M.B. v. CROATIA
Inadmissible
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
1. The applicant is a Croatian national, who was born in 1974. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms M. Sršić, a lawyer practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant works as a police inspector in the S. Police Department (Policijska uprava s.) 5. On 15 January 2007, at around 6.00 p.m., the applicant’s wife requested the assistance of the police alleging that she had been beaten by the applicant in their flat in Z. 6. Two police officers from one of the local police stations of the Z. Police Department (Policijska uprava z.) A.H. and M.M., intervened at the scene where they found the applicant and his wife, who had a visible nose injury. She was immediately taken to the hospital where she was diagnosed with a dislocation of septum and superficial nose hematoma. 7. The applicant was requested to undergo an alcohol intoxication test which he refused. The police officers also found in his flat several pieces of hunting firearms which were, together with the applicant’s police handgun, seized from him. The applicant refused to sign the seizure records. 8. At around 6.45 p.m. the applicant was arrested and taken to the police station. 9. According to the applicant, inside the police station he was knocked to the ground and beaten by several police officers for refusing to sign the seizure records. He was in particular ill-treated by the police officers A.H., M.M. and M.D. 10. According to a report of the police officer M.D. of 15 January 2007, at around 7.35 p.m., while he was held in the police station, the applicant started shouting and disobeying the orders to calm down. M.D. therefore approached him and twisted his arm behind his back after which he was handcuffed. 11. On the same day, at around 8.40 p.m., the applicant was examined by a doctor at the police station. The medical examination indicated signs of alcohol intoxication but did not disclose any injuries. 12. On 16 January 2007, at 2.20 p.m., the applicant was again examined by a doctor who found no injuries but indicated that the applicant had low blood sugar. 13. Following the applicant’s release from detention (see paragraph 31 below), on 22 January 2007 he underwent another medical examination in a hospital in S. The examination indicated spinal and abdominal contusions which could, as alleged, relate to a beating dating back one week before. 14. On 15 January 2007 the police officer M.D. reported on the use of force against the applicant to his superiors (see paragraph 10 above). 15. On the same day the Chief of the police station accepted the report finding no irregularities in the use of force. These findings were forwarded to the Chief of the Z. Police Department. 16. On 18 January 2007 the Chief of the Z. Police Department found that the use of force against the applicant had been lawful and justified. 17. This finding was confirmed by the Internal Control Unit of the Ministry of the Interior (Odjel za unutarnju kontrolu Ministarstva unutarnjih poslova) on 8 March 2007. 18. On 18 May 2007 the First-instance Disciplinary Court of the Ministry of the Interior (Odsjek prvostupanjskog disciplinskog suda Z.; hereinafter: the “First-instance Disciplinary Court”) found the applicant guilty on disciplinary charges of inappropriate behaviour and sentenced him to dismissal from service suspended for three months and a twenty percent reduction of salary in the period of two months. This decision was upheld by the Second-instance Disciplinary Court of the Ministry of the Interior (Odsjek drugostupanjskog disciplinskog sudovanja; hereinafter: the “Second-instance Disciplinary Court”) on 13 July 2007. 19. On 18 April 2007 the applicant lodged a criminal complaint with the Z. Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Z.) against the police officers A.H., M.M. and M.D. alleging that they had ill-treated him during his arrest on 15 January 2007. In particular, he submitted that he had been knocked to the ground and then beaten. The applicant also alleged that M.Mi., an on-duty police officer in the police station at the time of the events, had attempted to cover up the ill-treatment by unlawfully instituting minor offences proceedings against him on charges of domestic violence (see paragraph 29 below). 20. On 25 May 2007 the Z. Municipal State Attorney’s Office requested the Z. Police Department to conduct an investigation into the applicant’s allegations. 21. The Z. Police Department submitted a report on 6 July 2007 indicating that they had interviewed the suspects and two witnesses and obtained the relevant documentation concerning the use of force against the applicant. The suspects denied any ill-treatment and one of the witnesses, also a police officer, stated that she had seen the applicant handcuffed and kneeled on the ground. 22. On 12 July 2007 the Z. Municipal State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that there was no evidence that he had been ill-treated as alleged in his criminal complaint. The applicant was instructed that he could take over the criminal prosecution as a subsidiary prosecutor by lodging an indictment before the competent criminal court. 23. Meanwhile, the applicant submitted another criminal complaint before the Z. Municipal State Attorney’s Office against the police officers M.M., A.H., S.G., P.S., M.Mi. and M.P. alleging unlawful search of his flat and their unlawful conduct in the processing of his case related to the alleged domestic violence. 24. On 31 October 2007 the Z. Municipal State Attorney’s Office rejected this criminal complaint as unfounded on the grounds that there was nothing disclosing any unlawfulness in the conduct of the police officers. 25. On 11 December 2007 the applicant lodged an indictment in the Z. Municipal Criminal Court (Općinski kazneni sud u Z.) against the police officers A.H., M.M., M.D. and M.Mi. in connection with his alleged ill-treatment (see paragraph 22 above). 