CASE OF ILIEVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Just satisfaction)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1976 and lives in Kriva Palanka. 6. On 24 April 2009 the applicant was operated on for stomach cancer and subsequently underwent chemotherapy. 7. On 29 October 2009 she had been feeling anxious and distressed, and her husband requested medical assistance from Kriva Palanka hospital (110 km from Skopje). Dr M., a general practitioner, gave an instruction that the applicant was to be transferred to a psychiatric clinic in Skopje. Dr C.T., a specialist in neuropsychiatry in Kriva Palanka hospital, also gave instructions for her to be transferred to that clinic with police assistance. 8. Still on 29 October, at around 5 pm., an ambulance arrived at the applicant’s house in the village of Uzem. Two police officers, who were later identified as M.N. and I.A. in the subsequent criminal proceedings, assisted with the applicant’s transfer to the Bardovci psychiatric hospital in Skopje, where she remained until 31 October 2009. 9. The relevant parts of a notice of her discharge, dated 2 November 2009 from Bardovci hospital provide as follows: “[This is the] first admission of (the applicant) to this hospital; it was carried out with the assistance of the police from Kriva Palanka. According to the limited information obtained from (the applicant’s) husband by telephone, (it is known) that since summer this year, when she was diagnosed with and treated for stomach cancer, (the applicant) had become ... melancholic, lethargic, and had threatened with committing suicide. When admitted, [the applicant] was malnourished, dehydrated, and had several haematomas of different sizes, most probably of recent date (најверојатно од понов датум) ... Concerning her psychological state she was depressed, anxious, tearful, and fixated on her poor state of health (cancer) ...she was burdened with depressive ideas and had a paranoid attitude towards her husband, which may be well-founded ... She is discharged without having been examined or treated, at her husband’s request.” 10. Following her discharge from the hospital in Skopje, the applicant was on the same day admitted to the Kriva Palanka hospital. A handwritten medical certificate was issued and entered in the hospital’s records under no. 2131. At the applicant’s request a transcript of this certificate was made by Dr G.S. The relevant parts of this certificate state that: “[According to the applicant] she was handcuffed by the police during her transfer to Bardovci psychiatric hospital, as instructed by a doctor. Objectively: haematoma measuring 2 x 6 cm on both forearms around the wrist joints; 3 hematomas measuring 1 x 2 cm on both lower legs. On the right hip, (a haematoma) measuring 1 x 2 cm. Regarding these injuries, [the applicant] says that they were inflicted by kicks and blows.” 11. Still on 31 October 2009 the applicant was also examined by Doctor M. (see paragraph 7 above). The relevant parts of the medical certificate issued on that date read as follows: “On 29 October 2009 at about 5 pm., on a request by (the applicant’s) husband and as suggested in (a neuropsychiatric opinion), the patient was transported to Skopje psychiatric clinic. The applicant states that she was abused during the transfer: she was hit and punched on the legs, [a third person] sat on her legs, and her hands were handcuffed behind her back. When she arrived she was treated violently by hospital staff. When examined ... [the following] is observed: [she] is upset; a haematoma and a scratch on the lower legs, thus 4-5 scratches on the right side measuring 1 x 2 cm; on the left side 4-5 (scratches) measuring 1 x 2 cm and 2 x 2 cm; haematomas and (two) scratches on the stomach measuring 3 x 1 cm; 5 scratches on the back measuring 5 x 6 cm; some small haematomas ... The patient has visible injuries caused by a trauma, namely hitting and punching. Opinion: light bodily injury.” 12. On 15 February 2010 Doctor M. issued a certificate that on 29 October 2009 the applicant had been examined and that an instruction had been given for her to be transferred to Skopje psychiatric clinic. 13. In support of the application before the Court, the applicant provided four photographs of her, showing the following injuries: five scratches on the lower and middle part of the back; two scratches and a haematoma on her stomach, and several haematomas on the lower legs. 14. On 21 November 2009 the police drew up an official note (службена белешка) regarding information obtained from Dr S.V. As indicated in the note, S.V. decided, “for the sake of truth”, to provide relevant information in reaction to a television interview broadcasted on 3 November 2009 in which the applicant had stated that she was ill-treated by police officers during her transfer to Bardovci hospital. During the interview she showed the injuries that she had allegedly sustained. The relevant parts of the note read as follows: “... I want to say that on 27 October 2009 at 9 pm., I was called, through the duty medical centre of Kriva Palanka hospital, to intervene in an urgent case reported by (the applicant’s) husband. I arrived at a pensioners’ home in Kriva Palanka, where (the applicant and her husband) were waiting. (The husband) told me that (the applicant) had injured herself, namely that she had hit her body and head against a wall and a bed; her face was covered with blood, and there was blood on the floor in front of the door. That suggested that she had had a nervous breakdown, for which I prescribed treatment. In my opinion and in view of the foregoing, it is most likely that the injuries she showed to the cameras were self-inflicted on the date indicated above, which was when I intervened.” 