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FORMER
FIFTH SECTION
CASE OF
GORGIEV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 26984/05)
JUDGMENT
STRASBOURG
19 April
2012
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 Gorgiev v. the
former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Former Fifth Section), sitting as a
Chamber composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna
Yudkivska,
Julia Laffranque, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26984/05) against the former
Yugoslav Republic of Macedonia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Macedonian national,
Mr Gorgi Gorgiev (“the applicant”), on 18 July 2005.
- The
applicant was represented by Mr P. Paparov, a lawyer practising in
Štip. The Macedonian Government (“the Government”)
were represented by their Agent, Mrs R. Lazareska Gerovska.
- The
applicant alleged that the State had not discharged its obligations,
both substantive and procedural, under Article 3 of the Convention in
relation to injuries inflicted on him by a bull while in prison.
- On
25 August 2009 the President of the Fifth Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Sveti Nikole.
A. Background of the case
- By
a court decision of 11 May 1999, the applicant was sentenced to six
months’ imprisonment for causing serious injury (a broken
forearm) to a third person. On 2 December 1999 he
started serving his sentence in Štip Prison (“the
prison”) where he was responsible for livestock.
- On
24 April 2000 he was attacked by a bull, which was not castrated, as
a result of which he sustained numerous bodily injuries. After the
incident he was transferred by prison vehicle to Štip
hospital, where he underwent surgery. The State covered the medical
expenses. On 25 April 2000 the bull was put down. On 9 May 2000 the
applicant was released from the hospital. The same day, Mr M.K., the
prison governor, ordered him to be released early from prison on
account of good behaviour.
B. Civil proceedings for compensation (“the
compensation proceedings”)
- On
28 November 2000 the applicant brought a civil action against the
State and the prison (“the defendants”) claiming
non-pecuniary damages for the injuries sustained by the bull. His
claim was based, inter alia, on sections 173 and 174 of the
then valid Obligations Act (see paragraphs 26 and 27 below). He
claimed that the bull had attacked him despite the fact that the
prison authorities had been alerted about the aggressiveness of the
bull, by himself and a certain G. (the first name of Mr G.S., as
established in the course of the compensation proceedings,
later referred to as Mr G.S.).
- At
a hearing of 23 April 2001, Mr G.S. stated that he, with the
applicant and Mr M.S., had been looking after eighteen animals,
including the bull. He confirmed that the bull had attacked him and
other prisoners, including Mr M.S. and Mr Z.S., and that Mr A.B., a
prison guard on duty, had been warned on several occasions before the
incident about the aggressiveness of the bull. In a certified written
statement of 24 December 2001, Mr M.S., a prisoner at that time,
confirmed that the bull had been aggressive and that Mr A.B. had been
informed of the fact.
- Mr
A.B. stated that the applicant, in view of his previous experience in
handling cattle, had asked to work on the prison farm. Due to his
good behaviour, the prison authorities had granted his request
despite initial concerns related to his criminal record. After a
week’s work-related induction course, the applicant started
working on the prison farm. He remained on the farm for a month
before he was allowed pasture duties. That corresponded to the
practice already established in the prison. After the incident the
bull was lame, which according to him, had been due to the injuries
on his buttocks. He had called Mr K.M., a vet, to examine the bull.
The next day, in the presence of Mr K.M., the bull had been put down.
He denied that the applicant or any other prisoner had ever alerted
him that the bull was aggressive.
- Mr
I.K., a prisoner at that time who worked on the prison farm, stated
that before the incident prisoners had often provoked the bull. He
had not heard that any prisoner had ever mentioned, to the prison
authorities or to him, that the bull was aggressive.
- At
a hearing of 23 April 2002, Mr K.M. stated that the bull had been
regularly examined and treated when needed. He denied that it had
been aggressive. He confirmed that immediately after the incident he
had visually examined the bull and noticed injuries to the rear of
its body, the buttocks and testicles, which according to him, had
been inflicted by a blunt object. Those injuries were confirmed in
the post mortem report which Mr K.M. had drawn up the same
day.
