiple lacerations of his tongue and haematoma of the
face and head. ...
During the preliminary inquiry T.V, M.D. and V.D. were
interviewed and the medical documentation concerning I.D., S.P. and
V.D. was consulted.
T.V., the common-law wife of V.D. ... said that ...
during the night of 10 and 11 August 2006 he had become aggressive,
would not let her and their son I. sleep, had pulled out telephone
wires, insulted her, had mood swings, and banged the door. The next
day his behaviour had continued to be bizarre and he had been angry
for no reason and had had hallucinations, so she had tried to talk to
him to calm him down but had not succeeded. When they were standing
in front of the apartment building where his mother lived, V. had
grabbed her backpack and pulled at it, scratching her face, which was
seen by some passers-by, who tried to stop him. He had started a
fight with them, throwing punches, and had taken his clothes off and
run down the street. At one moment she had seen him throwing their
son’s things out of the window and heard his mother shouting
‘Help!’ from the window and calling the police. When the
police had arrived she had gone into the flat with them and had seen
V.’s mother holding the boy in her arms; he was naked and
bleeding from the leg. She had not seen V., but had heard a police
officer calling other police officers for help because V., whose
hands and legs had been tied and who had been given three injections,
had not calmed down.
M.D., the mother of V.D., said that ... after V. and T.
had been pushing each other in front of the building, she, V. and the
boy . ... had gone into the flat, where V. had grabbed his son by the
neck and started strangling him. She had pushed him hard, and he had
fallen against the refrigerator, which made him let go of the boy.
After the police had arrived she had heard her son screaming and had
seen him bite a policeman on the shoulder, after which they overcame
him, handcuffed him and took him to hospital.
The father of V.D., Ve.D., was not present when the
events described above took place, but said that after the police
officers had arrived at their flat they had started using force
against his son, handcuffed him and soon after that the ambulance had
also arrived. V. had resisted them and they could not have given him
an injection and only after the police officers had tied him up did
the doctor manage to give him two injections of tranquillisers. ...
The medical documentation in the case file shows that on
the occasion in question I.D. had sustained bodily injuries caused by
attempted strangulation.
The same medical documentation shows that S.P. was
injured by a bite from V.D.
It also shows that V.D. sustained bodily injuries during
the incident and that he is suffering from mental illness.
... a judgment by the Z. County Court finding that V.D.
had ... committed the acts amounting to the criminal offence of
attempted murder of a child and an attempt to prevent an official
from carrying out his duties ... was also consulted.
Assessment of the above shows that on 11 August 2006
V.D., owing to permanent mental illness, schizoid-affective psychosis
of mixed type, committed the criminal offence of attempted aggravated
murder in respect of his minor child I.D., an act he was prevented
from carrying out by the prompt reaction of the Z. Police Department
officers. In view of his grave mental illness, the undisputed fact
that he was resisting legal arrest by pushing with his legs and arms,
trying to hit the police officers, biting his tongue and banging his
head on the floor, I consider that the injuries he had sustained were
self inflicted, or inflicted by lawful use of force.
In view of the above, it has been established that the
use of force by the police officers was justified and lawful in
accordance with Article 32 of the Criminal Code and that they did not
commit the alleged offence or any other criminal offence liable to
State prosecution.”
- On
21 May 2007 the applicants’ parents lodged an indictment in the
Z. Municipal Court against two of the police officers, S.P. and V.B.,
alleging that on 11 August 2006 they had caused grave bodily injuries
to the applicant. They alleged that four police officers had come to
their flat following a call by an unknown person. When they arrived
at the flat the applicant was sitting on a sofa. When one of the
police officers started speaking to him the applicant stood up. The
police officers immediately started beating him. All four police
officers very quickly pushed the applicant on to the sofa, cuffed his
hands behind his back and then tied his legs together. Both parents
were present. However, once the applicant had been tied up, the
police officers ordered the parents to leave the room and closed the
door. The parents heard the applicant screaming and crying and after
some time the mother opened the door of the room and saw the
applicant lying on the floor, bleeding from his mouth and eyes, eyes
bulging and with blood all over him.
- The
medical examination had revealed that the applicant had bitten his
tongue and had bruises to the eyes, torso, abdomen and hands. Part of
his tongue was later removed.
