CASE OF PETROVIĆ v. SERBIA
Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall
7. The applicant was born in 1950 and lives in Belgrade. The applicant’s son, Mr Dejan Petrović, was born in 1973 and died on 15 February 2002 in hospital, a month after reportedly having fallen from the window of a police station in Belgrade. 8. At about 9.30 p.m. on 16 January 2002 Mr Dejan Petrović was arrested by the Vračar Police Department (OUP Vračar-SUP Beograd) on suspicion of having snatched a woman’s handbag earlier that evening and was kept overnight in police custody. Mr Dejan Petrović, then aged twenty-nine, was apparently known to the police as an alleged drug user and as having been involved in similar incidents previously. 9. According to the police reports, the following morning at 8.30 a.m. Mr Dejan Petrović was questioned by three police officers, D.K., S.K. and N.K. Mr Dejan Petrović allegedly confessed that he had committed the robbery in question and had hidden a sum of money (around 20,000 Serbian dinars (RSD)) in his home. After an unsuccessful search of the Petrović family’s flat that morning, the police officers left the house together with Mr Petrović in handcuffs. 10. The applicant alleged that her son had been visibly distressed and very pale, and his mouth had been yellowish. On the way out, he had turned to her and said “call a lawyer, I have done nothing, they will kill me”. 11. According to the incident report of 17 January 2002 drawn up by Major M.M., the police officers’ superior, Mr Dejan Petrović had been brought back handcuffed, at around 10.30 a.m., to office no. 24 on the second floor of the Vračar police station to be questioned further. As they entered the office, while D.K. was approaching his desk, S.K. was standing and N.K. was closing the office door, Mr Dejan Petrović suddenly rushed forward, jumped head first through a closed window, breaking a window pane, and fell out into the courtyard. None of the police officers had been able to prevent it. The police officers ran out to the courtyard and, as Mr Dejan Petrović showed some signs of still being alive, they took the handcuffs off, while some other colleagues called an ambulance. 12. Around noon, the police informed the applicant’s family that Mr Dejan Petrović had jumped from the second floor of the police premises and that he had been taken to the emergency unit of the Serbian Clinical Centre in Belgrade. 13. Upon their arrival at the emergency unit, the applicant and her husband (Mr Dejan Petrović’s father) were informed that at around 11.10 a.m. the hospital had admitted an unidentified and severely injured patient who had jumped from the second floor of a building. He was in a comatose state, with a fracture of his left ribs and femur and contusion and haematoma of the liver, and was undergoing surgery that could take several hours. 14. While the surgical operation was being carried out, the applicant’s husband went to the Vračar Police premises. Following an on-site inspection (see paragraphs 18-19 below), he was shown the scene of the incident. The applicant claimed that her husband, as well as certain media, had initially been informed that their son, who had been handcuffed and in his winter jacket, had been alone in the office when he had jumped through the window, but had later been told that their son had broken away in the presence of the three police officers. 15. Mr Dejan Petrović remained in a comatose state while in hospital, except between 26 and 28 January 2002, when he showed some signs of consciousness and movement. 16. According to the medical certificate issued by the Serbian Clinical Centre, Mr Dejan Petrović died from sepsis and cardiac arrest on 15 February 2002 at 4.30 a.m. Following a request by the investigating judge (M.P.) of the Belgrade District Court, the post-mortem examination of Mr Dejan Petrović’s body was carried out on 18 February 2002 at 9 a.m. by two doctors, Sl.K. and V.D.J., of the Institute for Forensic Medicine of the Faculty of Medicine in Belgrade. The autopsy report stated that Mr Dejan Petrović’s death had been violent and caused by damage to his brain (vitalne centre) and complications thereafter. It further concluded that the damage to his brain, as well as the rib and femur fractures and other external and internal bodily injuries described in the report, had been “inflicted with a blunt, heavy and swinging object (naneti tupim, teškim i zamahnutim predmetom)”. No photographs or results of any toxicological analysis have been submitted to the Court. 17. Following a telephone call from the Belgrade criminal police department for investigative and operational affairs (Odelenje za uviđajno-operativne poslove Uprave kriminalističke policije (UKP) - SUP Beograd; hereinafter “the DIOA”), the investigating judge on duty, V.M., from an unspecified court, arrived at the Vračar Police Department at an unspecified time to inspect the scene of the incident. D.Z., from the DIOA, and a crime-scene technician, M.K., from the Belgrade criminal police forensics unit (Odeljenje kriminalističke tehnike UKP-a) were also present. 