- The
applicant objected to this report, arguing, inter alia, that
(1) it was inaccurate, (2) it was biased and had been ordered by the
State, as was evident from the date, 1 February 2001, which had been
stamped on it and (3) it could not have been post mortem,
since on 24 April 2000, the day it had allegedly been drawn up, the
bull was still alive.
- At
a hearing on 7 October 2002 the applicant stated that owing to his
forty-year experience in rearing livestock he had been assigned to
work on the prison farm. Initially, the bull was not aggressive, but
it had become anxious during the cows’ mating season. He
confirmed Mr M.S.’s statement (see paragraph 9 above) and
denied that he had ever hit the bull. He maintained that he had
alerted Mr A.B. about the aggressiveness of the bull, but that he had
never informed, orally or in writing, Mr M.K., the prison governor.
- On
7 October 2002 the first-instance court ruled partly in favour of the
applicant, ordering the State to pay him compensation in the amount
of 300,000 Macedonian denars (MKD, equivalent to approximately 4,890
euros (EUR)) for the injuries, which an expert established as
serious. The court established that the State owned the bull, which
was considered dangerous within the meaning of section 173 of the
Obligations Act (see paragraph 26 below). Referring to the above
statements, the court established that the bull had been aggressive
and had attacked others. It further rejected as unsubstantiated the
arguments of the State that the applicant had contributed to the
incident by hitting the bull. In this connection it disregarded the
expert report of Mr K.M. for the reasons advanced in the applicant’s
objection (see paragraph 13 above).
- Both
parties appealed.
- On
5 September 2003 the Štip Court of Appeal remitted the case
for fresh consideration so that the lower court could establish who
had owned the bull.
- In
this respect, the defendants submitted in evidence extracts from the
court register according to which an economic unit S. (“the
economic unit”), which operated as a separate legal entity
within the prison, had been the owner of the bull. The economic unit
was established on 15 April 1993 by a decision of the Government. It
was run by Mr M.K.
- In
a submission of 30 January 2004, the applicant argued that the
defendants had been responsible for the injuries, in particular due
to the fact that they had failed, despite having been alerted about
the aggressiveness of the bull, to take any measures to protect him.
- At
a hearing of 19 March 2004, Mr M.K. stated that no prisoner had ever
complained about the aggressiveness of the bull, either to Mr A.B. or
to him. He confirmed that the economic unit was the owner of the
bull, that it was a separate legal entity and that he ran it, as
provided for in section 70 of the Execution of Sanctions Act (see
paragraph 34 below). He further submitted that the applicant had
received a monthly work-related allowance from the economic unit.
- The
applicant reiterated that he had complained orally to Mr A.B. about
the aggressiveness of the bull on several occasions, but that no
complaint whatsoever had been submitted to Mr M.K.
- On
19 April 2004 the first-instance court dismissed the applicant’s
claim, as the defendants did not have the necessary capacity to act
in the proceedings. Relying on the extract from the court register
(see paragraph 18 above) and Mr M.K.’s statement, it found
that the economic unit was the owner of the bull, and that
accordingly the defendants bore no responsibility, under section 174
of the Obligations Act, for the injuries the applicant had sustained.
In support was an invoice dated after the killing of the bull,
according to which the prison had paid the economic unit for the
meat. The applicant was ordered to pay the defendants’ costs.
- On
15 May 2004 the applicant appealed, arguing that no consideration had
been given to the State’s responsibility for prisoners’
health and physical integrity, given that he had been injured while
in custody. He argued that prisoners’ rights and freedoms
should be guaranteed by putting in place control and supervisory
mechanisms. He further complained that the first-instance court had
failed to establish whether the State, being responsible to protect
him while in custody, had undertaken all necessary measures to avoid
damage from occurring. In this latter respect, he complained that the
prison authorities, despite having been informed that the bull was
aggressive, had failed to take any measure to protect him (the
applicant). Lastly, he argued that he had been ordered to look after
livestock by the prison authorities.
- On
20 January 2005 the Štip Court of Appeal dismissed the
applicant’s appeal, finding no grounds to depart from the
established facts and reasoning given by the lower court. The
applicant received this decision on 21 February 2005.
