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FIRST
SECTION
CASE OF GLADOVIĆ v. CROATIA
(Application
no. 28847/08)
JUDGMENT
STRASBOURG
10 May
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gladović v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly
Kovler,
President,
Nina
Vajić,
Christos
Rozakis,
Peer
Lorenzen,
Elisabeth
Steiner,
Khanlar
Hajiyev,
George
Nicolaou,
judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 12 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28847/08) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Mr Nebojša Gladović
(“the applicant”), on 8 April 2008.
- The
applicant was represented by Mr Z. Novaković, a lawyer
practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š.
StaZnik.
- On
12 March 2010 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and is currently serving a prison term in
Lepoglava State Prison.
- On
26 January 2007 the applicant was placed in pre-trial detention in
Split Prison in connection with an investigation into suspected drug
possession.
- A
psychiatric report of 15 February 2007, commissioned for the purposes
of the criminal proceedings against the applicant before the Split
County Court, indicates that the applicant was a long-term drug
addict and that this, together with his long stays in prison, his way
of life and behavioural patterns, manifested in inappropriate
responses to various personal and social circumstances. He showed
signs of a personality disorder with emotional distance, paranoid
elements and histrionic disorder. Long-term drug abuse had caused
some organic changes together with altered perception, concentration,
thought processes and behaviour. Intense therapy was recommended.
- After
the investigation was complete, a bill of indictment was filed by the
Split County State Attorney’s Office on 2 March 2007 and the
criminal trial began before the Split County Court.
- The
Government submitted that the applicant had been identified as a
difficult prisoner and had caused several incidents such as
disturbing mass in the prison chapel on 11 March 2007; shouting
through the window of his cell during the night of 26 March 2007; and
kicking the door of his cell on 28 March 2007.
- On
29 March 2007 two prison guards, Z.V. and F.K., each drew up a report
on the use of force on the applicant.
The
report drawn up by Z.V. reads:
“On 29 March 2007 at 8.20 a.m. when I was doing my
round of the prisoners’ cell no. 29 I heard four or five strong
blows of a bench against the door of cell no. 44. After that the Head
of the Second Ward, F.K., in the presence of J.Č. and me, opened
the cell door. The detainee Nebojša Gladović was shouting
and threw himself at F.K. F.K. attempted to resist him with physical
force but [the detainee] ignored his order to stop resisting, after
which I used a rubber truncheon twice on his left arm. The detainee
stopped resisting and I stopped using force. F.K. put him in an elbow
lock and took him to the isolation cell no. 14. After a detailed
search of him we tied him up to ensure order and security.”
The
report drawn up by F.K. reads:
“On 29 March 2007 at 8.20 a.m. detainee Nebojša
Gladović threw a metal bench against the cell door four or five
times while shouting: ‘I want to make a telephone call’.
I opened the cell door in the presence of Z.V. and apprentice J.Č.
and the detainee started to walk towards me while shouting and moving
his hands. I tried to calm him by using physical force and ordering
him to stop resisting. He ignored my order and [F.]V. used a rubber
truncheon twice on his left arm. The detainee then stopped resisting
and the use of force also stopped. I put him in an elbow lock and
took him to the isolation cell no. 14 where, together with [F.]V., I
carried out a detailed search of the detainee and then tied him up to
ensure order and security. The Head of the Ward, Z.R., was informed
of everything.”
- On
30 March 2007 the Head of the Security Ward, Z.R., drew up a report
for the prison governor, the relevant part of which reads:
“... During his time in detention, detainee
Nebojša Gladović ... has consistently behaved improperly
towards the prison personnel, and in the past few days he has
regularly breached prison rules by shouting during the night and day
in his cell and through the cell window, and even verbally insulting
the officers. Warnings and conversations with the detainee have not
led to any lasting results.
On 29 March 2007 at 8.20 a.m. detainee Nebojša
Gladović, in cell no. 44, where he was together with three other
detainees, started to shout: ‘I want to make a telephone call’.
