PETROVIC v. SERBIA - 40485/08 - Chamber Judgment [2014] ECHR 776 (15 July 2014)

In the case of Petrović v. Serbia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Josep Casadevall, President,
          Alvina Gyulumyan,
          Ján Šikuta,
          Dragoljub Popović,
          Johannes Silvis,
          Valeriu Griţco,
          Iulia Antoanella Motoc, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 24 June 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 40485/08) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Ms Radmila Petrović (“the applicant”), on 1 August 2008.

2. The applicant, who had been granted legal aid, was represented by Ms T. Drobnjak, a lawyer practising in Belgrade. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.

3. The applicant alleged, in particular, that no effective investigation had been conducted into the circumstances of her son’s ill-treatment and death.

4. The application was initially allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court).

5. By a partial decision of 4 January 2012, the Court decided to communicate to the Government the complaint concerning the State’s failure to carry out an effective investigation and declared the remainder of the application inadmissible.

6. On 1 February 2014, the Court changed the composition of its Sections (Rule 25 § 1). This case was thus assigned to the newly composed Third Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant was born in 1950 and lives in Belgrade. The applicant’s son, Mr Dejan Petrović, was born in 1973 and died on 15 February 2002 in hospital, a month after reportedly having fallen from the window of a police station in Belgrade.

A. Events surrounding the death of Mr Dejan Petrović

8. At about 9.30 p.m. on 16 January 2002 Mr Dejan Petrović was arrested by the Vračar Police Department (OUP Vračar-SUP Beograd) on suspicion of having snatched a woman’s handbag earlier that evening and was kept overnight in police custody. Mr Dejan Petrović, then aged twenty-nine, was apparently known to the police as an alleged drug user and as having been involved in similar incidents previously.

9. According to the police reports, the following morning at 8.30 a.m. Mr Dejan Petrović was questioned by three police officers, D.K., S.K. and N.K. Mr Dejan Petrović allegedly confessed that he had committed the robbery in question and had hidden a sum of money (around 20,000 Serbian dinars (RSD)) in his home. After an unsuccessful search of the Petrović family’s flat that morning, the police officers left the house together with Mr Petrović in handcuffs.

10. The applicant alleged that her son had been visibly distressed and very pale, and his mouth had been yellowish. On the way out, he had turned to her and said “call a lawyer, I have done nothing, they will kill me”.

11. According to the incident report of 17 January 2002 drawn up by Major M.M., the police officers’ superior, Mr Dejan Petrović had been brought back handcuffed, at around 10.30 a.m., to office no. 24 on the second floor of the Vračar police station to be questioned further. As they entered the office, while D.K. was approaching his desk, S.K. was standing and N.K. was closing the office door, Mr Dejan Petrović suddenly rushed forward, jumped head first through a closed window, breaking a window pane, and fell out into the courtyard. None of the police officers had been able to prevent it. The police officers ran out to the courtyard and, as Mr Dejan Petrović showed some signs of still being alive, they took the handcuffs off, while some other colleagues called an ambulance.

12. Around noon, the police informed the applicant’s family that Mr Dejan Petrović had jumped from the second floor of the police premises and that he had been taken to the emergency unit of the Serbian Clinical Centre in Belgrade.

13. Upon their arrival at the emergency unit, the applicant and her husband (Mr Dejan Petrović’s father) were informed that at around 11.10 a.m. the hospital had admitted an unidentified and severely injured patient who had jumped from the second floor of a building. He was in a comatose state, with a fracture of his left ribs and femur and contusion and haematoma of the liver, and was undergoing surgery that could take several hours.

14. While the surgical operation was being carried out, the applicant’s husband went to the Vračar Police premises. Following an on-site inspection (see paragraphs 18-19 below), he was shown the scene of the incident. The applicant claimed that her husband, as well as certain media, had initially been informed that their son, who had been handcuffed and in his winter jacket, had been alone in the office when he had jumped through the window, but had later been told that their son had broken away in the presence of the three police officers.

15. Mr Dejan Petrović remained in a comatose state while in hospital, except between 26 and 28 January 2002, when he showed some signs of consciousness and movement.

16. According to the medical certificate issued by the Serbian Clinical Centre, Mr Dejan Petrović died from sepsis and cardiac arrest on 15 February 2002 at 4.30 a.m. Following a request by the investigating judge (M.P.) of the Belgrade District Court, the post-mortem examination of Mr Dejan Petrović’s body was carried out on 18 February 2002 at 9 a.m. by two doctors, Sl.K. and V.D.J., of the Institute for Forensic Medicine of the Faculty of Medicine in Belgrade. The autopsy report stated that Mr Dejan Petrović’s death had been violent and caused by damage to his brain (vitalne centre) and complications thereafter. It further concluded that the damage to his brain, as well as the rib and femur fractures and other external and internal bodily injuries described in the report, had been “inflicted with a blunt, heavy and swinging object (naneti tupim, teškim i zamahnutim predmetom)”. No photographs or results of any toxicological analysis have been submitted to the Court.

B. The inspection of the scene of the incident on 17 January 2002

17. Following a telephone call from the Belgrade criminal police department for investigative and operational affairs (Odelenje za uviđajno-operativne poslove Uprave kriminalističke policije (UKP) - SUP Beograd; hereinafter “the DIOA”), the investigating judge on duty, V.M., from an unspecified court, arrived at the Vračar Police Department at an unspecified time to inspect the scene of the incident. D.Z., from the DIOA, and a crime-scene technician, M.K., from the Belgrade criminal police forensics unit (Odeljenje kriminalističke tehnike UKP-a) were also present.