15. On 3 December 2009 L.S. provided information to the police in relation to media statements by the applicant and her husband that the applicant had been ill-treated by the police. L.S. stated that the applicant’s husband had beaten the applicant on three occasions (she did not specify the exact dates when the alleged beatings had happened, but she confirmed that it had been on “the nights of Thursday, Friday and Saturday”). She further stated: “During the Sunday night two women, most likely journalists, visited [the applicant’s husband]. On the Tuesday [the applicant’s husband] invited residents to watch on television ‘how do the police from Kriva Palanka work. I put them in a mould; I’ll take a lot of money from them’. I personally believe that [the applicant’s] injuries were inflicted by [her husband] who, while intoxicated, beats her up every day in front of their children.” 16. The note further indicated that four individuals (whose identity was specified), together with other residents in the building in which the applicant lived, could be interviewed regarding the case. 17. On 11 January 2010 the police informed the applicant’s husband that on 3 December 2009 L.S. had made a complaint against him, and that an official note had been drawn up. As stated in the letter, both the applicant’s husband and L.S. had been advised to stop arguing in future. The letter further indicated that L.S. had been warned that in the event of false reporting a misdemeanour complaint would be lodged against her. 18. In submissions of 27 January and 18 February 2010 the applicant brought criminal charges of medical malpractice against Dr C.T. alleging that he had instructed her to undergo a psychiatric examination without examining her, against V.S., a nurse who had accompanied the applicant during her transfer to Skopje (she had been sitting in the front passenger seat), and against M.N. and I.A., the police officers, for inflicting ill-treatment and mild bodily injury. She alleged that on 29 October 2009 she had been distressed. In the circumstances, her husband had gone to Kriva Palanka hospital, where Dr C.T. had decided that she be transferred to Skopje psychiatric clinic with assistance from the police. Doctor M. had also issued a recommendation in this respect (see paragraph 7 above). The applicant claimed, inter alia, that M.N. and I.A. had forcibly put her in the ambulance, stating that they had grabbed her arms and dragged her to the ambulance, ignoring her cries of pain from the surgery. After she had been put in the ambulance, she had been forcibly made to lie on a bed with her hands handcuffed behind her back. I.A. sat on her legs. They had gone, firstly, to Kriva Palanka hospital where Dr C.T. had given instructions, by telephone, to V.S. to administer an injection. The applicant alleged that on the way to Skopje she had been hit, punched and threatened by the police officers. As a result, she had “several injuries (haematomas) all over the body and limbs and five to seven marks on the back from the handcuffs, of which I have photographs”. In support of her complaint she attached medical certificates (see paragraphs 9, 10, 11 and 12 above). 19. On 31 March 2010 the public prosecutor contacted the Ministry of the Interior with a request for further information regarding the incident. In reply, on 26 May 2010 the Sector for Internal Control and Professional Standards within the Ministry of the Interior submitted a “special report” regarding the case. It referred to statements (which it submitted in support) which Dr C.T., the applicant and her husband had given to the police between 13 and 15 April 2010. 20. Dr C.T. confirmed that on 29 October 2009 the applicant’s husband had told him that they lived in the pensioners’ home in Kriva Palanka; that the applicant’s mental health was poor; that she had arrived at their family house in the village of Uzem (see paragraph 8 above) without his consent; that she had broken a window to get in; that she had been aggressive and was capable of killing herself, their children or himself; that she had been uncooperative; and that she had refused to sleep or eat. 21. In the statement, the applicant’s husband confirmed that the applicant’s mental health had deteriorated since the stomach surgery, and that he had explained “her condition” to the doctors M. and C.T. during his visit of 29 October 2009. He also informed the police officers M.N. and I.A. about her state of health while he was in the ambulance with them on the way to their family house. When they got to the house he had asked the police officers to wait outside so that he could explain to the applicant that she was going to be taken to a psychiatric hospital. When the police officers had entered the house their children had started crying and putting their arms around the applicant. The police officers had forcibly separated the children from the applicant; they had grabbed her by the arms and dragged her (while she was on her knees) towards the door. After the situation had calmed down and in order not to harm the applicant, he had taken her by the legs, and he and the police officers had taken her to the front of the ambulance. Then the police officers had put her in the ambulance; they had handcuffed her hands behind her back and made her lie on a bed. To keep her still, I.A. had sat on her legs. The police officers had remained with the applicant in the rear of the ambulance, while V.S. had sat in the front passenger seat. While he had been occupied with the children in the house, the ambulance had left the