CASE OF ĐEKIĆ AND OTHERS v. SERBIA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra
5. The applicants were born in 1976, 1984 and 1976 respectively. The first and second applicants live in Prokuplje and the third applicant lives in Belgrade. 6. On 18 September 2004 at about 2.30 a.m. they were implicated in a minor road traffic accident. Soon thereafter, the police arrived at the scene. 7. According to the applicants, the police immediately handcuffed them and took them to the Prokuplje Police Station where they were beaten up. However, according to the official reports on the use of force prepared by three duty officers, the applicants were drunk and violent from the arrival of the police at the scene of the accident. As they tried to flee the scene and, moreover, attacked the officer who tried to stop them, the police decided to arrest them. At the police station, the applicants continued to behave violently. In order to subdue the applicants, the three duty officers hit them a couple of times with truncheons and then handcuffed them. In the process, as they resisted being handcuffed, Mr Zoran Đekić and Mr Dragan Končar struck their heads against office furniture. 8. Having spent the night at the police station, the applicants were taken to the hospital. According to medical reports, Mr Dragan Đekić had a bruise on his right shoulder, Mr Zoran Đekić had bruises on his head, right arm and right shoulder, and Mr Dragan Končar had bruises on his head, chest, abdomen, back and right shoulder. 9. On the same morning the police lodged a criminal complaint against the applicants accusing them of the offence of obstructing a police officer in the discharge of his duty. At about 8.30 a.m. the applicants were taken to the investigating judge. They complained that they had been beaten up by the police. However, the judge took no action in that regard. They were released at about 1 p.m. 10. On 20 September 2004 two daily newspapers with a large circulation published the applicants’ allegations that they had been beaten up by the police. The next day the Press Service of the Ministry of Interior issued an official denial. Between 21 and 27 September 2004, the Inspector General’s Service (the internal control service of the Ministry of Interior) carried out an internal investigation into the applicants’ allegations. It interviewed the applicants, 18 police officers and 19 civilians (while no civilians were present at the premises of the police station when the police resorted to the use of force against the applicants, the Inspector General’s Service interviewed a number of eyewitnesses to the applicants’ arrest and the doctor who had examined the applicants on the critical day). All of them except the applicants maintained that the applicants had been drunk and violent at the relevant time. The Inspector General’s Service concluded in its report of 27 September 2004 that the police had acted in accordance with law. The report was not made available to the applicants. 11. On 18 November 2004 the public prosecutor charged the applicants with the offence of obstructing a police officer in the discharge of his duty. The applicants were ultimately convicted as charged and given suspended sentences. 12. On 8 December 2004 the applicants lodged a criminal complaint against three police officers accusing them of ill-treatment. Having obtained an official report finding that the police had acted in accordance with law, on 28 January 2005 the public prosecutor decided not to prosecute. On 2 March 2005 the applicants started a subsidiary prosecution by lodging a bill of indictment against the same officers. They did not file a civil-party claim. 13. The first hearing before the Prokuplje Municipal Court took place on 11 October 2005. Having heard the police officers accused of ill-treatment, some other officers, the applicants and some eyewitnesses to their arrest, on 18 April 2006 the Prokuplje Municipal Court decided that the use of force against the applicants had been lawful. It therefore acquitted the accused police officers. On 24 October 2006 the Prokuplje District Court upheld that ruling. The last judgment of 24 October 2006 was served on the applicants on 27 November 2006. 14. In December 2006 the applicants applied to the public prosecutor to lodge a request for the protection of legality on their behalf. On 7 August 2007 the public prosecutor decided not to do so. 15. The Criminal Code 1977 (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, 42/89; and Official Gazette of the Republic of Serbia 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) was in force from 1 July 1977 until 1 January 2006. The relevant Article reads as follows: “Whoever acting in an official capacity ill-treats or insults another or otherwise treats such person in a humiliating and degrading manner, shall be punished with imprisonment of from three months to three years.” 