- The
parents argued that these injuries could not have been
self-inflicted, because if what the police had said was true, that
the applicant had banged his head on the floor, then he would have
had injuries primarily to his nose and forehead and not his eyes.
Furthermore, banging his head against the floor could not explain the
numerous haematomas on his torso, hands and abdomen.
- The
injuries had caused the applicant permanent health damage; the sight
in his left eye was reduced, he could not speak properly and had
trouble swallowing food. His hands were partly numb.
- The
parents also submitted their list of evidence, including medical
documentation and photographs of the applicant taken soon after the
incident showing his injuries, and requested that witnesses be heard
and also that a medical expert report be drawn up to explain how the
injuries were caused.
- On
27 July 2007 counsel for the applicant submitted a fresh indictment,
which complied in form and content with the statutory requirements
under the Code of Criminal Procedure. In substance, he reiterated the
allegations from the previous indictment.
- On
3 March 2008 the Z. Municipal Criminal Court (Općinski
kazneni sud u Z.) ordered an investigating judge to take the
following investigative actions: interview the two police officers;
interview the victim; interview the applicant’s parents; obtain
a forensic expert report to establish how the injuries were caused
and their gravity; take other evidence if necessary.
- A
hearing scheduled for 15 July 2008 before an investigating judge of
the Z. County Court (istraZni sudac Zupanijskog suda u Z.) was
adjourned until 28 July 2008 because the indicted policemen wished to
be legally represented.
- At
a hearing held on 24 September 2008 V.B. stated that on 11 August
2006 he and his colleague, S.P., had intervened at the applicant’s
mother’s flat. They had seen the applicant speaking
incomprehensibly and then biting S.P. on the arm. In order to
restrain him, the police officers used a take-down technique and
positioned the applicant face down on the floor. He continued to
resist and they tied a sheet around his ankles. The applicant had
then banged his head against the floor and bitten his tongue. Then
the ambulance had arrived.
- S.P.
remained silent.
- On
10 March 2009 the Z. County Court dismissed the indictment submitted
by the applicant and his parents as ill-founded. It held that the
applicant’s injuries had been self-inflicted and that the
policemen had not used unnecessary force. The relevant part of the
decision reads:
“... the victim’s wife T.V. and his father
V.D. gave concordant statements and confirmed that the victim had
resisted arrest and that the police officers had tied him up and that
he had received an injection of tranquillisers after which he had
been transferred to a hospital, while his mother said that the police
officers had beaten the victim more than was necessary.
...
The evidence established, and in particular the defence
presented by the second suspect, do not show that there is a
reasonable suspicion that the actions of the first and second
defendants amounted to a criminal offence from Article 99 2 of the
Criminal Code. This panel considers that the first and second suspect
did not hit the victim during his arrest to the extent that they
caused him grave bodily injury but their use of force was lawful and
justified, and they did not put at risk or infringe his physical
integrity. This panel concludes that ... the victim ... owing to his
mental illness, resisted lawful arrest by pushing with his legs and
arms, attempted to bite a police officer and banged his head on the
floor, and thus caused himself injuries which resulted in a haematoma
on his face; he also bit his tongue, which was later removed owing to
necrosis of tissue...
- On
9 April 2009 the applicant’s parents lodged an appeal.
- On
10 June 2009 the Supreme Court (Vrhovni sud Republike Hrvatske)
upheld the first-instance decision. The relevant part of the decision
reads:
“... on the basis of all documents in the case
file, the Supreme Court ... finds that the conclusion of the
first-instance court contained in the impugned decision that the
facts did not reveal a reasonable suspicion that the suspects S.P.
and V.B., acting in the described manner ..., committed the criminal
offence of inflicting grave bodily injury from Article 99 § 2 of
the Criminal Code is correct.
The case file ... reveals that on 11 August 2006 the
suspects S.P. and V.B., in their capacity as officers of Z. no. 6
Police Station, after physical conflict between the victim and
unknown persons in front of the apartment building where his mother
lives, were helping a medical team with the compulsory
hospitalisation of the victim, after he had grabbed his minor child
by the neck and started strangling him, but had been prevented by his
mother, who pushed him, whereupon he fell against the refrigerator
and let go of the child. During the attempt to take him to hospital,
the victim assaulted S.P. and bit him on the left arm. Then the
suspects, in order to break his resistance, put him in an elbow lock,
pushed him on to the floor and handcuffed him. During that ... the
victim, owing to his confused state caused by his mental illness,
repeatedly banged his head on the floor and bit his tongue, which
caused him lacerations to the his tongue and haematomas on the face
and head.