scene. The next day he had found out that the applicant had been taken to Bardovci hospital; he went there, but no visits were allowed that day. 22. In depositions made on 15 April 2010 the applicant confirmed that on 29 October 2009 she had consented to be taken to Skopje psychiatric clinic; that the police officers had grabbed her hands and dragged her; that before she got into the ambulance M.N. had hit her on the back with a baton; and that her husband had helped M.N. and I.A. to bring her to the front of the ambulance. She also stated that no infusion or injection had been administered when they had stopped at Kriva Palanka hospital; that during the transfer to Skopje hospital (the ambulance had been driven at excessive speed) her hands had been handcuffed behind her back; that I.A. had been sitting on her legs and that she (I.A.) had hit her on the legs and head with a truncheon; that M.N. had grabbed her hair and had tightened up the handcuffs; that both M.N. and I.A. had punched her and hurt her legs. When she was admitted to Bardovci hospital she was bleeding and had bruises. 23. The “special report” of the Ministry further referred to statements given by doctors S.V. and L.S. (see paragraphs 14 and 15 above). It also specified that the police officers concerned had denied that they had used any force against the applicant, and that the applicant had used offensive language against them and had been screaming loudly. The record also stated that V.S. (the nurse) and J.D. (the driver of the ambulance), had also denied that the police officers had used any force against the applicant. The report went on to state: “when (the police officers) arrived at (the applicant’s) house, they were warned by the (applicant’s) husband to be cautious because Marina had a knife with which she might assault them. For that reason, he proposed going into the house first to tell (the applicant) that she was going to be taken to Skopje for medical treatment. After five minutes, (the applicant’s husband) went out and called (the police officers) into the house. The police officers went in and told Marina that they would have to transfer her by ambulance to a health institution in Skopje. In response to that, Marina said to (her husband): do I deserve this from you, being taken for medical treatment; I do not belong there, you should go there because you are drunk every day and you constantly abuse and hit me and the children; I’m covered in bruises because of you ... Throughout the journey, (the applicant) used offensive language against the police officers and the nurse, she [the applicant] was very aggressive and angry, and she was screaming loudly and trying to hurt herself by hitting her head against the window of the ambulance. The police officers and the nurse had been forced during the entire transfer to hold her hands in order to prevent her from hurting herself or some of them”. 24. On 8 June 2010 the Kriva Palanka public prosecutor’s office, referring to the Ministry’s “special report” and the discharge notice from Bardovci hospital, rejected the applicant’s complaint against the accused (the decision noted that the nurse V.S. had died in the meantime), finding that the alleged offences were not subject to State prosecution. On 14 June 2010 the applicant, in the capacity of a subsidiary prosecutor, took over the prosecution and brought private charges before the Kriva Palanka Court of First Instance (“the trial court”) on the same charges as above (see paragraph 18 above). 25. On 6 October 2010 the trial court heard Dr C.T., M.N., I.A., the applicant, who was not legally represented, and her husband. According to the transcript of the court hearing, Dr C.T.’s statement was consistent with the statements he had made to the police (see paragraph 20 above). 26. The relevant parts of M.N.’s statement, as described in the court record, read as follows: “(the applicant’s husband) arrived at the police station and said in front of colleagues and himself (M.N.) that he had been afraid that something could happen to his children or (to the applicant), because, when she had gone to Uzem she had taken a knife and a telephone wire; they went by ambulance to Uzem ... [when they went into the house] (the applicant) became upset and grabbed one of the minor children in her arms; (the applicant’s) husband took the child away, and because she did not want to get into the vehicle he (M.N.) took her arms and her husband took her legs and they put her in the ambulance.” 27. I.A. confirmed M.N.’s statement, and stated that she had held the applicant down with her hands to prevent her from standing up. Both M.N. and I.A. denied that they had used force or handcuffs against the applicant. They also stated that a tranquilliser had been administered to the applicant before they had left for Skopje. 