Immediately after that he threw a wooden bench four or five times
hard against the cell door. The officers on duty, F.K. and Z.V.,
together with apprentice J.Č., opened the cell [door]. Detainee
Gladović then threw himself at the officers who firstly tried to
calm him by physical force, but without success, and then, with the
others holding him, Z.V. correctly used a rubber truncheon to hit the
detainee twice on his arm, after which the active resistance of the
detainee stopped. Then F.K. put him in an elbow lock, which was
justified, and took him to the isolation cell, where he was
handcuffed to ensure order and security until 5.40 p.m. ... when the
detainee was returned to his cell.
After this event the detainee was seen by the prison
doctor.
Detainee Nebojša Gladović refused to give
his statement about this incident and said that he would complain to
a court about the way the officers had treated him.”
- The
applicant was seen by the prison doctor on 29 and 30 March 2007.
The medical report of 29 March 2007 indicates that the applicant
complained of pain in his shoulder. No sign of injury was found. The
medical report of 30 March 2007 shows that the applicant had a
violet-coloured haematoma on his left arm measuring 10 x 20
centimetres.
- On
30 March 2007 the prison governor filed a report with the Head Prison
Administration in Zagreb about the use of force against the applicant
on 29 March 2007. She stated that that day at 8.20 a.m. the
applicant, placed in cell no. 44, had started to shout, protesting
against a decision refusing his request to use the telephone that
day. Then he had thrown a metal bench against the cell door several
times. When three guards, F.K, Z.V. and J.Č., had entered the
cell the applicant had thrown himself at them. The attempt of F.K. to
gain control over the applicant by physical force had failed and Z.V.
used a rubber truncheon to hit the applicant twice on his left arm.
When the applicant had stopped resisting, the guards had put him in
an elbow lock and handcuffed him. He had remained handcuffed until
5.40 p.m. the same day when he had been returned to his cell.
- In
view of the prison governor, the force used against the applicant had
been justified.
- This
report relied on the above-cited reports by the prison guards
concerned.
- In
his complaint submitted on 2 April 2007 to the judge conducting the
criminal trial against him in the Split County Court, the applicant
alleged, inter alia, that on the previous morning six to seven
prison guards had hit him with rubber truncheons when he had been
lying on the floor.
- On
the same day a request for the institution of disciplinary
proceedings against the applicant was lodged by the governor of Split
Prison with the judge conducting the criminal trial against the
applicant in the Split County Court. The request was in connection
with several incidents, including the one of 29 March 2007. It was
alleged that that day at 8.20 a.m. the applicant had shouted and hit
the cell door with a metal bench. When the guards had entered the
cell the applicant had attempted to attack them and even after they
had gained control over him by using force, he had continued to
verbally insult them. The request was accompanied by the reports
mentioned in the previous paragraph.
- On
13 April 2007 the judge found the applicant guilty of, inter alia,
“disturbing the House order on 29 March 2007 at about 8.20 a.m.
in cell no. 44 where he had been placed by shouting and hitting
the metal bench against the cell door and, after the prison guards
had entered the cell, by attempting to attack them, and after
physical force and security measures had been used against him, by
continuing to verbally insult the prison guards” which amounted
to “improper behaviour towards State officials, attempting to
physically attack State officials and insulting State officials”.
This decision was based on the reports by the prison personnel and
the applicant’s written statement of 2 April 2007. The relevant
part of the reasoning reads:
“... the reports by the officials ... F.K. and
Z.V. and the written statement of the defendant Nebojša
Gladović were submitted.
On the basis of the case file and the said statements
... this court finds that the defendant Nebojša Gladović
acted exactly as stated in the operative part of this decision.
This court has accepted the above-cited reports of the
officials as the truth because they describe the events in detail and
logically, and on the assessment of these, [this court] finds that
the defendant, on ... 29 March [2007], disturbed House order by
shouting and hitting a metal bench against the cell door and then
also verbally insulting the prison guards ...
As to the statements of the defendant Nebojša
Gladović, this court does not find them truthful and considers
that in his written submissions he, at least in the part where he
describes the events in question, is trying to avoid his disciplinary
liability while the remaining part of his statement is illogical and
unconvincing, making allegations which have no connection with the
case in issue.
...”
II. RELEVANT DOMESTIC LAW
- The
relevant part of the Code of Criminal Procedure (Official Gazette
nos. 62/2003 – Zakon o kaznenom postupku) provides as
follows:
Article 2
“...