...
In view of the above, the Supreme Court ... finds that
the first-instance court correctly, on the basis of the case file,
assessed that the available evidence did not indicate that there was
a reasonable suspicion that the suspects had committed the criminal
offence of inflicting grave bodily injury under Article 99 § 2
of the Criminal Code. The case file does not show that the suspects
inflicted grave bodily harm on the victim and caused permanent injury
to an important organ and caused permanent disfigurement, which are
crucial elements of the criminal offence of inflicting grave bodily
harm ... The case file shows that all the grave bodily injuries were
self-inflicted by the victim ...”
- In
respect of a constitutional complaint lodged by the applicant’s
parents on 16 September 2009 the Constitutional Court (Ustavni sud
Republike Hrvatske) on 15 December 2009 declined to examine the
case.
2. Criminal proceedings against D.K. and T.S.
- On
3 August 2007 a counsel for the applicant submitted a criminal
complaint against the two other policemen, D.K. and T.S., who had
also allegedly been involved in beating up the applicant.
- On
13 August 2007 the Z. Municipal State Attorney’s Office
dismissed the criminal complaint, on the grounds that the injuries
the applicant had sustained were self-inflicted and that he had
resisted the police intervention by biting his tongue and banging his
head on the floor.
- On
30 August 2007 the applicant filed an indictment in the Z. Municipal
Court against D.K. and T.S., alleging that on 11 August 2006 they had
caused him grave bodily injuries by hitting and kicking him on the
head, back, torso and legs. Until 9 April 2010, when the applicant’s
counsel enquired about the progress of the proceedings, no action had
been taken in respect of the applicant’s indictment.
- On
17 November 2010 a judge of the Z. Municipal Court forwarded the case
file to the Z. County Court for an investigation to be carried out.
- At
a hearing held on 13 December 2010 before an investigating judge of
the Z. County Court both D.K. and T.S. remained silent. The
proceedings appear to be pending.
II. RELEVANT DOMESTIC LAW
- The
relevant articles of the Croatian Constitution (Ustav Republike
Hrvatske) provide as follows:
Article 23
“No one shall be subjected to any form of
ill-treatment ...”
- The
relevant parts of the Criminal Code (Kazneni zakon, Official
Gazette no. 110/1997) provide:
Article 8
“(1) Criminal proceedings in respect of criminal
offences shall be instituted by the State Attorney’s Office in
the interest of the Republic of Croatia and its citizens.
(2) In exceptional circumstances the law may provide for
criminal proceedings in respect of certain criminal offences to be
instituted on the basis of a private prosecution or for the State
Attorney’s Office to institute criminal proceedings following
[a private] application.”
Article 32
“No criminal offence is committed when an
official, on the basis of his or her authority vested in him or her
by a statute applies force in accordance with the law.”
GRAVE BODILY INJURY
Article 99
“Whoever inflicts bodily injury on another or
impairs another’s health shall be sentenced to imprisonment for
a term of no less than three months and not exceeding three years.”
TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING
TREATMENT
Article 176
“A public official, or another person acting at
the instigation or with the explicit or tacit acquiescence of a
public official, who inflicts on another person pain or grave
suffering, whether physical or mental, for such purposes as obtaining
from him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of
having committed, or intimidating or coercing him or a third person,
or for any reason based on discrimination of any kind, shall be
sentenced to imprisonment for a term of one to eight years.”
- The
relevant part of the Code of Criminal Procedure (Official Gazette
nos. 62/2003 – Zakon o kaznenom postupku) provides as
follows:
Article 2
“(1) Criminal proceedings shall be instituted and
conducted at the request of a qualified prosecutor only. ...
(2) In respect of criminal offences subject to public
prosecution the qualified prosecutor shall be the State Attorney and
in respect of criminal offences to be prosecuted privately the
qualified prosecutor shall be a private prosecutor.