26. On 28 November 2008 the applicant sent a letter to the Z. Municipal State Attorney’s Office expressing his dissatisfaction with the manner in which the circumstances of his criminal complaint had been assessed and with the decision of 12 July 2007 (see paragraph 22 above). 27. The Z. Municipal State Attorney’s Office replied on 5 March 2009 indicating that all the applicant’s objections should be addressed in the criminal proceedings which he had instituted as a subsidiary prosecutor. 28. On 6 April 2010 the Z. Municipal Criminal Court declared the applicant’s indictment inadmissible as he had failed to inform that court of the change of his whereabouts for which reason he could not be summoned to amend the indictment in accordance with the formal requirements of the relevant domestic law. This decision was placed on the Z. Municipal Criminal Court’s public notice board from which it was taken on 26 April 2010. It was thereby considered to be served on the applicant (see paragraph 59 below). 29. On 15 January 2007 the police instituted minor offences proceedings against the applicant in the Z. Minor Offences Court (Prekršajni sud u Z.) on charges of domestic violence, abusive conduct towards the police officers, improper storage of firearms and failure to report the change of his whereabouts. 30. On 16 January 2007 the Z. Minor Offences Court ordered the applicant’s detention. 31. On 22 January 2007 the Z. Minor Offences Court found the applicant guilty on charges of abusive conduct towards the police officers, improper storage of firearms and failure to report the change of his whereabouts. The applicant was fined in total with 5,754 Croatian kunas (HRK) and the seized firearms were confiscated. The proceedings were discontinued in respect of the charges of domestic violence on the grounds of lack of evidence. The applicant was released from detention. 32. On 5 October 2007 the Higher Minor Offences Court (Visoki prekršajni sud Republike Hrvatske), acting as the court of appeal, quashed the part of the first-instance decision by which the proceedings in respect of the charges of domestic violence were discontinued and ordered a retrial, while it upheld the remainder of the first-instance decision. 33. On 16 January 2009 the resumed minor offences proceedings concerning the charges of domestic violence were discontinued on the grounds that they had become time-barred. 34. According to the applicant, on 25 May 2008, at around 2.30 p.m., while celebrating his wedding anniversary with friends, he was attacked and injured by A.H., the same police officer who had been involved in his alleged ill-treatment on 15 January 2007 (see paragraphs 9, 19 and 25 above). He sustained injuries to his head and arms. Thereafter he was arrested and placed in a psychiatric hospital from which he was released on 27 May 2008. 35. According to the documents submitted by the Government, on 25 May 2008, at around 2.30 p.m., the police received an anonymous call informing them that a person was lying on the ground in front of a residential building in Z. The police officers I.Z. and A.H. immediately drove to the address. 36. A report signed by the police officers I.Z. and A.H., dated 25 May 2008, indicates that upon their intervention at the scene they established that the person lying on the ground was the applicant, who was severely intoxicated. He also had visible injuries on his head and arms. Soon afterwards an emergency team joined them and they decided that the applicant should be taken to a hospital for further treatment. During the transfer to the hospital the applicant became aggressive and the police officer A.H. and one of the members of the medical team tried to calm him down. At the hospital, the applicant continued his aggressive behaviour and threatened to kill them all once released. The police officers thus used physical force and the measures of restraint to calm him down. It was decided that he should be taken to another hospital. 37. A medical report of the emergency service of 25 May 2008 indicates contusion of the applicant’s head and superficial injuries on both arms. 38. A medical report prepared on the applicant’s release from the hospital on 27 May 2008 indicates that the applicant sustained his injuries during a fall caused by his intoxication. 39. Following his release the applicant contacted another doctor on 28 May 2008. His report of the same date indicates that the applicant had contusions to the head, and hematomas on the right upper arm and left forearm which could have been caused by blows three days before, as alleged by the applicant. 40. On 25 May 2008 the police officers I.Z. and A.H. reported on the use of force against the applicant to their superiors. They explained that the applicant had been aggressive during his medical treatment in the hospital and that therefore I.Z. grabbed him by the left arm and twisted it behind his back while A.H. did the same thing with his right arm. He was then handcuffed. 41. On the same day the Chief of the police station accepted the report finding no irregularities in the use of force. These findings were forwarded to the Chief of the Z. Police Department. 42. On 28 May 2008 the Chief of the Z. Police Department found that the use of force against the applicant had been lawful and justified. 43. On 25 May 2008 the applicant was indicted in the Z. Minor Offences Court on charges of breach of public peace and order and violent behaviour during his medical examination. 44. The applicant was questioned on the same day and he denied having breached the public peace and order. He stressed that he had only refused to undergo the medical examination to which the police officer A.H. had been forcing him. 45. At a hearing on 7 April 2009 doctor N.L., who received the applicant in the hospital on 25 May 2008 (see paragraph 36 above), stated that the applicant had arrived at the hospital with a head injury and under the influence of alcohol. He also explained that he had not seen any violent behaviour on the part of the applicant. 46. At a hearing on 23 September 2010 the Z. Minor Offences Court questioned the police officer I.Z. who could not remember any details of the event at issue. 