(3) Where not otherwise provided by law, the State
Attorney shall bring a criminal prosecution where there is a founded
suspicion that an identified individual has committed a criminal
offence liable to official prosecution and where there are no
statutory obstacles for prosecution of that person.”
Article 171
“(1) All State bodies and all legal entities are
obliged to report criminal offences liable to official prosecution,
whether they have been informed thereof or have learned about such
offences on their own.
...”
Article 173
“(1) A criminal complaint shall be lodged with a
competent State Attorney in writing or orally.
...
(3) Where a criminal complaint has been lodged with a
court, a police force or a State Attorney lacking competence, they
shall receive the complaint and immediately forward it to the
competent State Attorney.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that on 29 March 2007 he had been beaten up by
the prison guards in Split Prison and that no effective investigation
had been carried out in that respect. He relied on Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government argued that the applicant had failed to exhaust domestic
remedies because he had not complained to the judge conducting the
criminal proceedings against him. Although in his complaint of
2 April 2007 he mentioned that the prison guards had hit him
with a rubber truncheon, he admitted that he had provoked them.
- The
applicant argued that he had satisfied the exhaustion requirement by
complaining about the ill-treatment in question to the judge
conducting the criminal proceedings against him.
- The
Court notes that by telling the judge conducting the criminal trial
against him that the prison guards had hit him with a rubber
truncheon while he had been lying on the floor, the applicant
complied with his duty to inform the relevant national authorities of
ill-treatment against him. In this connection, the Court is also
mindful of the relevant provisions of the Code of Criminal Procedure,
which require a court receiving a criminal complaint involving
allegations of a criminal offence liable to public prosecution to
forward it immediately to the competent State Attorney. In the
Court’s view, there is no doubt that the allegations of
ill-treatment by the prison guards amount to such a criminal offence.
The applicant’s complaint was submitted to a judge of the Split
County Court, which was in compliance with Article 173 § 3 of
the Code of Criminal Procedure.
- As
to the Government’s argument that although the applicant
alleged in his submission of 2 April 2007 that the prison guards had
hit him with rubber truncheons while he was lying on the floor, he
had also stated that he had provoked it, the Court reiterates that
the protection against ill-treatment under Article 3 of the
Convention is absolute and that it cannot be justified by the
behaviour of the victim and that the use of force by State officials
is allowed only where it is strictly necessary in the given
circumstances.
- It
follows that the applicant duly informed the relevant national
authorities of the substance of his complaints under Article 3 of the
Convention and that therefore the Government’s objection as to
the exhaustion of domestic remedies cannot be accepted.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ arguments
- The
applicant maintained that on 29 March 2007, while placed in a cell
directly above the office of the prison governor, he had called out
to the governor through the window of his cell asking to be received
by him. He had done this because his ten written and repeated oral
requests to the prison guards to see the prison governor had been
ignored. He had kicked the cell door, after which six to seven prison
guards had rushed into the cell, grabbed him, taken him out and
thrown him to the floor and then had punched, kicked and beaten him
with truncheons all over his body. He had curled up on the floor,
protecting his head with his hands and had given no resistance.
- In
his written submissions of 2 April 2007 he had complained about this
incident to the judge conducting the criminal proceedings against
him, but she had ignored it. No proper investigation had been carried
out.
- He
further argued that it was normal for there to be no sign of injury
inflicted by a rubber truncheon visible on the first day as these
were only visible from the second day and that this was supported by
the medical report of 30 March 2007 which stated that he had had a
large violet-coloured haematoma on his left arm.
- The
Government submitted that the applicant had been identified as a
difficult prisoner and had caused several incidents such as
disturbing mass in the prison chapel on 11 March 2007; shouting
through the window of his cell during the night of 26 March 2007; and
kicking the door of his cell on 28 March 2007.
- They
alleged that on 29 March 2007 the prison guards had used force on the
applicant by hitting him twice with a rubber truncheon and putting
him in an elbow lock only in order to prevent the applicant from
causing further disturbances because he had been shouting and hitting
a metal bench against the door of his cell.
- The
Government argued that the force used against the applicant on
29 March 2007 did not reach the level of severity necessary for
the application of Article 3 of the Convention. The force had been
used only in order to prevent the applicant from attacking a prison
guard. The prison doctor who had seen the applicant the same day had
not noticed any injuries to his body.