18. According to the investigating judge’s one-and-a-half-page report of his inspection of the scene of the incident (zapisnik o uviđaju), upon his arrival at the Vračar Police Department, unspecified police officers had shown him office no. 24 and a broken window pane in the left corner of the window, closest to the floor. As it was a double, wooden multi-paned window, and as he had been informed that Mr Dejan Petrović had jumped out through the window pane by breaking the glass, he had examined the pane in question. As he had seen no blood stains, hair or any other trace of this nature, he had asked the two above-mentioned investigators whether they had seen any traces, in order to inspect them, but they had both responded in the negative. He had ordered the crime-scene technician to draw a sketch of the scene and to photograph it, as well as to measure the size of the window. The investigating judge had noted the broken window pane, as well as pieces of glass between the two window frames and on the floor below the inside window. In the snow-covered courtyard of the police building, into which the suspect Mr Dejan Petrović had allegedly fallen, he had “noticed footprints and trodden snow of an indeterminate shape below the window”, but had not found “any blood stains or other physical traces”. 19. The sketch of the scene of the incident, thirteen photographs of the office and three of the courtyard were an integral part of the investigating judge’s report. The copies of the photographs submitted to the Court show an armchair under the broken window with a cabinet to its right and a hat stand to its left. In the report on the forensic inspection of the scene of the incident (izveštaj o kriminalističko-tehničkom pregledu lica mesta), the crime-scene technician noted the following: (a) as regards biological traces, the investigating judge had not requested that fingerprints be lifted and collected; (b) as regards the other evidence and objects found, broken glass had been noticed in the pane of the lower left part of the interior and exterior window frames. The window pane’s frames measured 50 x 55 and 45 x 50 centimeters respectively and stood one metre from the office floor. Both window frames had been found closed. Pieces of broken glass had been found between the interior and exterior window frames and on the windowsill. The outside window stood nine metres above the ground. The trodden snow and pieces of glass had been found 1.5 metres away from the building’s wall. Other traces had not been found. 20. According to a separate report on the questioning of the three police officers drawn up by D.Z. from the DIOA, they had provided concurring statements to the same effect as those detailed in the incident report (see paragraph 11 above). The police officers also stated that Mr Dejan Petrović had, as usual, been very well-behaved that morning and had confessed to committing the robbery. 21. A report was drawn up, apparently in the framework of a fact-finding visit conducted on 17 January 2002, at an unspecified time, by Major D.T. and Captain Ð.D. of the Belgrade Police Internal Control Department (Odeljenje za kontrolu zakonitosti u radu SUP-a Beograd). The report restated the events as outlined by the previous reports (see paragraphs 11 and 20 above). It was further noted that Mr Dejan Petrović’s parents had mentioned that he had been taking antidepressants as part of his therapy for drug addiction in order to prevent any possible self-injury. Regarding the police officers’ accountability, the inspectors considered that the police officers in charge had undertaken preventive, but apparently insufficient, measures for the protection of Mr Dejan Petrović. For that reason, disciplinary action against S.K. and D.K. and a verbal reprimand to N.K. by her superior were recommended. The inspectors also recommended that the police ensure appropriate conditions, for example, window security bars, on premises where apprehended individuals were questioned. 22. In the framework of a preliminary disciplinary inquiry (prethodni disciplinski postupak) that evening, the three police officers were questioned again, one by one, by their superior, Major M.M. The three officers repeated their earlier statements. 23. On 7 March 2002 S.K. and D.K. were prosecuted in disciplinary proceedings for gross misconduct, namely, omitting to take adequate measures for the protection of Mr Dejan Petrović’s safety while in custody. The disciplinary body heard the officers as the suspects, as well as N.K. as a witness, all of whom reiterated their earlier recollection of the incident. The police officers were acquitted at two levels, the last decision being rendered on 10 May 2002. It was found thathave done more than they had done to protect Mr Dejan Petrović and prevent his suicide. 24. On 28 January 2002 the applicant’s husband lodged a criminal complaint against police officer D.K. on behalf of the Petrović family, on the ground that there was a reasonable suspicion that he had forcibly extracted a statement from Mr Dejan Petrović. In the complaint it was claimed that the police officers had used force in order to extract a statement and had severely ill-treated Mr Dejan Petrović to such an extent that it had driven him to jump out of the office window. The family also alleged that the police officers had failed to disclose Mr Dejan Petrović’s identity and all the circumstances of the incident to the emergency medical team. 25. In the meantime, on 24 January 2002, the Belgrade police sent the District Public Prosecutor’s Office in Belgrade (hereinafter “the DPPO”) the two reports of 17 January 2002 (see paragraphs 21-22 above). On 14 May 2002 and 12 June 2002, respectively, the DPPO also received the autopsy report and the report on the forensic inspection of the scene of the incident (see paragraphs 16 and 18-19 above). 