CASE OF HABIMI AND OTHERS v. SERBIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra
5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In November 2006 protests broke in a number of prisons throughout the country regarding demands for the Serbian Parliament to enact specific amnesty-related legislation. 7. On 22 November 2006, according to various official reports, violent conflicts between the two main groups of prisoners occurred in the Niš Penitentiary. It would appear that a radical group of prisoners clashed with the moderate leaders over how to proceed with the protests. 8. On 23 November 2006 the prevailing group of prisoners requested that all prison staff, including the guards, vacate the dormitories. They also reportedly threatened the prison staff with kidnappings should they fail to comply with this request. The prison staff therefore left the three buildings in question and the prisoners subsequently, at approximately 4.45 p.m., barricaded the entrances with furniture. Almost 600 prisoners were thus left without any official supervision. The security situation in the Niš Penitentiary continued to deteriorate thereafter. The prison authorities assessed that there was a very real threat to the life and health of the prisoners who had refused to take part in the revolt. 9. On the same day the governor of the Niš Penitentiary formed a crises team which decided that a large scale intervention was necessary. The Ministry of Internal Affairs produced a detailed action plan in this regard. It included, inter alia, the assessment of the resistance that could be expected on the part of the prisoners, the force needed to overcome this resistance and the need to secure the presence of medical teams during and in the aftermath of the intervention. 10. On 24 November 2006, at around 7.20 a.m., more than 330 special police officers, members of the Gendarmerie, wearing helmets with visors, assisted by prison guards and other security staff, entered the Niš Penitentiary. The protests were brought under control by 8.45 a.m. 11. According to the information subsequently provided by the Ministry of Justice, a total of 79 prisoners had been injured and medically treated. The same document stated that the injuries sustained, except in one case, were slight in character and had been inflicted by means of blunt force trauma. 12. The police maintained that during their intervention a certain number of prisoners had offered active resistance. Many also had certain pre-existing injuries stemming from a violent conflict which had apparently occurred between the prisoners themselves prior to the intervention. The police lastly noted that some prisoners had been injured as a result of the general commotion that had ensued in the course of the intervention, including prisoners being trampled over by other prisons and/or pushed against the furniture which had been moved into the corridors. 13. The applicants claimed that in the course of the intervention and/or shortly thereafter they had been physically abused by the police officers and/or the prisons guards. Concerning the intervention itself, the applicants contended that they had been beaten with baseball bats and truncheons, forced to run between two rows of police officers and/or prison guards who had kicked them as they passed and, lastly, compelled to lie on a cold, concrete floor for hours while being handcuffed. As a result, the applicants allegedly sustained various injuries, such as fractured bones, bruises and wounds all over the body, internal bleeding and brain concussions. 14. On 24 November 2006, at around 9.30 a.m., the investigating judge of the Niš Municipal Court and the Niš Municipal Public Prosecutor took part in an on-site investigation which found a large number of improvised weapons (i.e. knives, blades and metal pipes) on the premises of the Niš Penitentiary. 15. On 28 November 2006, having reviewed the reports of the police officers who had used restraints in the course of the intervention, the commanding officer of the Gendarmerie unit involved decided that the force used had been lawful and proportionate. 16. On 12 January 2007 the Ministry of Internal Affairs forwarded the minutes of the on-site investigation to the Niš Municipal Public Prosecutor’s Office (“NMPPO”). These minutes were accompanied by several police reports, photographic documentation, and a statement listing the objects which had been found in prison following the police intervention. 