- The
Government further argued that in view of the conclusions of the
psychiatric report of 15 February 2007 (see paragraph 16 above), the
reliability of the applicant’s allegations of ill-treatment by
the prison guards was questionable.
- As
regards the procedural obligation under Article 3 of the Convention,
the Government argued that all relevant circumstances had been
assessed by the judge conducting the criminal trial against the
applicant.
2. The Court’s assessment
(a) Severity of the treatment
- The
Court reiterates that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The
assessment of this minimum is relative: it depends on all the
circumstances of the case, such as the nature and context of the
treatment, its duration, its physical and mental effects and, in some
instances, the sex, age and state of health of the victim (see
Costello-Roberts v. the United Kingdom, 25 March 1993, § 30,
Series A no. 247-C, and A. v. the United Kingdom, 23
September 1998, § 20, Reports 1998-VI).
- Treatment
has been held by the Court to be “inhuman” because, inter
alia, it was premeditated, was applied for hours at a stretch and
caused either actual bodily injury or intense physical and mental
suffering (see Labita v. Italy [GC], no. 26772/95, §
120, ECHR 2000-IV). Treatment has been considered “degrading”
when it was such as to arouse in its victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them and
possibly breaking their physical or moral resistance (see Hurtado
v. Switzerland, 28 January 1994, opinion of the Commission, §
67, Series A no. 280, and Wieser v. Austria, no. 2293/03,
§ 36, 22 February 2007).
- As
to the present case, the Court notes that it is not disputed between
the parties that on 29 March 2007 physical force was used against the
applicant by prison guards. The Government also admitted that the
prison guards had hit the applicant twice with a rubber truncheon.
- At
this juncture the Court considers it appropriate to observe that it
has emphasised that persons in custody are in a vulnerable position
and that the authorities are under a duty to protect their physical
well-being (see Tarariyeva v. Russia, no. 4353/03, § 73,
ECHR 2006-... (extracts); Sarban v. Moldova, no. 3456/05,
§ 77, 4 October 2005; and Mouisel v. France,
no. 67263/01, § 40, ECHR 2002-IX). In respect of a person
deprived of his liberty, any recourse to physical force which has not
been made strictly necessary by his own conduct diminishes human
dignity and is in principle an infringement of the right set forth in
Article 3 of the Convention (see Sheydayev
v. Russia, no. 65859/01, § 59, 7 December 2006;
Ribitsch v. Austria, 4 December 1995, § 38, Series A
no. 336; and Krastanov v. Bulgaria, no. 50222/99, § 53,
30 September 2004).
- The
prison doctor saw the applicant on 29 and 30 March 2007. The report
of 29 March indicates that the applicant complained of pain in his
shoulder. The report of 30 March found a large haematoma on the
applicant’s left arm. In view of the above principles, the
Court finds that in the present circumstances where physical force
was used on a detained person by the prison guards, this injury was
sufficiently serious to reach the “minimum level of severity”
under Article 3 of the Convention.
(b) Concerning the alleged inadequacy of
the investigation
(i) General principles
- Where an individual raises an arguable claim that he
or she has been seriously ill-treated by State authorities in breach
of Article 3, that provision, read in conjunction with the State’s
general duty under Article 1 of the Convention to “secure
to everyone within their jurisdiction the rights and freedoms defined
in ... [the] Convention”, requires by implication that there
should be an effective official investigation. This investigation
should be capable of leading to the identification and punishment of
those responsible. Otherwise, the general legal prohibition of
torture and inhuman and degrading treatment and punishment would,
despite its fundamental importance, be ineffective in practice and it
would be possible in some cases for agents of the State to abuse the
rights of those within their control with virtual impunity (see
Assenov and Others, cited above, § 102; Labita,
cited above, § 131; and Muradova v. Azerbaijan, no.
22684/05, § 100, 2 April 2009). The minimum standards as to
effectiveness defined by the Court’s case-law also include the
requirements that the investigation must be independent, impartial
and subject to public scrutiny, and that the competent authorities
must act with exemplary diligence and promptness (see, for example,
Menesheva v. Russia, no. 59261/00, § 67, ECHR
2006-III).