26. On 11 October 2002 the DPPO requested information from the Belgrade Police Internal Control Department on the outcome of the disciplinary proceedings against the police officers who had been present during the incident. The DPPO also supplied that department with its own case file to enable them to establish the facts of the case more easily. The requested documentation from the disciplinary proceedings was received by the DPPO on 14 November 2002. 27. On an unspecified date, the applicant’s husband extended the criminal complaint to include two other police officers who had been involved in the incident. 28. On 9 January 2003 the DPPO requested a commission of forensic experts from the Institute for Forensic Medicine of the Belgrade Faculty of Medicine to give their opinion on what other causes, apart from a fall from the window, could explain Mr Dejan Petrović’s injuries. On 1 August 2003 the Institute for Forensic Medicine requested the case file and the DPPO sent it to them a month later. On 18 September 2003 the DPPO requested an investigating judge of the District Court to issue an order for a forensic opinion, as the Institute could apparently not proceed on the basis of the DPPO’s order alone. The investigating judge did so on 8 October 2003. 29. Almost a year later, in an expert opinion dated 13 September 2004, the experts stated, on the basis of the autopsy report and other medical records, that a person of Mr Dejan Petrović’s height and build could have “squeezed through” the window in question. They further maintained that Mr Dejan Petrović’s fatal injuries could have been caused by his jump from the window and his falling on a hard surface. Finally, they concluded that no other injuries, lacerations, scratches or bruises of a nature or location which would indicate that they had any cause other than the one mentioned above had been recorded in the autopsy report or in the hospital’s files. 30. On 1 November 2004 the DPPO rejected the criminal complaint on the ground that there was no reasonable suspicion that the suspects had committed the alleged crime. The applicant’s husband was notified accordingly and informed that he could pursue a subsidiary criminal prosecution (preuzeti krivično gonjenje) within eight days of the date that decision had been served on him by filing a request for an investigation (zahtev za sprovođenje istrage). 31. On 16 February 2005 the Petrović’s family lodged with the DPPO a new and more detailed criminal complaint against the police officers (P.N., N.K., D.K. and S.K.) for causing severe bodily harm (teške telesne povrede), extracting a statement by coercion (iznuđivanje iskaza) and ill-treatment in the discharge of their official duties (zlostava u službi). In the complaint they expressed their doubt that Mr Dejan Petrović had jumped out of the office window of his own volition and their suspicion that the suspects had thrown their son’s corpse out of the window in order to conceal previous ill-treatment. The complaint pointed out certain alleged contradictions and shortcomings in the previous investigative measures and reports, and proposed numerous investigative activities to be carried out in order to investigate the circumstances of Mr Dejan Petrović’s death adequately. 32. On 22 March 2005 the DPPO in Belgrade rejected that criminal complaint for the same reasons relied on in its decision of November 2004, and repeated the information it had provided about the possibility of a subsidiary prosecution. That letter was served on the applicant on 8 April 2005. 33. Following the rejection of the first criminal complaint (see paragraph 30 above), on 17 November 2004 the applicant attempted to take over the prosecution as a subsidiary prosecutor by filing a request for an investigation with the District Court in Belgrade and subsequently, on 11 April 2005, a request to broaden the scope of the investigation (zahtev za proširenje istrage). She relied on and reaffirmed the assertions and requests she had made in her second criminal complaint (see paragraph 31 above). 34. In response to a request of 22 March 2005 by the District Court’s investigating judge, B.P., as well as a reminder sent on October 2005, on 15 January 2006 two forensic pathologists, Dr Z.S. and Dr N.M., from the Military Medical Academy in Belgrade provided an expert opinion. Relying on the previous medical and autopsy reports, they found that the location, distribution and types of injuries observed on Mr Dejan Petrović indicated that they were severe and life-endangering, and that they could undoubtedly have been the result of a fall from the second floor, but only through an open window. In particular, they found that taking into account the circumstances of the incident, including Mr Dejan Petrović’s build, his winter clothes and his handcuffs, the size of the window pane in question and the position of the furniture and the window in the office, it would have been practically impossible for him to have broken through the window and jumped out. Otherwise, it would mean that he had been able to “fly horizontally” over the armchair and break the window with his head exactly in its centre. 