- On
28 February 2005 the applicant requested the public prosecutor to
lodge a request for the protection of legality with the Supreme
Court. On 20 April 2005 the public prosecutor informed him that there
were no grounds for using that remedy.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. Obligations Act of 1978
- Section
173 of the Obligations Act, as relevant at that time, provided that
damage related to a dangerous item was presumed to have been caused
by that item, if not otherwise proven.
- Under
section 174, the owner of a dangerous item was responsible for any
damage caused by it.
- Under
section 376, a compensation claim became time-barred three years
after the victim became aware of the damage and the person
responsible. The absolute time-bar for compensation was five years
after the occurrence of the damage.
B. Execution of Sanctions Act of 1997
- Section
6 of the Execution of Sanctions Act, as relevant at that time,
provided for respect for the human dignity and the physical and moral
integrity of persons serving a sentence.
- Section
12 (2) and (3) provided that no one should be subjected to torture or
to inhuman or degrading treatment or punishment. The right to
security of person had to be ensured.
- Under
section 21 (3), convicted persons could not be required to perform
activities that were dangerous and detrimental to their health.
- Under
section 67, one or more economic units for prisoners to work in could
be organised within a prison.
- Section
68 provided that the Government should set up the economic units.
- Under
section 70, the prison governor or a person authorised by the
governor was to run the economic unit.
- Section
71 provided that the economic unit was a separate legal entity liable
for its debts. It was to have a separate account.
- Section
111 provided that prisoners worked, in principle, in economic units.
- Under
section 113, prisoners were entitled to a work-related allowance.
This was to be regulated by a decision of the prison governor.
- Section
164 provided that prisoners could lodge an oral complaint with the
prison governor or other person authorised by the governor about a
violation of their rights or other irregularities.
- Under
section 165, prisoners could also lodge a written complaint with the
prison governor within eight days of the alleged violation.
- Under
section 166, the prison governor was required to consider the
allegations and to render a decision within fifteen days of receipt
of the complaint. The prisoner could appeal against that decision
before the Execution of Sanctions Directorate (“the
Directorate”).
- Section
167 provided that the Directorate was required to examine the
arguments of the appeal and reach a decision within thirty days of
receipt. That decision could be subject of judicial review. The
prisoner could seek a judicial decision even if the Directorate had
not decided on his or her appeal.
C. Criminal Code (Кривичен
законик)
- Section
142 of the Criminal Code prohibits torture
and provides for imprisonment between three months and five years.
- Section
143 of the Criminal Code provides
that a person who, in the performance of his duties, mistreats,
intimidates, insults or generally treats another in such a manner
that his human dignity or personality is humiliated is to be punished
by a term of imprisonment of six months to five years.
- Under
section 294 of the Criminal Code, a person who failed, in the absence
of any risk, to report to a competent authority or to take any
measure against a fire, inundation, explosion or car accident or to
remove any danger to the life or body of an individual would be fined
or sentenced to a maximum of one year’s imprisonment.
D. Criminal Procedure Act
- Section
16 of the Criminal Procedure Act provides that criminal proceedings
must be instituted at the request of an authorised prosecutor. In
cases involving offences subject to prosecution by the State of its
own motion or on an application by the injured party, the authorised
prosecutor is the public prosecutor, whereas in cases involving
offences for which only private charges may be brought the authorised
prosecutor is the private prosecutor. If the public prosecutor finds
no grounds for the institution or continuation of criminal
proceedings, his role may be assumed by the injured party, acting as
a subsidiary prosecutor under the conditions specified in the Act.
- Section
56 provides, inter alia, that where the public prosecutor
finds that there are no grounds for prosecuting an offence which may
be subject to State prosecution,
he shall notify the injured party of his decision within eight days.
He shall also inform the injured party that he is entitled to conduct
the prosecution himself. The latter may take over or continue the
prosecution within eight days.
- Under
section 141, anyone can report a criminal offence subject to State
prosecution. The complaint is submitted to the public prosecutor,
orally or in writing.
E. Recommendation of the Committee of Ministers of the
Council of Europe to member states on European Prison Rules (Rec
(2006)2, adopted on 11 January 2006)
“... 26.13 Health and safety precautions for
prisoners shall protect them adequately and shall not be less
rigorous than those that apply to workers outside.