- The
investigation into serious allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill-founded conclusions to close their investigation or as the basis
of their decisions (see Assenov and Others, cited above, §
103 et seq.). They must take all reasonable steps available to them
to secure the evidence concerning the incident, including, inter
alia, eyewitness testimony and forensic evidence (see Tanrıkulu
v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104 et
seq., and Gül v. Turkey, no. 22676/93, § 89, 14
December 2000). Any deficiency in the investigation which undermines
its ability to establish the cause of injuries or the identity of the
persons responsible will risk falling foul of this standard.
(ii) Application of these principles in
the present case
- As
to the present case, the Court notes that the judge conducting the
criminal proceedings against the applicant also issued a decision
concerning the disciplinary offences committed by the applicant,
including the incident of 29 March 2007. This decision was adopted on
the basis of the written reports by the prison personnel and the
applicant’s written submissions.
- However,
in these proceedings no assessment was made as to the use of force
against the applicant in order to establish the intensity of the
force used and whether it had been strictly necessary. A forensic
report could have possibly also verified the applicant’s
allegations that he had been hit while he was lying on the ground.
Furthermore, the facts as submitted by both the applicant and the
Government indicate that the incident in question took place in the
applicant’s cell. However, at no stage was it established
whether there were other inmates from the same cell present in order
to take their statements, since, according to the reports by the
prison authorities, the applicant shared that cell with three other
inmates.
- Instead,
the judge satisfied herself with accepting the version of the events
as presented by the prison guards. In view of the importance of the
guarantees against ill-treatment under Article 3 of the Convention,
the Court cannot accept that such approach is in conformity with the
procedural requirements of that Article, in particular in view of the
fact that other, relevant evidence could have been obtained, such a
forensic report and witness statements from the applicant’s
cellmates.
- As
to the Government’s arguments that, in view of the conclusions
of the psychiatric report, the applicant’s allegations of
ill-treatment cannot be seen as reliable, the Court considers that
the fact that the applicant suffers from mental problems does not
dispense the relevant national authorities from properly
investigating allegations of ill-treatment by State officials in
circumstances where it is undisputed that some form of force was used
by those officials and where the medical documentation shows that the
victim sustained injuries.
- There
has accordingly been a violation of the procedural aspect of Article
3 of the Convention.
(c) Concerning the alleged ill-treatment
(i) General principles
- The
Court reiterates that in respect of a person deprived of his liberty,
recourse to physical force which has not been made strictly necessary
by his own conduct diminishes human dignity and is in principle an
infringement of the right set forth in Article 3 (Ribitsch,
cited above, § 38; and Krastanov v. Bulgaria, no.
50222/99, § 53, 30 September 2004).
- The
requirements of an investigation and the undeniable difficulties
inherent in the fight against crime cannot justify placing limits on
the protection to be afforded in respect of the physical integrity of
individuals (Ribitsch, cited above, § 38). In this
connection, the Court recalls that Article 3 enshrines one of the
fundamental values of democratic society. Even in the most difficult
of circumstances, such as the fight against terrorism or organised
crime, the Convention prohibits, in absolute terms, torture or
inhuman or degrading treatment or punishment, irrespective of the
victim’s conduct (see Chahal v. the United Kingdom,
15 November 1996, § 79, Reports 1996-V, and
Assenov and Others, cited above, § 93).
- Allegations
of ill-treatment must be supported by appropriate evidence. To assess
this evidence, the Court adopts the standard of proof “beyond
reasonable doubt” – but adds that such proof may follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (Labita,
cited above, § 121). The Court has held on many occasions that
where a person is injured while in detention or otherwise under the
control of the police, any such injury will give rise to a strong
presumption that the person was subjected to ill-treatment (Corsacov
v. Moldova, no. 18944/02, § 55, 4 April 2006; and Bursuc
v. Romania, no. 42066/98, § 80, 12 October 2004). It is
incumbent on the State to provide a plausible explanation of how the
injuries were caused, failing which a clear issue arises under
Article 3 of the Convention (Selmouni v. France [GC], no.
25803/94, § 87, ECHR 1999 V; and Ribitsch, cited
above, § 34).
