CASE OF MAFALANI v. CROATIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
5. The applicant was born in 1982 and is currently serving a prison sentence in Lepoglava. 6. On 23 October 2008 I.P., a well-known Croatian journalist, and his business associate N.F. were killed by the explosion of an improvised device placed under I.P.’s car, which was parked in front of his publishing company. The explosion also caused injuries to two employees of the publishing company and considerable material damage on the surrounding buildings and nearby parked cars. 7. On 23 October 2009 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: the “State Attorney’s Organised Crime Office”) indicted several persons in the Zagreb County Court (Županijski sud u Zagrebu) on charges of conspiracy to kill I.P. and for putting that into action. The applicant was indicted for having participated in the group by aiding and abetting the direct perpetrators. 8. On 3 November 2010 the Zagreb County Court found the applicant guilty as charged and sentenced him to sixteen years’ imprisonment. 9. The applicant’s conviction was upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 8 February 2012. 10. Following the attack against I.P. and his publishing company, the intelligence available to the police showed that the applicant and several other persons could be implicated in the events and it was therefore decided to arrest them. 11. The Police Director (Glavni Ravnatelj Policije) issued an oral order that the arrests be carried out by an antiterrorist team of the Special Police Forces (Specijalna policija, Antiteroristička jedinica Lučko; hereinafter: the “ATJ”). 12. On 29 October 2008, at around 6.05 p.m., the ATJ stormed into the applicant’s flat, where he was at the moment together with his sister and grandmother. 13. According to the applicant, immediately after breaking into the flat, the AJT officers threw him on the floor and started punching him over the head and body. 14. According to the Government, an ATJ team of six officers broke into the applicant’s flat and ordered him to lie down. As he started resisting, the police officers applied the throwing technique of “foot sweep”, which made the applicant to lose his balance and while falling on the ground he hit the table with his head. He was immediately offered medical assistance but he refused. 15. A report available to the Court signed by the Commander-in-chief of the Special Police Forces (Zapovjednik Specijalne Policije) of 30 October 2008, which is essentially a verbatim of a report of one of the arresting ATJ officers (see paragraph 36 below), in its relevant part concerning the circumstances of the applicant’s arrest, reads: “... the intervention with a view to arrest [the applicant] started by the ATJ officers forceful breaking the front doors using the [battering ram]. Inside the flat they found the suspect and an older woman to whom they issued several orders: “Police, lie down on the floor”. As the suspect resisted, two officers approached him and grabbed him by the arms but he continued to resist. [The officers] then applied the technique of foot sweep and pulled him to the ground. As he was still trying to set himself free he was handcuffed. While he was falling on the ground he hit the table with his face ... Afterwards ... [the officers] offered to the suspect medical assistance but he refused it saying that he felt good.” 16. According to the applicant, following his arrest he was blindfolded and taken to a remote place by a river, where he was again beaten up and his head was immersed in the water, forcing him to confess to the murders of I.P. and N.F. and some other crimes. The police officers also continued to beat him up while taking him to the police station. 17. According to the Government, following the applicant’s arrest he was taken to the parking area of the police station used by the Organised Crime Unit of the Zagreb Police Department (Policijska uprava zagrebačka, Sektor kriminalističke policije, Odjel organiziranog kriminaliteta; hereinafter: the “police”) where he was kept in the minivan of the ATJ in the period between 6.45 and 8.30 p.m., awaiting other suspects to be arrested and brought to the police station. 18. The available report of the arresting ATJ officer (see paragraph 36 below) in this respect indicates that the applicant was brought to the parking area of the police station at 7.00 p.m. where he was kept in the minivan of the ATJ until 7.40 p.m. and then surrendered to the police inspectors. 19. Once when he was brought to the police station on 29 October 2008 at around 8.30 p.m. the applicant was placed in a room under the control of two police inspectors M.A. and M.M. 20. According to reports of these two police inspectors dated 18 April and 14 May 2012 respectively, the applicant was for a while guarded by an ATJ officer but then, at unspecified time, they requested that officer to leave the room. The police inspectors also submitted that the applicant had been handcuffed when he was brought to the police station and then, at unspecified time but sometimes soon after his arrival, the handcuffs were taken off. They also acknowledged that they had seen visible injuries on the applicant’s head and nose for which he had been allegedly offered medical assistance but he had refused it. The emergency had been called in only after the order of their superiors. 