(3) Unless otherwise provided by law, the State Attorney
shall undertake a criminal prosecution where there is a reasonable
suspicion that an identified person has committed a criminal offence
subject to public prosecution and where there are no legal
impediments to the prosecution of that person.
(4) Where the State Attorney finds that there are no
grounds to institute or conduct criminal proceedings, the injured
party as a subsidiary prosecutor may take his place under the
conditions prescribed by this Act.”
Articles
47 to 61 regulate the rights and duties of private prosecutors and of
injured parties acting as subsidiary prosecutors. The Criminal Code
distinguishes between these two roles. A private prosecutor (privatni
tuZitelj) is an injured party who brings a private prosecution in
respect of criminal offences for which such prosecution is expressly
prescribed by the Criminal Code (these are offences of a lesser
degree). The injured party as a subsidiary prosecutor (oštećeni
kao tuZitelj) takes over criminal proceedings in respect of
criminal offences subject to public prosecution where the relevant
prosecuting authorities, for whatever reason, have decided not to
prosecute. Pursuant to Article 47, where a prosecution is brought
privately the charge must be lodged with the relevant authority
within three months of the date the person bringing the prosecution
learns of the offence and the identity of the perpetrator.
Article 48
“(1) A request to prosecute shall be lodged with
the relevant State Attorney’s Office and a private prosecution
with the appropriate court.
(2) Where the injured party has lodged a criminal
complaint ... he or she shall be considered to have thereby lodged a
request to prosecute.
(3) Where the injured party has lodged a criminal
complaint or a request to prosecute but the [competent authorities]
establish that the criminal offence in question should be prosecuted
on the basis of a private prosecution, the criminal complaint or the
request to prosecute shall be treated as a timely private prosecution
if it has been submitted within the time-limit prescribed for
[bringing] a private prosecution...”
Pursuant
to Article 55(1), the State Attorney is under a duty to inform the
injured party within eight days of a decision not to prosecute and of
that party’s right to take over the proceedings, as well as to
instruct that party on the steps to be taken.
Article 173
“(1) A criminal complaint shall be lodged with the
relevant State Attorney in writing or orally.
...”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been ill-treated by the police and
that there had been no effective investigation into his allegations
of ill-treatment. He relied on Article 3 of the Convention, which
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. The parties’ submissions
- The
Government argued that the applicant had not exhausted domestic
remedies. As regards police officers D.K. and T.S. the application
was premature, since the criminal proceedings instituted by the
applicant against them were still pending.
- While
it is true that the criminal proceedings against police officers S.P.
and V.B. had been concluded, the applicant could have lodged an
administrative claim against the State seeking damages as well as a
civil claim for damages against the State and the officers
themselves.
- The
applicant argued that he had exhausted all available remedies.
2. The Court’s assessment
(a) General principles
- The
Court reiterates that under Article 35 § 1 of the
Convention it may only deal with an application after all domestic
remedies have been exhausted. The purpose of Article 35 is to afford
the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are
submitted to it (see, for example, Mifsud v. France (dec.)
[GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation
to exhaust domestic remedies requires an applicant to make normal use
of remedies which are effective, sufficient and accessible in respect
of his Convention grievances. To be effective, a remedy must be
capable of remedying directly the impugned state of affairs (see
Balogh v. Hungary, no. 47940/99, § 30,
20 July 2004).
- The
Court further reiterates that in cases where an individual has an
arguable claim under Article 3 of the Convention, the notion of an
effective remedy entails on the part of the State a thorough and
effective investigation capable of leading to the identification and
punishment of those responsible (see Selmouni v. France [GC],
no. 25803/94, § 79, ECHR 1999-V). The Court has held on
many occasions that this requirement cannot be satisfied solely by
instituting civil proceedings (see, among others, Krastanov v.
Bulgaria, no. 50222/99, § 60, 30 September 2004).