17. On 8 March 2007 the NMPPO requested information from the police concerning the identity of the injured persons and the reasons for the application of coercive measures. 18. Between 29 March and 11 May 2007 the applicants lodged their criminal complaints against unnamed police officers and a number of prison guards. The latter were, for the most part, identified by their respective first names and/or nicknames. The applicants urged the NMPPO to: (i) establish the full identities of all officials who had participated in their abuse; (ii) obtain the relevant medical records documenting their injuries; (iii) hear a number of other prisoners who had witnessed their ill-treatment; and (iv) ultimately, press criminal charges against all those responsible. 19. On 4 April 2007 the NMPPO ordered the police to submit the reports prepared in accordance with Article 86 of the Police Act (see paragraph 53 below). 20. On 25 April 2007 the police provided the NMPPO with a list of prisoners who had been injured on 24 November 2006 and subsequently treated at the Niš Hospital. The following applicants were among them: Mr Bajram Baždar, Mr Nenad Đokić, Mr Predrag Aleksić, Mr Robert Franc, and Mr Srđan Lomigora. They were all certified as having sustained different kinds of bruises and/or excoriations. On the same occasion the police identified the twelve prison guards to whom the applicants had referred in their criminal complaints. 21. On 7 May and 20 June 2007 the NMPPO requested the police to interrogate the prison guards in question. 22. On 4 August 2007 the police submitted a report, based partly on statements apparently given by a number of prisoners, to the effect that there had been several violent clashes between the various groups of prisoners on 17, 18 and 23 November 2006, resulting in serious injuries and a criminal prosecution. The twelve prison guards were also questioned and all denied ill-treating the applicants. 23. On 10 October 2007 the NMPPO requested the police to hear the applicants and the eyewitnesses specified in the criminal complaints. 24. On 5, 8, 15 and 19 November 2007 police interviewed the following twenty-five applicants on the premises of the Niš Penitentiary: Mr Srđan Lomigora, Mr Siniša Stanković, Mr Vladimir Ivljanin, Mr Miloš Jurišić, Mr Bratislav Rajković, Mr Slađan Matić, Mr Ivan Šekularac, Mr Vladimir Vasiljević, Mr Qerim Binaj, Mr Ivica Jonović, Mr Dejan Stojanović, Mr Branislav Radulović, Mr Zoran Zdravković, Mr Vukašin Kostić, Mr Goran Ristić, Mr Ivan Tanasković, Mr Bajram Baždar, Mr Minuš Belilović, Mr Zoran Vasić, Mr Ognjen Vujović, Mr Aleksandar Simonović, Mr Ivan Gajić, Mr Zoran Marković, Mr Slaviša Strugar and Mr Dane Glušica. All, except for Mr Aleksandar Simonović, confirmed that they had been abused as described at paragraph 13 above. Some also confirmed having witnessed the abuse suffered by other applicants and identified the prison guards in question. Mr Aleksandar Simonović, for his part, refused to give a statement to the police, explaining that he would only testify before a court of law. 25. On 5 December 2007 the NMPPO decided to reject the applicants’ criminal complaints. In so doing, it took into account, inter alia, the statements given by the prison guards, the available medical documents, the on-sight investigation, and the conclusion of the police officers’ commander to the effect that the force used had been lawful and proportionate. Concerning the injuries sustained by the applicants, the NMPPO opined that they had been caused by fights between the prisoners themselves, their falling down the stairs or against the furniture in the course of the operation and/or the prisoners’ resistance to the police who had been trying to restore order to the Niš Penitentiary. Lastly, the NMPPO noted that the proportionality of the entire intervention was best evidenced by the fact that despite the large number of prisoners involved, of which some had been armed and dangerous, and the scale of the intervention only a small number of persons had been injured, sustaining, as they did, mostly slight bodily harm. 26. On 11 December 2007 the applicants requested from the investigating judge of the Niš Municipal Court to establish the identity of all police officers and prison guards concerned, with the intention of starting a “subsidiary prosecution” against them (see paragraphs 46 and 47 below). The applicants stated that they knew the prison guards by their first names or nicknames only, while the identity of the police officers could be established through their commanding officer. 