47. On the same day the Z. Minor Offences Court acquitted the applicant on the grounds of lack of evidence of his alleged violent behaviour and breach of public peace and order. 48. On 10 June 2008 the S. Police Department instituted disciplinary proceedings against the applicant in the First-instance Disciplinary Court on charges of inappropriate behaviour related to the events of 25 May 2008. 49. At a hearing on 13 November 2008 the applicant submitted that on the critical day he had been with his friends Ž.K., I.B. and M.V., drinking and celebrating his wedding anniversary. When they approached the building where he lived, they came across two police officers one of whom was A.H., who approached him and asked him whether they had settled their dispute. The applicant answered that the competent court would decide about that and at that point A.H. pulled him by the hand as a result of which he fell to the ground and then he lost his conscience. 50. On 22 December 2008 the First-instance Disciplinary Court questioned the applicant’s friends Ž.K., I.B. and M.V. and the police officers I.Z. and A.H. 51. Ž.K. stated that he had seen the applicant in front of the building talking with two police officers and that at one moment one of the police officers, without any particular reason, pulled the applicant by the hand after which he fell to the ground and hurt his head. I.B. and M.V. confirmed this version of the events. 52. In their statements the police officers I.Z. and A.H. denied any ill-treatment reiterating that they had only used force as a result of the applicant’s aggressive behaviour during his medical treatment. 53. On 3 March 2009 the First-instance Disciplinary Court found the applicant guilty on charges of inappropriate behaviour and sentenced him to dismissal from service suspended for twelve months. It considered that the statements of Ž.K., I.B. and M.V. were inconsistent in particular given that an analysis of I.B.’s mobile phone at about the time of the events showed that he had been in another city. It therefore rejected the applicant’s allegations that he had been ill-treated by the police officers I.Z. and A.H. 54. On 23 April 2009 the Second-instance Disciplinary Court upheld the first-instance decision. 55. The applicant then challenged the outcome of the disciplinary proceedings before the Administrative Court (Upravni sud Republike Hrvatske) and on 19 May 2010 the Administrative Court dismissed his complaints as ill-founded endorsing the reasoning of the disciplinary bodies. 56. The applicant further challenged the findings of the disciplinary bodies and the Administrative Court before the Constitutional Court (Ustavni sud Republike Hrvatske). On 13 September 2012 the Constitutional Court upheld the decisions of the lower bodies dismissing the applicant’s complaints as ill-founded. 57. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010 and 85/2010) read as follows: Article 23 “No one shall be subjected to any form of ill-treatment ...” 58. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provided: “(1) Criminal proceedings shall only be instituted and conducted upon the order of a qualified prosecutor. ... (2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences that may 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 may take his place as a subsidiary prosecutor under the conditions prescribed by this Act.” 59. With regard to the service of the court decisions, the relevant part of the Code of Criminal Procedure provided: “... (6) If a party has not reported a change of address to a court or if the party cannot be reached at the address that was previously given to the court or it is evident that he is evading receipt of a decision that is subject to appellate review other than a judgment imposing a sentence of imprisonment, the court shall put the decision on the court’s public notice board. After the lapse of the term of appeal the decision shall become final.” “ ... (2) If ... a decision cannot be served on [a subsidiary prosecutor] to his or her current address, the court shall put ... the decision on the public notice board and, after the laps of eight days from the moment when it was put [on the public notice board] it shall be considered as duly served.” 60. Relevant procedures concerning the submission of and decisions on criminal complaints were provided in Articles 171 to 174, the relevant parts of which read: “(1) All state bodies and legal entities are obliged to report any criminal offence subject to automatic prosecution about which they have been informed or about which they have otherwise learned. ...” “(1) Criminal complaints shall be submitted to the competent State Attorney in writing or orally. ... (3) If a criminal complaint was submitted before a court, the police or a State Attorney who was not competent in the matter, they shall forward the criminal complaint to the competent State Attorney.” “(1) The State Attorney shall reject a criminal complaint by a reasoned decision if the offence in question is not an offence subject to automatic prosecution, if the prosecution is time-barred or an amnesty or pardon have been granted, or other circumstances excluding criminal liability or prosecution exist, or there is no reasonable suspicion that the suspect has committed the offence. The State Attorney shall inform the victim about his decision ... within eight days (Article 55) and if the criminal complaint was submitted by the police, he shall also inform the police. (2) If the State Attorney is not able to ascertain the reliability of the submissions from the criminal complaint, or if he does not have sufficient information to ask for a judicial investigation, or if he has been otherwise informed that an offence has been committed, and particularly if the perpetrator is unknown, the State Attorney shall, if he is not able to do it himself, ask the police to collect all relevant information and to take other measures concerning the offence (Articles 177 and 179).”