(b) Application of these principles in the
present case
(i) Civil law remedies
- As
regards the Government’s argument that the applicant could have
lodged a claim for damages, either against the State or against the
officers concerned, the Court has repeatedly held that the procedural
obligation of the State under Article 3 to conduct a thorough,
official, effective and prompt investigation into allegations of
ill-treatment cannot be substituted by payment of damages. The Court
confirms that a civil action is not capable of making any findings as
to the identity of the perpetrators and still less of establishing
their responsibility. Furthermore, a Contracting State’s
obligation under Article 3 of the Convention to conduct an
investigation capable of leading to the identification and punishment
of those responsible in cases of ill-treatment might be rendered
illusory if, in respect of complaints under that Article, an
applicant were required to exhaust an action leading only to an award
of damages (see Parlak and Others v. Turkey (dec.), nos.
24942/94, 24943/94 and 25125/94, 9 January 2001; Okkalı v.
Turkey, no. 52067/99, § 58, ECHR 2006 XII (extracts);
and Taymuskhanovy v. Russia, no. 11528/07, § 75, 16
December 2010).
- Therefore,
a civil action for damages is not a remedy that the applicant in the
present case was required to avail himself of.
(ii) Criminal law remedies as regards the
proceedings concerning officers D.K. and T.S.
- As
regards the objection that the criminal proceedings against officers
D.K. and T.S. were still pending, the Court notes first that these
proceedings were instituted by the applicant as a private party after
the State Attorney’s Office had refused to prosecute. The Court
has already found in similar cases that having been informed of the
criminal complaint the State Attorney was under an obligation to
ensure that the preliminary investigation was carried out, that the
evidence was obtained and that, if evidence against alleged
perpetrators was sufficient, criminal proceedings were pursued
against them (see Matko v Slovenia, no. 43393/98, § 95,
2 November 2006, and Stojnšek v. Slovenia, no.
1926/03, § 79, 23 June 2009).
- However,
the Court also observes that the Croatian legal system envisages a
possibility for the injured party to act as a subsidiary prosecutor.
In respect of criminal offences for which the prosecution is to be
undertaken by the State Attorney’s Office, either of its own
motion or upon a private application, where the Office declines to
prosecute on whatever ground, the injured party may take over the
prosecution as a subsidiary prosecutor.
- Although
the Court considers that in respect of the allegations of
ill-treatment by State officials the injured parties are not required
to pursue the prosecution of the accused officers on their own by
lodging a bill of indictment, this being the responsibility of the
State Attorney who is certainly better, if not exclusively, equipped
in that respect (see Matko, cited above, § 90, and
Stojnšek, cited above, § 79), it also considers
that where the national system allows for such a possibility and the
injured party makes use of it these proceedings shall also be taken
into account.
- Since
the applicant in the present case did pursue the prosecution of the
two officers in question, the Court will reserve its comments on the
proceedings which followed when assessing the merits of the complaint
under the procedural aspect of Article 3 of the Convention. It
follows that the Government’s objection in this respect should
be joined to the merits.
- The
Court further considers that the applicant’s complaints under
Article 3 of the Convention are not manifestly ill-founded within the
meaning of Article 35 § 3(a) of the Convention. Moreover,
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant argued that he had been tortured, or at least submitted to
inhuman and degrading treatment by the four police officers in
question. They had removed both his parents from the room, handcuffed
him, tied his legs with a sheet, pushed him to the ground and then
kicked him until he lost consciousness. From this he had acquired
serious injuries.
- The
State authorities had not conducted an effective investigation into
his allegations of police brutality. They had failed to establish all
relevant circumstances in order to assess whether the force used
against him had been necessary.
- The
Government argued that the applicant suffered from schizoid psychosis
and had not been having the required therapy. Thus, he presented a
danger to himself and to those around him. As regards the incident at
issue, he had, in a confused state, attacked the police officers, who
had only used necessary force to calm him down. They had had to
handcuff him. However, he had continued to push with his legs, banged
his head on the floor and bitten his tongue. All the other medical
complications had been the result of these injuries. The use of force
had lasted for a short while and had only been aimed at defence of
the officers and preventing the applicant from causing himself
further injuries.
- In
the proceedings that ensued, the authorities had established all
relevant circumstances and concluded that the applicant’s
injuries had been self-inflicted. The forensic report established
that the injuries to the applicant’s face had been caused by
blows with a fist. They had been caused before the arrival of the
police, when the applicant had been in a fight in front of the
building where his parents lived.
