CASE OF KRSMANOVIĆ v. SERBIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1975 and lives in Zemun. 6. On 12 March 2003 the Serbian Prime Minister, Mr Zoran Đinđić, was assassinated by members of a criminal group known as the Zemun Clan (Zemunski klan). 7. The Prime Minister’s assassination prompted the Serbian Government to declare a state of emergency and introduce measures in accordance with the State of Emergency Act 1991 (Zakon o merama za slučaj vanrednog stanja, Official Gazette of the Republic of Serbia, no. 19/1991). 8. During that time a large-scale police operation known as Operation Sabre (Sablja) took place. Approximately 10,000 people were arrested during the operation and placed in pre-trial detention. 9. The state of emergency lasted until 23 April 2003. 10. The applicant was a member of a criminal group linked to the Zemun Clan. During Operation Sabre all members of the Zemun Clan and groups linked to it were arrested and questioned about the Prime Minister’s assassination. Those arrested were also questioned about other crimes such as murders, abductions and drug trafficking. 11. The applicant’s arrest took place at around 4 p.m. on 1 April 2003, when five members of the Special Anti-Terrorist Unit broke into the apartment in which he was hiding with five friends. 12. The applicant claims that on the arrival of the Special Anti-Terrorist Unit he was subjected to physical and verbal abuse. Its members immediately started to kick and beat him indiscriminately all over his body and face. They put a pillowcase over his head, verbally abused him and made threats aimed at his family. The maltreatment continued for an hour. On the recording of his arrest, which was broadcast on national television at the beginning of April 2003, he was shown with visible bruises on his face. 13. At around 6 p.m. the applicant and his friends were taken to the police station and left in the corridor. According to the applicant, police officers passing by sporadically hit and kicked him and his friends. He could not identify them as his face was still covered with a pillowcase. 14. At some point two police officers came and took the applicant for questioning. He was taken to an office in which seven to nine people were present. Two or three of them were women. 15. According to the applicant, the maltreatment continued there. He was beaten with baseball bats and police truncheons. He was beaten on the soles of his feet and the palms of his hands. A truncheon was inserted several times into his anus. At one point, a nylon bag was put over the pillowcase which made him lose consciousness. During all that time the applicant remembered hearing his friends screaming. 16. At around 3.30 a.m. on 2 April 2003 two police officers took him to a solitary confinement cell. He was unable to walk so the officers carried him. In the cell his handcuffs were taken off and a detention order was put before him for signature. 17. As alleged by the applicant, approximately half an hour later two police officers entered the cell. They handcuffed him, put a bag over his head and took him for questioning. During that time he was again beaten, kicked and maltreated. Throughout this time, he was not allowed to drink any water. 18. In the applicant’s version of events, after approximately two hours of maltreatment he was returned to the solitary confinement cell. He was kept there for eleven days. During the first five days no food was given to him. Afterwards, he was given one sandwich per day. Throughout that period police officers routinely questioned and ill-treated him in the same way as before. 19. At approximately 10 p.m. on 12 April 2003 the applicant was transferred to Belgrade District Prison (Okružni zatvor), where he remained for a year and two months pending the outcome of the criminal proceedings instituted against him. 20. On 15 April 2003 a prison doctor examined him and issued a medical certificate, which contained an extensive list of his injuries. These included large haematomas on the soles of his feet, palms of his hands, face, shoulders and buttocks, as well as conjunctival hyperaemia (redness) on the external parts of his eyes. The certificate also contained a statement that the applicant had been “beaten in the police station”. 21. During the first sixty days of his detention in Belgrade District Prison he was placed in a solitary confinement cell and only had contact with the doctors who examined him. After two months he had fully recovered from the ill-treatment he had suffered. 22. On 13 October 2003 the applicant was charged with illegal production and trafficking of drugs (neovlašćena proizvodnja i stavljanje u promet opojnih droga), abduction (otmica) and unlawful deprivation of liberty (protivpravno lišenje slobode). On 22 June 2004 he was sentenced to four years and ten months’ imprisonment. He was released from pre-trial detention on 25 June 2004 pending the outcome of appeal proceedings. 23. On 18 May 2004 the applicant’s mother lodged a complaint with the Inspector General’s Service of the Ministry of the Interior (Generalni inspektorat Ministarstva unutrašnjih poslova), alleging that her son had been tortured by members of the Special Anti-Terrorist Unit and police officers working for the Narcotics Department of the Criminal Police Directorate (Odeljenje za suzbijanje narkomanije Uprave kriminalističke policije, also known as the Fourth Department) in Belgrade. 24. On 11 May 2005, 26 May 2005, 8 June 2005 and 12 January 2006 the applicant’s mother submitted additional information complaining that her son had been ill-treated, and that moveable property had been confiscated from his home. 25. On 24 February 2006 the applicant was invited to the Inspector General’s Service to give a statement about his mother’s allegations. He confirmed that he had been ill-treated. 