27. On 17 April 2008, despite a prior negative opinion expressed by the investigating judge, the pre-trial Chamber of the Niš Municipal Court ordered that the applicants be heard (see paragraph 47 below). 28. On 19 May and 2 June 2008, on the premises of the Niš Penitentiary, the investigating judge of the Niš Municipal Court heard the following applicants: Mr Zoran Marković, Mr Dejan Stojanović, Mr Nenad Đokić, Mr Ivan Gajić, Mr Bojan Vučković, Mr Branislav Radulović, Mr Vladimir Vasiljević, Mr Minuš Belilović, Mr Ivan Šekularac, Mr Zoran Antić, Mr Nenad Jovanović, Mr Slaviša Strugar, Mr Ivan Tanasković, Mr Aleksandar Simonović, Mr Siniša Stanković, Mr Saša Stevanović, Mr Ivica Jonović, Mr Vukašin Kostić, Mr Bajram Baždar, Mr Zoran Vasić, Mr Ognjen Vujović and Mr Qerim Binaj. All applicants, except for Mr Minuš Belilović, Mr Zoran Antić, Mr Nenad Jovanović, Mr Aleksandar Simonović and Mr Vukašin Kostić recounted the alleged abuse suffered at the hands of the police officers and/or prison guards. Some of them identified, by first name or nickname, the prison guards in question but none could provide any details regarding the identity of the police officers since they had visors covering their faces. Mr Minuš Belilović, however, stated that despite having been ill-treated by the police he did not want anyone to be convicted for the incident and had therefore decided to withdraw his complaint. Mr Zoran Antić and Mr Nenad Jovanović stated, respectively, that they were not the persons of the same name and surname who had complained of police brutality. Mr Aleksandar Simonović described his alleged ill-treatment by the police and prison guards but stated that “out of fear” he did not want to name the persons concerned. Mr Vukašin Kostić related that he was sorry to have been involved in the incident at all and would like to withdraw his criminal complaint. 29. Though duly informed of the hearing held on 2 June 2008, the applicant’s counsel did not attend it. On 3 June 2008 he informed the investigating judge that he had had to attend another hearing, in a different case, scheduled earlier. 30. On 3 June 2008 the investigating judge invited the applicants’ counsel to provide the court with information as to the whereabouts of a number of applicants who had in the meantime been released or transferred to another penitentiary. 31. On 16 June 2008 the applicants’ counsel responded by stating that he was not obliged to comply with this request. The investigating judge should instead have addressed his request to the Niš Penitentiary. 32. On 30 June and 2 July 2008 the Zabela Penitentiary and the Vranje District Prison informed the investigating judge that four applicants, Mr Miloš Jurišić, Mr Vladimir Ivljanin, Mr Robert Franc and Mr Dane Glušica, were not in their custody. 33. On 4 July 2008 the investigating judge heard another two applicants, Mr Srđan Lomigora and Mr Zoran Zdravković, in his own office. They recounted the abuse allegedly inflicted by the police and/or the prison guards but could not identify the police officers because of their visors. Mr Zoran Zdravković further stated that since he had only recently arrived to the Niš Penitentiary he could not identify the prison guards in question. 34. On the same day the Niš Penitentiary informed the investigating judge that out of the twelve applicants who had yet to be heard some had been moved to other penitentiaries, specifying which, and some released, specifying their home addresses. It subsequently transpired that one of these applicants, Mr Ramadan Ljatifi, had escaped from prison. 35. On 18 July 2008 the investigating judge of the Raška Municipal Court, acting on the request of the Niš Municipal Court, heard another applicant, Mr Darko Savić, who described the alleged abuse suffered in the course of the police intervention. He could not, however, identify the officers because of their visors. 