- Where
domestic proceedings have taken place, it is not the Court’s
task to substitute its own assessment of the facts for that of the
domestic courts and, as a general rule, it is for those courts to
assess the evidence before them (Klaas v. Germany, 22
September 1993, § 29, Series A no. 269). Though the
Court is not bound by the findings of domestic courts, in normal
circumstances it requires cogent elements to lead it to depart from
the findings of fact reached by those courts (see Klaas, cited
above, p. 18, § 30). Where allegations are made under
Articles 2 and 3 of the Convention, however, the Court must apply a
particularly thorough scrutiny (see, mutatis mutandis,
Ribitsch, cited above, p. 24, § 32).
- The
Court is also mindful of the potential for violence that exists in
penitentiary institutions and of the fact that disobedience by
detainees may quickly degenerate into a riot (see Gömi and
Others v. Turkey, no. 35962/97, § 77, 21 December
2006). The Court has previously accepted that the use of force may be
necessary to ensure prison security, to maintain order or prevent
crime in penitentiary facilities. Nevertheless, as noted above, such
force may be used only if indispensable and must not be excessive
(see Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12
April 2007).
(ii) Application of these principles in
the present case
- In
the present case the applicant did not dispute that he had provoked
the incident by shouting and hitting a metal bench against the door
of his cell. However, he denied the Government’s allegations
that he had attempted to attack the prison guards. He alleged that
when the prison guards had opened the door of his cell they had
immediately rushed in and grabbed him, taken him out and thrown him
to the floor. They had then punched, kicked and beaten him with
truncheons all over his body whilst he had curled up on the floor,
protecting his head with his hands and putting up no resistance.
- The
Government on the other hand did not deny the use of force but
claimed that it had been necessary owing to the applicant’s
attack on one of the guards.
- The Court notes that the incident in question occurred
when the applicant started to shout and hit a metal bench against the
door of his cell. Four officers entered the cell, clearly
outnumbering the applicant. The findings of the domestic court do not
indicate that any of them sustained injuries during the incident. The
medical record of 30 March 2007 indicates that the applicant
sustained quite a large haematoma to his left arm. In these
circumstances where it is undisputed that the applicant was hit by a
prison guard with a rubber truncheon and, as a result, sustained
injuries, the burden rests on the Government to demonstrate with
convincing arguments that the use of force was not excessive (see
Matko v. Slovenia, no. 43393/98, § 104, 2 November
2006).
- However,
as explained above, the national judge considering the case based her
conclusions solely on the written reports produced by the officers
involved. She did not hear them, and she did not hear the applicant.
Furthermore, she made no serious effort to asses the most important
aspect of the case – whether the force used by the prison
guards was necessary in the given situation. In order to establish
the facts relevant for that issue she took no steps to verify the
version of the events given by the officers involved. No attempts
were made to establish whether any of the applicant’s cellmates
were present at the scene and, if so, to hear their evidence. No
forensic reports were ordered which could have established how the
injuries were caused and brought clarification to the applicant’s
allegations that he had been hit while lying on the ground. Without
any such assessment the Court is unable to see on what basis the
domestic authorities satisfied themselves that the force used against
the applicant had been necessary.
- Consequently,
regard being had to the applicant’s allegations of
ill-treatment, corroborated by the medical reports, and to the
circumstances in which the applicant sustained the injuries, the
Court considers that the Government have not furnished any convincing
or credible arguments which would provide a basis to explain or
justify the degree of force used against the applicant.
- The
Court therefore concludes that the State is responsible under Article
3 on account of the inhuman and degrading treatment to which the
applicant was subjected by the prison guards.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 150,000 Croatian kunas (HRK) in respect of
non-pecuniary damage.
- The
Government deemed the sum claimed excessive and unsubstantiated.
- The
Court awards the applicant 9,000 euros (EUR) in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed HRK 20,000 for the costs and expenses incurred
before the Court, of which 50% is in respect of the submissions of 8
April 2010 and the remaining 50% in respect of the submissions of
19 November 2009.
- The
Government deemed the sum claimed excessive.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. Regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 1,350 for the proceedings before the
Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of the
procedural aspect of Article 3 of the Convention;
- Holds that there has been a violation of the
substantive aspect of Article 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, which are to be converted into Croatian kunas at the rate
applicable on the date of settlement:
(i) EUR
9,000 (nine thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,350 (one thousand three hundred and fifty euros), plus any tax that
may be chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Anatoly
Kovler
Deputy Registrar President