26. On 16 March 2006 the Inspector General’s Service interviewed D.S., the Deputy District Public Prosecutor (zamenik Okružnog javnog tužioca) in Belgrade, who stated that in April 2003 he had been at the police station during the applicant’s questioning. D.S. gave the names of several of the police officers involved and stated that he had not seen any injuries on the applicant. On the contrary, the applicant had seemed pleased because he had been informed that he would be charged with lesser offences than expected. D.S. also claimed that the applicant had had no complaints about his treatment. 27. On 13 June 2006 statements were taken from two police officers, R.P. and A.K. Both claimed that they had not participated in the immediate arrest, but had entered the apartment after the members of the Special Anti-Terrorist Unit had already arrested the applicant and his friends. In the apartment they had seen several people dressed in only their underwear, being handcuffed and lying face down. They denied having seen any bruises or injuries on those arrested. 28. On 10 July 2006 the Inspector General’s Service interviewed the applicant’s wife, who made no complaints about the applicant’s treatment during his arrest or while in detention. She only complained about the confiscation of certain movables from their home. 29. On 28 September 2006 the chief of the Fourth Department of the Criminal Police Directorate in Belgrade (Načelnik četvrtog odeljenja UKP SUP), Z.K., gave a statement to the Sector for the Internal Control of the Police. He said that he had had no knowledge of the applicant or his friends having been subjected to any ill-treatment. 30. On 21 March 2007 the applicant’s mother’s complaint of ill-treatment of her son was rejected by the Inspector General’s Service for lack of evidence of a crime. 31. On 1 July 2007 the applicant lodged a criminal complaint with the First Municipal Public Prosecutor’s Office (Prvo opštinsko javno tužilaštvo – “the prosecutor’s office”) against a number of the unknown perpetrators as well as against three police officers identified only by surname. 32. On 20 July 2007 the prosecutor’s office opened an official inquiry with requests for the police to provide evidence and the names of those involved in the applicant’s arrest and questioning, and an investigative judge to question the applicant. He was interviewed on 9 October 2007. 33. On 30 November 2007 the Sector for the Internal Control of the Police identified three police officers, V.M., S.P., and Z.K., in connection with the applicant’s arrest and questioning. The officers stated that no violence had ever been used against the applicant. On 27 December 2007 the prosecutor’s office dropped the charges against them for lack of evidence. 34. At the same time the case against the unidentified police officers remained open because, according to the prosecutor’s office, “it transpired from the evidence gathered that Krsmanović Đorđe had sustained injuries while in detention” (iz prikupljenih dokaza utvrđeno je da je Krsmanović Đorđe zadobio povrede u periodu dok mu je bio određen pritvor). It would appear that the case is still open. 35. After learning of that decision, on 23 January 2008 the applicant took over the criminal proceedings as a subsidiary prosecutor (oštećeni kao tužilac) by requesting to have an investigation opened against V.M., S.P., and Z.K. 36. On 21 April and 18 November 2008 the investigating judge to whom the case was assigned interviewed three doctors who worked at the prison hospital. On 15 January 2009 he also interviewed the police officers accused of ill-treatment. On 24 March 2009 he refused to open an investigation because there was not enough evidence to prove that the accused had committed the crime they were suspected of. On 23 September 2009 the pre-trial chamber of the First Belgrade Municipal Court upheld the decision of the investigating judge. The applicant appealed. On 13 April 2010 the Belgrade Appellate Court upheld that decision. 37. On 10 July 2010 the applicant lodged an appeal on points of law with the prosecutor’s office, which was rejected on 11 October 2010. 38. On 11 July 2010 the applicant also lodged a constitutional appeal. He complained principally about the lack of an effective investigation into the events under Articles 21, 25, 27, 29, 32, 33 and 36 of the Constitution and Articles 3, 6, 13 and 14 of the Convention. On 23 July 2013 his constitutional appeal was rejected by the Constitutional Court, whose decision was served on the applicant on 11 September 2013. The court primarily considered the applicant’s complaints under Article 6 of the Convention and found them to be manifestly ill-founded. As to the applicant’s complaint under Article 3 of the Convention, the Constitutional Court found it to be outside its temporal jurisdiction in view of the date of entry into force of the Constitution itself. In respect of the other complaints, the Constitutional Court held, inter alia, that: “it is not enough to allege a violation of one’s rights in a constitutional appeal or list the constitutional rights that are considered to be violated and reasons for their violations based on the appellant’s subjective estimation or evaluation, but to put each mentioned reason into a direct relationship with the allegedly violated constitutional right, and a violation or denial of a certain constitutional right has to be caused by an act or action that occurred before the entry into force of the Constitution. This also implies that specific and detailed reasons of the alleged violation of the constitutional right have to be specified in the constitutional appeal, because only a causal link presented in such manner may compel the Court to find a violation or denial of a certain right.”