35. On 18 April 2006 the investigating judge held a hearing and interviewed the suspects. They repeated their earlier statements. S.K. added that Mr Dejan Petrović had jumped from the floor one metre away from the window and gone through it without touching the armchair, which was under the window; none of the furniture had fallen over or been moved. 36. On 8 May 2006 the investigating judge refused to open the investigation sought by the applicant (izrazio neslaganje sa zahtevom), and referred the case to a three-judge criminal panel (see paragraph 49 below). 37. On 17 July 2006 the three-judge panel of the District Court upheld the investigating judge’s findings, relying on the case file, namely, the “concordant statements of the suspects” and the findings and opinions of the forensic experts in 2004 and 2006, “which [were] consistent and indicate[d] that all the injuries of the deceased could have been caused at the same time by his fall from a height of nine metres onto a hard surface”. The applicant was instructed that she could appeal against that decision within three days from the date on which the decision was served on her and she did so on 2 November 2006, reiterating her previous arguments. 38. On 30 November 2006 the Supreme Court of Serbia rejected the applicant’s appeal as unfounded. In reaching that decision, by reference to the expert commission’s forensic findings of 2004, it upheld the lower court’s reasoning as clear, conclusive and convincing. That decision was served on the applicant on 20 February 2007. 39. On 7 March 2007 the applicant applied to the Chief Public Prosecutor’s Office (inicijativa za podizanje zahteva za zaštitu zakonitosti), urging him to lodge a request with the Supreme Court for the protection of legality (zahtev za zaštitu zakonitosti) against the decision of 30 November 2006 on her behalf. 40. On 27 August 2007 the Chief Public Prosecutor informed the applicant that on that same day he had accepted her motion and had lodged a request for the protection of legality against the decision of 30 November 2006, submitting, in particular, that: (a) the court had based its finding on evidence that had been challenged by the applicant and, which, according to him, had been flawed by inconsistencies; (b) the court had dismissed the applicant’s appeals without addressing her arguments; and (c) the collection and examination of evidence had been superficial, which had resulted in the incorrect and implausible conclusion reached by the court. 41. On 8 February 2008 the Supreme Court of Serbia, sitting in a different composition from that of 30 November 2006, rejected the Prosecutor’s request. Having regard to the case file and a hearing in the presence of the three suspects and their lawyer, the court stated the following: (a) the forensic experts had not ruled out that the victim might have sustained the injuries while breaking the window and falling on a hard surface; (b) no evidence had shown that the suspects had caused the victim any bodily harm by any other means; (c) according to the relevant evidence, there was no reasonable suspicion that the suspects had committed the alleged crimes which would warrant the opening of criminal proceedings; and, lastly, (d) the impugned decision did not ultimately preclude the opening of criminal proceedings if the victim, as a subsidiary prosecutor, submitted new evidence which had not existed or had been unknown at the time of her previous request for an investigation. This decision was served on the applicant on 30 May 2008. 42. In December 2002 the applicant and her husband brought a joint civil action against the respondent State and the Ministry of the Interior to obtain redress for the mental anguish suffered as a consequence of Mr Dejan Petrović’s death. They relied on the Obligations Act and various international human rights instruments. The defendant contested the claim in general, but did not make any further clarification in that respect. 43. In its judgment of 4 June 2007, the First Belgrade Municipal Court clarified that although it could not ascertain a reliable course of the events in question or anyone’s clear fault, this was not its task in any event. Referring to the 2006 forensic experts’ report and Article 172 of the Obligations Act (see paragraphs 34 above and 51 below, respectively), the court concluded that the respondent State should compensate the plaintiffs on the basis of the State’s liability for its officials’ omissions, which had undoubtedly occurred given that Mr Dejan Petrović had sustained injuries and died while in police custody under the supervision of State officials. Pursuant to Articles 200 and 201 of the Obligations Act, it awarded each plaintiff RSD 1,000,000 for non-pecuniary damage, and made an award in respect of costs. 44. That judgment was upheld on the merits by the District Court and the Supreme Cassation Court on 23 February 2009 and 24 June 2010 respectively. The sums awarded were paid on 7 December 2010.