16. The Code of Criminal Procedure 2001 (Official Gazette of the FRY nos. 70/01 and 68/02; and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09, 72/09 and 76/10) was in force between 28 March 2002 and 1 October 2013. Most criminal offences (including ill-treatment by public officials acting in an official capacity) were subject to public prosecution, but some minor offences were only subject to private prosecution. Pursuant to Article 20 of the Code, the public prosecutor had to prosecute when there was sufficient evidence that a person had committed a criminal offence which was subject to public prosecution. Article 61 of the Code provided that when the public prosecutor decided not to prosecute such an offence because of a lack of evidence, the victim of the offence had the possibility of starting a subsidiary prosecution within eight days from the notification of the public prosecutor’s decision. 17. The Inspector General’s Service of the Ministry of Interior was set up by the Inspector General’s Service Ordinance 2001. The first Inspector General was appointed in June 2003. As the Ordinance is not in the public domain, little is known about the work of that body in the first years of its existence. It is, however, certain that the Inspector General was answerable to the Minister of Interior. The Service was reorganised and renamed (it is now called the Sector for the Internal Control of the Police) in November 2005, but this is irrelevant in the present case. 18. The Civil Obligations Act 1978 (Official Gazette of the SFRY nos. 29/78, 39/85, 45/89 and 57/89; and Official Gazette of the FRY no. 31/93) has been in force since 1 October 1978. Section 200(1) thereof provides that anyone who has suffered fear, physical pain or mental anguish as a result of a breach of his human rights (prava ličnosti) is entitled to sue for damages. In accordance with section 172(1) of the Act, a legal entity, which includes the State, is liable for any tort committed vis-à-vis a third party by its organs in the course of, or in connection with, the exercise of their functions. 19. The Civil Proceedings Act 2004 (Official Gazette of the Republic of Serbia nos. 125/04 and 111/09) was in force from 22 February 2005 until 1 February 2012. Section 13 of the Act provided that if a victim of a criminal offence had brought a civil action for damages against the offender, the civil court was bound by a final decision, if any, of the criminal court finding the offender guilty. The civil courts have persistently interpreted that provision so that a criminal conviction was not a condition for an award of damages (see, for instance, judgment Gž. 1739/06 of the Kragujevac District Court of 29 September 2006; judgment Gž. 1257/11 of the Novi Sad Appeals Court of 2 June 2011; judgment Gž. 3273/11 of the Novi Sad Appeals Court of 16 November 2011; judgment Gž. 146/12 of the Novi Sad Appeals Court of 5 April 2012; judgment Gž. 5676/11 of the Belgrade Appeals Court of 2 August 2012; and judgment Gž. 4357/12 of the Novi Sad Appeals Court of 26 October 2012; in which civil courts awarded non-pecuniary damages for injuries sustained during an arrest operation and/or in police custody in the absence of a criminal conviction against any police officer). The Civil Proceedings Act 1977 (Official Gazette of the SFRY nos. 4/77, 36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90 and 35/91; and Official Gazette of the FRY nos. 27/92, 31/93, 24/94, 12/98, 15/98 and 3/02), which was in force until 22 February 2005, contained the same provision (see section 12(3) thereof). 20. The International Covenant on Civil and Political Rights, adopted under the auspices of the United Nations on 16 December 1966, entered into force in respect of Serbia on 12 March 2001. The “concluding observations” on Serbia of the Human Rights Committee, the body of independent experts set up to monitor the implementation of this treaty, read, in the relevant part, as follows (document CCPR/CO/81/SEMO of 12 August 2004, § 15): “While taking note of the establishment in Serbia of [Inspector General’s Service] in June 2003, the Committee is concerned that no independent oversight mechanism exists for investigating complaints of criminal conduct against members of the police, which could contribute to impunity for police officers involved in human rights violations. The State party should establish independent civilian review bodies at the Republic level with authority to receive and investigate all complaints of excessive use of force and other abuse of power by the police.”