26.14 Provision shall be made to indemnify prisoners
against industrial injury, including occupational disease, on terms
not less favourable than those extended by national law to workers
outside ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Articles 3 and 5 of the Convention that
the prison authorities had failed to protect his personal security,
his physical and moral integrity, despite the fact that they had been
alerted about the aggressiveness of the bull, and that he had no
effective right of compensation for the injuries sustained. The Court
considers that these complaints should be analysed only under Article
3 as a complaint that the State failed to comply, firstly with its
procedural obligation to investigate the applicant’s
allegations that no preventive measure had been taken despite the
fact that the prison authorities had been alerted about the alleged
aggressiveness of the bull, and secondly with its substantive
obligation to protect the applicant from being injured’.
Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. Six-month time-limit
- The
Government argued that the application had been submitted on 18
September 2005, namely more than six months after the applicant had
received the Court of Appeal decision on 21 February 2005 (see
paragraph 24 above).
- The
applicant contested this objection.
- The
Court notes that the applicant’s application form, duly
completed, was sent to it on 18 July 2005, as was confirmed by the
postmark on the letter sent to the Court by surface mail. The
application was therefore submitted within the six-month time-limit
specified in Article 35 § 1 of the Convention. The
Government’s objection must accordingly be rejected.
2. Non-exhaustion of domestic remedies
(a) The parties’ submissions
- The
Government objected that the applicant had not exhausted effective
domestic remedies. In particular, he had not requested the public
prosecutor to institute criminal proceedings in which those
responsible could have been identified and punished for acts
punishable under sections 142 or 143 of the Criminal Code (see
paragraphs 42 and 43 above). He had also deprived himself, if the
public prosecutor had rejected his complaint, of the opportunity to
take over the prosecution as a subsidiary prosecutor (see paragraph
44 above). Consequently, he had prevented the State from examining
his complaints under Article 3 of the Convention, since the
compensation proceedings had not been an adequate avenue. In
addition, the applicant, who had been represented by a lawyer of his
own choosing, was responsible for having sought compensation against
the wrong defendants. Lastly, the applicant had failed to submit a
fresh compensation claim against the economic unit, given the fact
that the absolute time-bar (see paragraph 28 above) had not yet
expired when he was served with the Court of Appeal’s decision.
- The
applicant submitted that he had brought the incident to the attention
of the public prosecutor with his request for legality review
proceedings of 28 February 2005 (see paragraph 25 above). The public
prosecutor had dismissed that request and had failed to initiate
criminal proceedings of his own motion, despite being entitled to do
so under the Criminal Proceedings Act. A fresh compensation claim
against the economic unit would have lacked any prospect of success,
given that the absolute time-bar for claiming non-pecuniary damages,
which according to him was three years, had already expired.
(b) The Court’s assessment
- The
Court considers that the question raised by the Government is closely
linked to the merits of the applicant’s complaint under Article
3 of the Convention. Consequently, its examination should be joined
to the assessment of the merits of that complaint.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) 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’ submissions
- The
applicant reiterated his arguments that the prison authorities had
been alerted before the incident to the aggressiveness of the bull
and that despite that fact they had failed, contrary to section 12 of
the Execution of Sanctions Act (see paragraph 30 above) to take any
measure to protect his physical integrity. The evidence admitted in
the compensation proceedings had been in support of his arguments.
- The
Government did not dispute that the injuries sustained by the
applicant reached the minimum threshold required under Article 3 of
the Convention. However, they considered that no responsibility could
be attributed to the State, given the fact that the prison governor,
as established in the course of the compensation proceedings, had not
been alerted to the alleged aggressiveness of the bull. Nor there had
been any information in the records of the veterinary hospital
responsible for the livestock in the prison that the bull had been
aggressive. In addition, the bull’s behaviour had been
unpredictable and the authorities should not have the impossible
burden placed upon them of preventing every claimed risk from
materialising.
- They
further maintained that the first-instance court had heard
considerable evidence about the alleged aggressiveness of the bull
and the prior knowledge of the authorities. Consequently, the fact
that the compensation proceedings ended with a final decision
dismissing the applicant’s claim for lack of standing of the
defendants to be sued did not mean that the investigation had not
been thorough and effective. Lastly, they submitted a copy of a
decision rendered by Mr M.K. by which a prisoner had been fined for
physically attacking livestock in breach of the prison’s
disciplinary rules.