2. The Court’s assessment
(a) General principles
- As
the Court has stated on many occasions, Article 3 enshrines one of
the most fundamental values of democratic societies. It prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim’s
behaviour (see Iwańczuk v. Poland, no. 25196/94, §
49, 15 November 2001, and E. and Others v. the United Kingdom,
no. 33218/96, § 88, 26 November 2002).
- The
Court reiterates 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 nature and context of the
treatment, its duration, its physical and mental effects and, in some
instances, the sex, age and state of health of the victim (see
Costello-Roberts v. the United Kingdom, 25 March 1993, §
30, Series A no. 247-C, and A. v. the United Kingdom, 23
September 1998, § 20, Reports 1998-VI).
- Treatment
has been held by the Court to be “inhuman” because, inter
alia, it was premeditated, was applied for hours at a stretch and
caused either actual bodily injury or intense physical and mental
suffering (see Labita v. Italy [GC], no. 26772/95, §
120, ECHR 2000-IV). Treatment has been considered “degrading”
when it was such as to arouse in its victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them and
possibly breaking their physical or moral resistance (see Hurtado
v. Switzerland, 28 January 1994, opinion of the Commission, §
67, Series A no. 280, and Wieser v. Austria, no. 2293/03,
§ 36, 22 February 2007).
- The
Court reiterates that where an individual makes a credible assertion
that he has suffered treatment infringing Article 3 at the hands of
the police or other 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, among other authorities, Labita, cited above,
and Boicenco v. Moldova, no. 41088/05, § 120, 11 July
2006).
- The
investigation must also be effective in the sense that it is capable
of leading to a determination of whether the force used by the police
was or was not justified in the circumstances (see Kaya v. Turkey
judgment of 19 February 1998, Reports 1998-I, § 87).
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
et seq.). 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
et seq., 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).
- For an investigation to be effective, it may generally
be regarded as necessary for the persons responsible for and carrying
out the investigation to be independent from those implicated in the
events (see, for example, Barbu Anghelescu v. Romania, no.
46430/99, § 66, 5 October 2004). This means not only a lack
of hierarchical or institutional connection but also independence in
practice (see Boicenco, cited above, § 121).
(b) Application of these principles in the
present case
(i) Severity of treatment
- The
Court notes that the medical documentation shows that on 11 August
2006, after the police intervention in his parents’ flat, the
applicant sustained head contusion, tongue laceration, haematomas
around both eyes, haemorrhage of both eyes and lesions on the neck
and right shoulder (see above, paragraph 18).
- In
view of the allegations that these injuries were a consequence of
police brutality, the Court considers that these injuries were
sufficiently serious to reach the “minimum level of severity”
under Article 3 of the Convention.
(ii) Substantive aspect of Article 3 of
the Convention
- The
Government claim that the injuries to the applicant’s eye area
were inflicted before the police intervention, during the fight the
applicant had had in front of the building where his parents live,
and that the other injuries were self-inflicted by the applicant
banging his head on the floor and biting his tongue during the police
intervention. The police officers had at no time used excessive force
against the applicant.
- At
his juncture the Court considers it appropriate to reiterate, as
regards the use of force by the police, that in defusing situations,
maintaining order, preventing offences, catching alleged criminals
and protecting themselves and other individuals, police officers are
entitled to use appropriate means, including force. Nevertheless,
such force may be used only if indispensible and must not be
excessive (see Ivan Vasilev v. Bulgaria, no. 48130/99, §
63, 12 April 2007, with further references). Recourse to physical
force which has not been made strictly necessary by the individual’s
own conduct diminishes human dignity and is in principle an
infringement of the right set forth in Article 3 of the Convention
(see Kuzmenko v. Russia, no. 18541/04, § 41, 21 December
2010).
- In
the instant case it is undisputed that the applicant attacked the
police officer S.P. and bit him on the arm. During the proceedings
before the national authorities the police officers denied that they
had hit, kicked or punched the applicant at any time. They claimed
that they had only handcuffed him, tied his legs and pushed him on to
the floor, and that he had banged his head on the floor.