28. The applicant objected to the defendants’ statements. She further denied that her husband had helped the police officers to take her to the ambulance; on the other hand, she reiterated that the police officers had grabbed her and put her into the ambulance; that she had been handcuffed, and that M.N. had hit her with a truncheon; that I.A. had sat on her legs during the transfer; that I.A. had held her mouth closed to stop her talking, and had hit and punched her. 29. The applicant’s husband confirmed that he had requested that Dr C.T. give an instruction for the applicant to have treatment. When the applicant had refused to get into the ambulance the police officers had grabbed her by the arms and dragged her towards the ambulance. In order not to hurt her, he had grabbed the applicant by the legs and put her in the vehicle. M.N. had handcuffed the applicant. The applicant’s husband denied saying that the applicant had a knife and a wire. 30. On 6 October 2010 the trial court delivered a judgment acquitting C.T., M.N. and I.A. for lack of evidence. It also discontinued the proceedings against V.S. The trial court established that: “The accused doctor C.T. ... acted conscientiously and in accordance with his duty, and at the request of [the applicant’s] husband who had informed him about [the applicant’s] condition, he provided appropriate treatment; he drew up a report and instructed that she be transferred with police assistance to Skopje psychiatric clinic. [The applicant] was not examined by a specialist (не и бил извршен специјалистички преглед) because she was brought [to the hospital] outside working hours (and) [Dr C.T.] was far away from the office; after [V.S.] had told him by telephone about [the applicant’s] condition, he instructed that a tranquilliser injection be given and that [the applicant] be transported to Skopje. The accused M.N. and I.A., police officers in Kriva Palanka police station called to provide assistance during [the applicant’s] transfer by ambulance to Skopje psychiatric clinic, acted professionally and in accordance with the law and their powers; they did not use any physical force against the applicant and they did not inflict any injuries on her. The court established the above on the basis of evidence admitted at the trial, namely: oral evidence from the accused, who did not admit the alleged criminal offences, as well as the material evidence from the case file ... of the Kriva Palanka prosecutor’s office which ... [on the basis of the Ministry’s special report] rejected [the applicant’s] criminal complaint ... All these items of evidence are clear, undisputable, categorical, and inter-related; there is no reason for the court to question their reliability ... relying on [this evidence] the court delivers judgment, finding that [the evidence] does not prove that the accused committed the criminal offences with which they are charged. The court examined [the applicant’s] statement that ... the police officers had dragged her into the ambulance; that she had been handcuffed, and that M.N. had hit her with a truncheon ... that during the transfer she had been restrained with handcuffs; that police officer I.A. had been sitting on her legs and had closed her mouth to stop her talking; and (that I.A.) had hit and punched her ... The court examined the statement of [the applicant’s husband] that ... the police officers had grabbed [the applicant] by the arms and dragged her towards the ambulance, and in order not to hurt her, because she had recently had surgery, he had taken her legs and helped to put her in the ambulance; that police officer M.N. had put her head between her legs and had handcuffed her ... The court examined evidence submitted with the criminal complaints (medical reports described in paragraphs 7, 9, 10, 11 and 12 above), and photographs, but they did not contain anything that could lead to a different assessment of the facts from that established [by the court]. (This evidence) is medical evidence, on the basis of which the court established that there had been an instruction for the applicant to be treated at Skopje psychiatric clinic, and a medical certificate had been issued for the visible injuries that she had; that on 29 October 2009 she had been admitted to (Bardovci) hospital; that (at that time) she had been depressed and had a depressive and paranoid attitude towards her husband; that [she] had several haematomas of recent date ... four photographs showed bruises and scratches on her legs and body. It is undisputed that owing to [the applicant’s] condition she needed to be transferred for treatment with assistance from the police; this was also what her husband had asked for. She was admitted to an appropriate institution for treatment and was then discharged at the request of her husband; the injuries described in the medical certificate and visible in the photographs – a haematoma and scratches, which were noted in the discharge notice upon [the applicant’s] admission, were of recent date. However, this evidence cannot lead to a conclusion that [the injuries] were inflicted during the transfer, namely on the day when [the applicant] was transferred by ambulance with assistance from the police.” 31. The applicant appealed against the judgment and reiterated her argument that she had been ill-treated, and complained that Dr C.T. and M.N. had given false statements; that the trial court’s judgment had been delivered after the trial court had held only one hearing; and that her husband had not given oral evidence before the trial court. 32. On 15 December 2010 the Skopje Court of Appeal upheld the facts established and the reasoning given by the trial court. The court reiterated that on the basis of a request by the applicant’s husband and in view of the applicant’s state of health Dr C.T. had correctly ordered urgent medical treatment with police assistance. The fact that the applicant had been hospitalised in Bardovci hospital instead of in Skopje psychiatric clinic, as instructed by Dr C.T., was irrelevant, as the medical care she had received was appropriate. The court confirmed that the police officers had acted in accordance with the law and their duties as police officers. 33. On 9 March 2011 the public prosecutor informed the applicant that there were no grounds for lodging a request for review of the legality of the judgments. 34. According to the applicant, she has never suffered from any mental disorder, nor was she receiving any medical treatment in that respect.