2. The Court’s assessment
- The
Court will first examine the applicant’s complaint that there
was no investigation into the allegations that the State had failed
to take any preventive measures to protect him despite the fact that
the authorities had been alerted about the alleged aggressiveness of
the bull.
(a) Procedural aspect of Article 3 of the
Convention
(i) General principles
- The
Court reiterates that when an individual makes an arguable claim that
he has suffered treatment infringing Article 3 at the hands of agents
of the State, it is the duty of the national authorities to carry out
“an effective official investigation” capable of
establishing the facts and identifying and punishing those
responsible (see Okkalı v. Turkey, no. 52067/99, §
65, ECHR 2006 XII (extracts). Such a positive obligation cannot
be considered in principle to be limited solely to cases of
ill treatment by State agents (see M.C. v. Bulgaria,
no. 39272/98, § 151, ECHR 2003 XII).
- The
investigation into serious allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to establish the facts, hold accountable those at fault and
provide appropriate redress to the victim (see Dodov v.
Bulgaria, no. 59548/00, § 83, 17 January 2008). They
should not rely on hasty or ill-founded conclusions to close their
investigation or as the basis of their decisions. 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 (see Assenov and Others v. Bulgaria,
28 October 1998, § 103, Reports of Judgments and
Decisions 1998 VIII and Boicenco v. Moldova, no.
41088/05, § 123, 11 July 2006).
- This
obligation does not necessarily require the provision of a
criminal-law remedy in every case (see Ciechońska v.
Poland, no. 19776/04, § 66, 14 June
2011). Compensation for the non-pecuniary damage should in
principle be part of the range of available remedies if the
infringement of the right to personal integrity is not caused
intentionally (see, mutatis mutandis, Šilih v.
Slovenia [GC], no. 71463/01, §
194, 9 April 2009) or in cases which do not concern an infliction of
treatment contrary to Article 3 of the Convention, but rather a
failure by the authorities to protect persons from a breach of their
rights under Article 3 of the Convention (see, mutatis mutandis,
Z and Others v. the United Kingdom [GC], no. 29392/95, §
109, ECHR 2001 V).
(ii) Application
of the foregoing principle to the present case
- The
Court notes that the applicant brought a civil action against the
State and the prison seeking non-pecuniary damages for the injuries
suffered from the bull. This action was capable, in principle, of
providing a fact finding forum with the power to attribute
responsibility for acts or omissions involving the breach of the
applicant’s rights under Article 3 of the Convention. The
compensation proceedings however ended with no decision on the
merits, since the domestic courts found that the State and the prison
did not own the bull, and accordingly lacked the required capacity to
be sued.
- The
Court further observes that, as the Government argued, the applicant
did not make a criminal complaint to the public prosecutor, thereby
initiating a procedure that was capable of leading to the
identification and prosecution of those responsible. Such a complaint
could have been lodged under section 141 of the Criminal Proceedings
Act (see paragraph 45 above). However, the applicant’s omission
in this respect did not release the State from the duty to carry out
“an official investigation”, as required under Article 3
of the Convention. In this connection the Court reiterates that the
authorities must act of their own motion once the matter has come to
their attention. They cannot leave it to the initiative of the
individual either to lodge a formal complaint or to take
responsibility for the conduct of any investigative procedures (see,
mutatis mutandis, McKerr v. the United Kingdom,
no. 28883/95, § 111, ECHR 2001 III). The duty to
investigate was more apparent in view of the fact that the applicant
was, at the time, a prisoner, and accordingly under the care and
responsibility of the authorities (see, mutatis mutandis,
Pankov v. Bulgaria, no. 12773/03, §
50, 7 October 2010). In the present case, the public
prosecutor remained inactive despite the fact that alleged offence
was subject to State prosecution. Furthermore, no step to uncover the
truth was taken after the applicant brought the incident to the
attention of the public prosecutor in his request for legality review
proceedings (see paragraph 25 above). An investigation that would
lead to establishing criminal liability under section 294 of the
Criminal Code (see paragraph 44 above) for any omissions imputable to
State officials leading up to the incident, would have had a
deterrent effect on the commission of similar offences in future (see
Öneryıldız v. Turkey [GC], no. 48939/99, §
118, ECHR 2004 XII).