36. Between 5 September and 5 December 2008 the investigating judge of the Niš Municipal Court received minutes of the interrogations of another seven applicants, specifically Mr Vladimir Ivljanin, Mr Adnan Habimi, Mr Miloš Jurišić, Mr Zoran Matović, Mr Robert Franc, Mr Bratislav Rajković and Mr Dane Glušica, carried out before the municipal courts in Prokuplje, Leskovac, Kraljevo, Sremska Mitrovica and Požarevac. All applicants reaffirmed that they had been beaten by the police and/or prison guards during the intervention and all, except for Mr Miloš Jurišić, identified by name the prison guards who had taken part in the alleged abuse. Mr Robert Franc further gave a physical description of one of the police officers who had allegedly ill-treated him since this officer’s face had been visible. Mr Vladimir Ivljanin, in addition, provided a detailed written statement containing a thorough account of his alleged abuse during the intervention and subsequently. In support of these assertions he offered the names of the prison guards in question, the name of the police officer who had allegedly beaten him, a list of eleven prison guards who could allegedly confirm that he had been denied medical assistance, and the names of several dozen prisoners and prison gourds who had witnessed his alleged abuse and/or seen his injuries. 37. On 10 November 2008 applicant Mr Ivica Jonović withdrew his request filed with the investigating judge. 38. On 22 December 2008 the investigating judge informed the applicants’ counsel that he had complied with the instructions of the pre-trial Chamber and that it was now up to the applicants to decide whether to take over the prosecution of the case in the capacity of subsidiary prosecutors within a period of eight days (see paragraphs 46-49 below). 39. On 31 December 2008 the applicants’ counsel complained to the investigating judge that he was effectively deprived of the possibility to take over the prosecution of the case on behalf of his clients. Specifically, the investigating judge had, in breach of Articles 257 and 259 of the Code of Criminal Procedure, failed to provide him with the case file which could have enabled him to be informed of the available evidence and of the identities of the perpetrators in question (see paragraphs 48 and 49 below). Also, a period of eight days was simply too short. 40. On 8 January 2009 the investigating judge addressed the applicants’ counsel. He stated, inter alia, that the latter had shown very little interest in the case to date, having never sought access to the case file or attended the hearings. Moreover, some of the applicants had themselves indicated that they had lost all contact with their lawyer. Finally, the investigating judge recalled that counsel acting on behalf of subsidiary prosecutors were not entitled to be provided with the case file but could review it on the court’s own premises. 41. On 31 January 2007 the NMPPO decided that there were no grounds to bring a criminal case against any of the prisoners involved in the revolt and explained that they had never had the intent to use force in order to escape from prison which was a necessary precondition for the existence of the crime provided for in Article 338 of the Criminal Code (see paragraph 44 below). 42. On 21 January 2009 a number of applicants, specifically Mr Adnan Habimi, Mr Ljubomir Simić, Mr Srđan Lomigora, Mr Bojan Vučković, Mr Bajram Baždar, Mr Branislav Radulović, Mr Darko Savić, Mr Qerim Binaj and Mr Nenad Đokić, requested from the Niš Hospital, through their counsel, to provide them with copies of their respective medical files. On 23 January 2009, however, the Niš Hospital declined to do so since this would be in breach of Article 37 of the Health Care Act (see paragraph 55 below). 43. Based on the copies of the partly inconsistent documents containing medical information, received by the Court after the communication of the present application, the Government maintained that between 24 November and 30 November 2006 the following applicants had not received any medical treatment or, if they had, no physical injuries had been recorded in the course of the examination: Mr Miloš Jurisić, Mr Ramadan Ljatifi, Mr Vladimir Vasiljević, Mr Ivica Jonović, Mr Nenad Jovanović, Mr Vukašin Kostić, Mr Ivan Tanasković, Mr Minuš Belilović, Mr Ivan Gajić, Mr Slaviš Strugar, Mr Zoran Matović and Mr Zoran Antić. The remaining applicants, in view of the available documentation, seemed to have sustained injuries essentially corresponding to those described at paragraph 13 above. Three applicants, Mr Adnan Habimi, Mr Bojan Vučković and Mr Mr Srđan Lomigora, also submitted photographs of their respective injuries.