21. The emergency service came to the police station on the same day at 10.55 p.m. The relevant record of the applicant’s examination, in so far as legible, reads: “Brought to the police station. Visible open injury above the left eye; 1,5 centimetre long. Contusion and haematoma of the nose with the possible fracture. Regular general status. The patient refuses to go to the hospital and further treatment.” 22. The applicant stayed in the police station until 30 October 2008 at 8.30 p.m. During that period he was taken to searches of his house and car and he was questioned by the police inspectors M.A. and M.M. in the presence of a lawyer and a Deputy at the State Attorney’s Organised Crime Office. 23. According to the applicant, throughout his stay in the police station he was tightly constrained, beaten and threatened that he should make no problems concerning his injuries. 24. According to the Government, during his stay in the police station the applicant was kept in one of the offices ordinarily used by the police officers. Apart from several minutes upon his arrival to the police station, the applicant was not handcuffed. He also had access to the toilet and drinking water. He was obliged to sit on a chair as there were no beds but it was impossible to take him to the detention unit as the investigative actions were still ongoing. In any case, he had an opportunity to ask for a rest and food but he did not make any such request. 25. On 30 October 2008, at around 8.30 p.m., the applicant was taken to the Police Detention and Escort Unit (Jedinica za zadržavanje i prepratu; hereinafter: “JZP”) for a rest. A report accompanying his transfer, signed by the Chief of the police and dated 30 October 2008 indicated, inter alia, that he had no visible injuries. 26. A report signed by the on-duty officer at JZP, dated 30 October 2008, indicated that the applicant was admitted to the detention unit with visible injuries of his face. 27. According to the applicant, during his stay in JZP he was offered a sandwich but he could not eat due to a strong jaw pain. 28. According to the Government, during his stay in JZP the applicant was placed in a room which was equipped with beds and sanitary facility. The room was appropriately heated and ventilated and had access to natural and artificial light. The hygiene and sanitary conditions were good and the applicant was provided with food and water. 29. On 31 October 2008 at 9.15 a.m. the police took the applicant from JZP to participate in a further search of his premises. 30. On the same day, at around 6.45 p.m., the applicant was brought for questioning before an investigating judge of the Zagreb County Court. He decided to remain silent concerning the charges held against him, but with regard to his injuries the applicant stressed: “The only thing I would point out is that before I was taken in [to the police station] I fell in my flat and according to the findings of the doctors who were called in to the police station, I sustained a nose fracture, most probably with dislocation. I refused the medical assistance in order to get out from the police station as soon as possible.” 31. The investigating judge put no additional questions concerning this matter nor did he take any further actions in that respect. 32. Following the applicant’s questioning, an investigation into the explosion was opened in respect of him and several other persons. At the same time, an investigating judge of the Zagreb County Court ordered his pre-trial detention. 33. On 3 November 2008 the applicant was examined in Zagreb Prison Hospital (Zatvorska bolnica u Zagrebu) and several medical records were drafted. 34. One medical record available to the Court indicates that the applicant sustained his injuries after a fall on 30 October 2008, whereas two other medical reports refer to several blows on the applicant’s head and nose. 35. Based on his medical examination in Zagreb Prison Hospital, the applicant was diagnosed with contusions of head, nose and shoulder and a nose fracture without dislocation, as well as a distortion of a metal implant in his hand related to an old injury. His general medical condition at the time was regular and he had a smaller hematoma on the left side of his head and nose and smaller hematomas below both eyes. He also had a smaller hematoma on the left shoulder and a visible dislocation of the metal implant in his hand but without a fresh fracture. In July 2009 the applicant again saw a doctor who indicated testicular problems. 36. On 29 October 2008 one of the arresting ATJ officers reported on the applicant’s arrest to the Commander of the ATJ. In his report, he indicated that the ATJ had been requested to arrest the applicant in connection with a suspicion of double murder. The report also provides the details of the arrest already observed above (see paragraphs 15 and 18 above). 