- Furthermore,
no measure has been taken with a view to establishing whether any
individual was disciplinarily liable in relation to the applicant’s
allegations (see Nikolova and Velichkova v. Bulgaria, no.
7888/03, § 63, 20 December 2007). The killing of the bull
the day after the incident is insufficient because it does not
address the questions of responsibility for the events leading up to
the accident, and the civil proceedings, which ended inconclusively,
were brought at the applicant’s request and cannot be
considered as an alternative to an investigation in the present case.
- In
view of the foregoing, the Court dismisses the Government’s
preliminary objection and finds that there has been a violation of
Article 3 of the Convention on account of the State’s failure
to carry out “an effective official investigation” into
the applicant’s allegations.
(b) Substantive aspect of Article 3 of the
Convention
(i) General principles
- The
Court reiterates that Article 3 enshrines one of the most fundamental
values of democratic society. It prohibits in absolute terms torture
or inhuman or degrading treatment or punishment. In addition to the
primary obligation of Article 3 of the Convention not to subject
individuals to torture or to inhuman or degrading treatment or
punishment, the obligation on High Contracting Parties under Article
1 of the Convention to secure to everyone within their jurisdiction
the rights and freedoms defined in the Convention, taken in
conjunction with Article 3, requires States to take measures designed
to ensure that individuals within their jurisdiction are not
subjected to torture or inhuman or degrading treatment (see Z and
Others, cited above, § 73).
- This
obligation indisputably applies in the particular context of
dangerous activities, where, in addition, special emphasis must be
placed on regulations geared to the special features of the activity
in question, particularly with regard to the level of the potential
risk to human lives. They must govern inter
alia the security and supervision of the activity
and must make it compulsory for all those concerned to take practical
measures to ensure the effective protection of citizens whose lives
might be endangered by the inherent risks (see Öneryıldız
, cited above, § 90).
(ii) Application of the foregoing
principle to the present case
- As
to the applicant’s complaint that the State failed to comply
with its substantive obligation to protect him from being injured,
the Court considers that the situation in the instant case differs
from the Osman (see Osman v. the United Kingdom, 28
October 1998, Reports of Judgments and Decisions 1998 VIII)
and Paul and Audrey Edwards cases (see Paul and Audrey
Edwards, cited above) in that it does not concern the requirement
of personal protection of one or more individuals identifiable in
advance as the potential target of a criminal act by a third person,
including co-prisoners. The present case is about determining whether
there was a positive obligation on the authorities to protect the
applicant, who while in prison handled livestock, from attack by the
bull. In this connection the Court reiterates that persons in
custody, as was the applicant, are in a vulnerable position and the
authorities are under a duty to protect them (see Paul and Audrey
Edwards, cited above, § 56). This duty was underlined in the
domestic legislation, and also formed the background to the first
instance decision of 7 October 2002 (see paragraphs 15 and 29-31
above).
- In
the present case, the Court notes that the applicant started serving
the prison sentence on 2 December 1999. He was assigned to work on
the prison farm, where at that time there were eighteen animals,
including the bull. He worked on the farm until 24 April 2000, when
he was seriously injured by the bull.
- In
the course of the compensation proceedings, oral evidence was
admitted as to whether the prison authorities had been alerted before
the incident about the alleged aggressiveness of the bull. The
applicant, Mr G.S. and Mr M.S. confirmed that the bull’s
aggressiveness had been orally communicated to Mr A.B., the guard on
duty in the prison, on several occasions (see paragraphs 9 and 14
above). The applicant further specified that the bull had become
aggressive after he had started to work on the prison farm (see
paragraph 14 above).
- On
the other hand, Mr I.K., a prisoner at the time, stated that there
was no suggestion that the bull had been aggressive (see paragraph 11
above). Furthermore, Mr A.B. and Mr M.K. denied that they had been
alerted about the alleged aggressiveness of the bull (see paragraph
10 and 20 above). The same was confirmed by Mr K.M., the examining
vet (see paragraph 12 above). The first-instance court, in its
decision of 7 October 2002 (see paragraph 15 above), found that the
bull had been aggressive and that the applicant had not contributed
to the aggressiveness, but this decision did not become final.