- As
to the Government’s assertion that all the injuries to the
applicant’s head and face, including those in the eye area, had
been inflicted during his fight in front of the apartment building
where his parents lived, prior to the arrival of the police, the
Court notes that the policemen who intervened on the occasion in
question all said that the applicant had had no injuries when they
arrived. Furthermore, in their account of the fight between the
applicant and “people who came from a nearby bar” the
applicant’s common-law wife and father did not mention that the
applicant was hit in the face but only that they were pushing each
other and that the applicant’s shirt was torn.
- The
national authorities made no effort to identify those involved in the
fight with the applicant in order to establish the relevant facts.
- Against
this background the Court concludes that the applicant had no
injuries in the eye area (or elsewhere) when the police officers
arrived. However, after the police intervention in the applicants’
parents’ flat the applicant was diagnosed with haemorrhages in
the eye area and several other injuries. Hence, these injuries
occurred during the police intervention.
- Allegations
of ill-treatment must be supported by appropriate evidence. 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 (Labita,
cited above, § 121). The Court has held on many occasions that
where a person is injured while in detention or otherwise under the
control of the police, any such injury will give rise to a strong
presumption that the person was subjected to ill-treatment (Corsacov
v. Moldova, no. 18944/02, § 55, 4 April 2006; and Bursuc
v. Romania, no. 42066/98, § 80, 12 October 2004). It is
incumbent on the State to provide a plausible explanation of how the
injuries were caused, failing which a clear issue arises under
Article 3 of the Convention (Selmouni v. France [GC], no.
25803/94, § 87, ECHR 1999 V; and Ribitsch, cited
above, § 34).
- Where
domestic proceedings have taken place, it is not the Court’s
task to substitute its own assessment of the facts for that of the
domestic courts and, as a general rule, it is for those courts to
assess the evidence before them (Klaas v. Germany, 22
September 1993, § 29, Series A no. 269). Though the
Court is not bound by the findings of domestic courts, in normal
circumstances it requires cogent elements to lead it to depart from
the findings of fact reached by those courts (see Klaas, cited
above, p. 18, § 30). Where allegations are made under
Articles 2 and 3 of the Convention, however, the Court must apply a
particularly thorough scrutiny (see, mutatis mutandis,
Ribitsch, cited above, p. 24, § 32).
- In
the present case the Court is in particular mindful of the evidence
given by a forensic expert at a hearing held in the Z. County Court
on 28 March 2007 in the criminal proceedings against the
applicant. She said that the injuries such as those the applicant had
had in the eye area were caused by blows inflicted with a hard
object, typically a fist. These injuries could have also been caused
by kicking if the applicant had been somewhere low down or lying on
the floor. She categorically excluded that these injuries could have
been caused by the applicant’s falling and hitting the wooden
floor (see above, paragraph 13).
- Thus,
the version of events given by the police officers, who said that the
applicant had hurt himself by banging his head against the floor, run
contrary to the conclusions of the forensic expert. The Court notes
however that, the national authorities accepted the account by the
police officers implicated and made no comments as to the findings of
the forensic expert.
- Consequently,
regard being had to the applicant’s allegations of
ill-treatment, corroborated by the medical reports, and to the
circumstances in which the applicant sustained the injuries, the
Court considers that the Government have not furnished any convincing
or credible arguments which would provide a basis to explain the
manner in which the applicant had sustain these injuries.
- The
Court therefore concludes that the State is responsible under Article
3 on account of the inhuman and degrading treatment to which the
applicant was subjected by the police officers.
(iii) Procedural aspect of Article 3 of
the Convention
- The
Court notes that two separate sets of proceedings were instituted in
respect of the officers involved. The first set of these proceedings
concerned officers S.P. and V.B. and the second set officers D.K. and
T.S.
(α) Proceedings in respect of officers
S.P. and V.B.
- In
the proceedings concerning officers S.B. and V.B. the Z. Municipal
State Attorney’s Office dismissed the criminal complaint on the
ground that the injuries the applicant had sustained were
self-inflicted when he had bitten his tongue and banged his head on
the floor. This conclusion was based on the interviews conducted by
the police evidence given by the officers in question and medical
reports, as well as the judgment finding that the applicant had
attempted to strangle his son and had resisted the police officers
who were carrying out their duty.