37. On 30 October 2008 the Commander of the ATJ requested the Commander-in-chief of the Special Police Forces to assess the lawfulness of the ATJ’s actions; and the latter forwarded that request to the Police Director. 38. On the same day the Police Director assessed the reports concerning the ATJ actions by indicating the following: “This is to inform you that I find the use of force, namely the physical force and the measures of restraint, used by the ATJ team on 29 October 2008 during the arrest of Amir Mafalani ... lawful within the meaning of sections 54, 55 and 57 of the Police Act and sections 30, 31, 32 and 35 of the By-law on the police conduct.” 39. In October 2011 the applicant, through lawyers, requested Zagreb Prison Hospital and the emergency services to provide him the relevant medical records concerning the injuries he had sustained during his arrest on 29 October 2008. He also requested the police to provide him the relevant documents related to his arrest. 40. On 2 November 2011 the police replied that all relevant reports were confidential and could not be disclosed. This reply was forwarded for information to the State Attorney’s Organised Crime Office. 41. On 11 November 2011, after receiving the reply, the applicant complained to the State Attorney’s Organised Crime Office asking why an effective investigation, within the meaning of Article 3 of the Convention, had not been conducted. 42. The State Attorney’s Organised Crime Office replied on 16 November 2011, indicating that the applicant should consult the relevant domestic law on the use of police force and that, in case of any complaint to that effect, he could always lodge a criminal complaint with the competent State Attorney’s Office. 43. In the meantime, the applicant obtained the requested medical records. 44. On 15 February 2012 the applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) against unidentified perpetrators alleging ill-treatment during his arrest and stay in the police station. 45. On 20 February 2012 the Zagreb Municipal State Attorney’s Office informed the applicant that his criminal complaint had been forwarded to the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) for further examination. 46. On 3 March 2014 the Zagreb County State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that there was no reasonable suspicion that a criminal offence had been committed. It relied on a written report of the Police Director and written reports of the police inspectors M.A. and M.M. It also observed the applicant’s medical documentation and search and seizure records as well as the interrogation records in the criminal proceedings against him. 47. On 31 January 2012 the applicant instituted civil proceedings in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) against the State claiming damages in connection with his alleged ill-treatment by the police during his arrest and stay in the police station. 48. The Zagreb Municipal State Attorney’s Office, representing the State, challenged the applicant’s civil action on the grounds that the police had acted in accordance with the law and that their use of force had been caused by the applicant’s conduct. 49. During the proceedings, the Zagreb Municipal Civil Court heard the applicant and several witnesses, including the applicant’s sister and grandmother, one of the applicant’s co-suspects and the police inspectors M.A. and M.M. , as well as the Police Director. 50. The applicant’s grandmother testified that she had seen the police officers immediately attacking and hitting the applicant as they had entered the flat, and his sister confirmed that she had heard him screaming and had also seen him being dragged around by the police. 51. The applicant’s co-suspect in his testimony submitted that he had seen the applicant seriously injured in the police station, while the police inspectors M.A. and M.M. denied any ill-treatment, as did the Police Director who also stated that the police had monopoly of the use of force. 52. In his statement of 14 January 2015 the applicant contended that during his arrest he had been severely beaten by the ATJ officers all over his head and body. Afterwards he had been taken near a river and again beaten, subjected to mock execution and immersed in the water. When he was finally brought to the police station, the uniformed police officers continued to beat him with the acquiescence of the police inspectors M.A. and M.M. He was also tightly constrained to a chair and at one point, while he was dragged from one office to another, he felt strong pain in his shoulder. Later on, during his transfer to the investigating judge, two uniformed police officers who escorted him said that he should say nothing about the ill-treatment and that he would soon go home. In the ensuing period, he started feeling various health problems related to the ill-treatment and has been seeing doctors regularly. 53. The civil proceedings are still pending.