- Having
regard to this inconclusive evidence, which was partly due to the
lack of an effective investigation (see paragraphs 63-66 above), the
Court cannot conclude “beyond reasonable doubt”, the
standard of proof which it applies in Article 3 cases (see, mutatis
mutandis, Jasar v. the former Yugoslav Republic of
Macedonia, no. 69908/01, § 48, 15 February 2007), that the
relevant authorities were actually aware, before the incident, that
the bull presented a risk to the applicant’s physical
integrity. The question is therefore whether the Government complied
with the obligation to protect the applicant, in the circumstances of
the case and given that an uncastrated bull is an inherently
dangerous animal, as the domestic courts recognised.
- The
Court notes that the applicant was assigned to work on the prison
farm owing to his forty-year experience in rearing livestock (see
paragraph 14 above). No evidence was presented that the applicant had
been in any way opposed to this engagement (see paragraphs 10 and 14
above). Furthermore, before he had taken up that duty, he had
attended a week’s work-related induction course and remained on
the farm for a month before he was allowed pasture duties (see
paragraph 10 above). The bull had been also under constant medical
supervision by the examining vet (see paragraph 12 above). Lastly,
the prison had in place a disciplinary system that deterred prisoners
from attacking livestock, whose aim was not only to protect the
animals, but also prisoners (see paragraph 58 above). In these
circumstances, there is nothing to suggest that there were any
particular reasons requiring the authorities to take any special
measures, over and above those discussed above, to reduce any
potential risk. Consequently, no responsibility can be attributed to
the State for having permitted the applicant to handle the bull.
- In
the unusual circumstances of the present case, the Court considers
that the State was not under an obligation to take more steps to
protect the applicant from the bull than it did, such that there has
not been a violation of the substantive aspect of Article 3 of the
Convention on account of the State’s positive obligation to
protect the applicant from the bull.
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 EUR 30,000 as just satisfaction for the effects of
the incident. It appears that this figure included EUR 15,000 plus
interest in respect of non-pecuniary damage for pain, fear and
disfigurement. In this respect, he relied on the expert evidence
regarding his injuries (see paragraph 15 above), the discharge notice
from the hospital and a medical certificate of 30 May 2002.
- The
Government contested these claims as unsubstantiated and excessive.
- The Court considers that the applicant’s claim
for and non-pecuniary damage loss that he had sustained is
sufficiently linked to the violation found. It therefore awards him
EUR 5,000 in respect of non-pecuniary damage, plus any tax that may
be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 3,300 for the costs and expenses related
to the domestic proceedings, of which EUR 800 referred to the costs
and expenses incurred by the defendants which the applicant, as an
unsuccessful party, was ordered to reimburse (see paragraph 22
above). He produced a list of costs for the remainder. Lastly, he
claimed EUR 500 for the costs and expenses incurred before the Court.
No supporting document was submitted in respect of this later claim.
- The
Government contested these claims as unsubstantiated and 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 (see Editions Plon v. France, no.
58148/00, § 64, ECHR 2004 IV). In the present case, regard
being had to the documents in its possession and the above criteria,
the Court considers it reasonable to award the sum of EUR 1,400, plus
any tax that may be chargeable to the applicant, for the costs and
expenses incurred in the domestic proceedings. On the other hand, in
the absence of any supporting document, the Court rejects the
applicant’s claim for the costs and expenses incurred in the
proceedings before it (see Parizov v. the former
Yugoslav Republic of Macedonia,
no. 14258/03, § 72, 7 February 2008).
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
- Joins to the merits the Government’s
objection on non exhaustion of domestic remedies and dismisses
it;
- Declares the application admissible;
- Holds that there has been a violation of
Article 3 of the Convention on account of the failure of the
authorities to conduct an effective investigation into the
applicant’s allegations;
- Holds that there has been no violation of
Article 3 of the Convention on account of the alleged failure of
the authorities to protect the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to
be converted into the national currency of the respondent State, at
the rate applicable at the date of settlement:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,400 (one thousand and four hundred 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 19 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