- However,
the Deputy State Attorney made no assessment of the forensic report
commissioned for the purposes of the criminal proceedings against the
applicant (see above, paragraph 13) despite the fact that this was
the only report which established the manner in which the injuries
the applicant sustained had been caused, and thus was crucial
evidential material in assessing whether the officers in question
used excessive force on the applicant.
- Likewise,
in all further proceedings concerning the implicated officers, no
comment was made in respect of the findings of the forensic expert in
the criminal proceedings against the applicant. Instead, the national
authorities uncritically accepted the statements by the officers that
the applicant’s injuries were self-inflicted. They made no
further efforts to establish the exact manner in which the applicant
sustained his injuries and to answer the question whether the force
used by the officers had been excessive by ordering a fresh forensic
report which would focus on these issues.
(β) Proceedings in respect of officers
D.K. and T.S.
- As
regards the proceedings against officers D.K. and T.S., the Court
firstly reiterates that the applicant was not obliged to bring
criminal proceedings against them as a subsidiary prosecutor –
it was the duty of the State Attorney’s Office to do so.
Nevertheless, on 30 August 2008 the applicant did lodge an indictment
against these officers, in accordance with the rules of the Code on
Criminal Procedure. However, the national authorities did nothing for
more than three years, until 17 November 2010, when the case file was
forwarded to the Z. County Court for an investigation to be carried
out, which is currently pending. In view of such a long delay it
cannot be said that this investigation complied with the requirements
of Article 3.
(γ) Conclusion
- Against
the above background the Court considers that in the present case
there has also been a violation of the procedural aspect of Article 3
of the Convention in respect of both sets of proceedings against the
four police officers implicated and dismisses the Government’s
objection as to the exhaustion of domestic remedies
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained he had no effective remedy in respect of his
Convention complaints. He relied on Article 13 of the Convention
which reads:
“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.”
A. Admissibility
- The
Court considers that this complaint is closely linked to the one
concerning the procedural aspect of Article 3 of the Convention and
must also therefore be declared admissible.
B. Merits
-
The Court notes that the applicant was able to lodge a criminal
complaint against the officers concerned. The issue of effectiveness
of the proceedings that ensued has already been addressed in the
context of Article 3 of the Convention. In view of its findings under
Article 3 of the Convention, the Court considers that there is no
need to examine further the complaint under Article 13 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Articles 6 and 14 of the Convention
that the domestic proceedings were ineffective and that he had been
discriminated against.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. It follows that it is inadmissible
under Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.
IV. 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 50,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government deemed the sum claimed excessive.
- Having
regard to all the circumstances of the present case, the Court
accepts that the applicant suffered non-pecuniary damage which cannot
be compensated for solely by the finding of a violation. Making its
assessment on an equitable basis, the Court awards the applicant EUR
23,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable to him.
B. Costs and expenses
- The
applicant also claimed EUR 8,793.24 for the costs and expenses
incurred before the domestic courts and the Court.
- The
Government submitted that the applicant could not ask for the costs
and expenses incurred before the national courts and also deemed the
sum claimed excessive.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers that the costs the applicant incurred in connection with
the criminal complaints and the criminal proceedings before the
national authorities against the officers concerned were essentially
aimed at remedying the violation of the Convention alleged before the
Court, and that the costs incurred in respect of these proceedings
may be taken into account in assessing the claim for costs (see
Scordino, cited above, § 28, and Medić
v. Croatia, no. 49916/07, §
50, 26 March 2009). Regard being had to the information in its
possession and the above criteria, the Court awards the applicant EUR
8,500 for the costs and expenses incurred in the domestic proceedings
and before the Court, plus any tax that may be chargeable to the
applicant on that amount.
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
- Decides to
join
to the merits
the Government’s objection as to the exhaustion of domestic
remedies concerning the criminal proceedings in respect of officers
D.K. and T.S. and rejects it;
- Declares the complaints concerning the
substantive and procedural aspects of Article 3 of the Convention as
well as the complaint under Article 13 of the Convention admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of the
substantive aspect of Article 3 of the Convention;
- Holds that there has been a violation of the
procedural aspect of Article 3 of the Convention;
- Holds that there is no need to examine the
complaint under Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Croatian kunas at the rate applicable
at the date of settlement:
(i) EUR
23,000 (twenty-three thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
8,500 (eight thousand five hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 8 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