18. According to the investigating judge’s one-and-a-half-page report of his inspection of the scene of the incident (zapisnik o uviđaju), upon his arrival at the Vračar Police Department, unspecified police officers had shown him office no. 24 and a broken window pane in the left corner of the window, closest to the floor. As it was a double, wooden multi-paned window, and as he had been informed that Mr Dejan Petrović had jumped out through the window pane by breaking the glass, he had examined the pane in question. As he had seen no blood stains, hair or any other trace of this nature, he had asked the two above-mentioned investigators whether they had seen any traces, in order to inspect them, but they had both responded in the negative. He had ordered the crime-scene technician to draw a sketch of the scene and to photograph it, as well as to measure the size of the window.

The investigating judge had noted the broken window pane, as well as pieces of glass between the two window frames and on the floor below the inside window. In the snow-covered courtyard of the police building, into which the suspect Mr Dejan Petrović had allegedly fallen, he had “noticed footprints and trodden snow of an indeterminate shape below the window”, but had not found “any blood stains or other physical traces”.

19. The sketch of the scene of the incident, thirteen photographs of the office and three of the courtyard were an integral part of the investigating judge’s report. The copies of the photographs submitted to the Court show an armchair under the broken window with a cabinet to its right and a hat stand to its left. In the report on the forensic inspection of the scene of the incident (izveštaj o kriminalističko-tehničkom pregledu lica mesta), the crime-scene technician noted the following: (a) as regards biological traces, the investigating judge had not requested that fingerprints be lifted and collected; (b) as regards the other evidence and objects found, broken glass had been noticed in the pane of the lower left part of the interior and exterior window frames. The window pane’s frames measured 50 x 55 and 45 x 50 centimeters respectively and stood one metre from the office floor. Both window frames had been found closed. Pieces of broken glass had been found between the interior and exterior window frames and on the windowsill. The outside window stood nine metres above the ground. The trodden snow and pieces of glass had been found 1.5 metres away from the building’s wall. Other traces had not been found.

20. According to a separate report on the questioning of the three police officers drawn up by D.Z. from the DIOA, they had provided concurring statements to the same effect as those detailed in the incident report (see paragraph 11 above). The police officers also stated that Mr Dejan Petrović had, as usual, been very well-behaved that morning and had confessed to committing the robbery.

C. Internal disciplinary proceedings

21. A report was drawn up, apparently in the framework of a fact-finding visit conducted on 17 January 2002, at an unspecified time, by Major D.T. and Captain Ð.D. of the Belgrade Police Internal Control Department (Odeljenje za kontrolu zakonitosti u radu SUP-a Beograd). The report restated the events as outlined by the previous reports (see paragraphs 11 and 20 above). It was further noted that Mr Dejan Petrović’s parents had mentioned that he had been taking antidepressants as part of his therapy for drug addiction in order to prevent any possible self-injury. Regarding the police officers’ accountability, the inspectors considered that the police officers in charge had undertaken preventive, but apparently insufficient, measures for the protection of Mr Dejan Petrović. For that reason, disciplinary action against S.K. and D.K. and a verbal reprimand to N.K. by her superior were recommended. The inspectors also recommended that the police ensure appropriate conditions, for example, window security bars, on premises where apprehended individuals were questioned.

22. In the framework of a preliminary disciplinary inquiry (prethodni disciplinski postupak) that evening, the three police officers were questioned again, one by one, by their superior, Major M.M. The three officers repeated their earlier statements.

23. On 7 March 2002 S.K. and D.K. were prosecuted in disciplinary proceedings for gross misconduct, namely, omitting to take adequate measures for the protection of Mr Dejan Petrović’s safety while in custody. The disciplinary body heard the officers as the suspects, as well as N.K. as a witness, all of whom reiterated their earlier recollection of the incident. The police officers were acquitted at two levels, the last decision being rendered on 10 May 2002. It was found that in the circumstances of the case they could not have done more than they had done to protect Mr Dejan Petrović and prevent his suicide.

D. Investigative measures taken following the submission of the applicant’s criminal complaints

24. On 28 January 2002 the applicant’s husband lodged a criminal complaint against police officer D.K. on behalf of the Petrović family, on the ground that there was a reasonable suspicion that he had forcibly extracted a statement from Mr Dejan Petrović. In the complaint it was claimed that the police officers had used force in order to extract a statement and had severely ill-treated Mr Dejan Petrović to such an extent that it had driven him to jump out of the office window. The family also alleged that the police officers had failed to disclose Mr Dejan Petrović’s identity and all the circumstances of the incident to the emergency medical team.

25. In the meantime, on 24 January 2002, the Belgrade police sent the District Public Prosecutor’s Office in Belgrade (hereinafter “the DPPO”) the two reports of 17 January 2002 (see paragraphs 21-22 above). On 14 May 2002 and 12 June 2002, respectively, the DPPO also received the autopsy report and the report on the forensic inspection of the scene of the incident (see paragraphs 16 and 18-19 above).

26. On 11 October 2002 the DPPO requested information from the Belgrade Police Internal Control Department on the outcome of the disciplinary proceedings against the police officers who had been present during the incident. The DPPO also supplied that department with its own case file to enable them to establish the facts of the case more easily. The requested documentation from the disciplinary proceedings was received by the DPPO on 14 November 2002.

27. On an unspecified date, the applicant’s husband extended the criminal complaint to include two other police officers who had been involved in the incident.

28. On 9 January 2003 the DPPO requested a commission of forensic experts from the Institute for Forensic Medicine of the Belgrade Faculty of Medicine to give their opinion on what other causes, apart from a fall from the window, could explain Mr Dejan Petrović’s injuries. On 1 August 2003 the Institute for Forensic Medicine requested the case file and the DPPO sent it to them a month later. On 18 September 2003 the DPPO requested an investigating judge of the District Court to issue an order for a forensic opinion, as the Institute could apparently not proceed on the basis of the DPPO’s order alone. The investigating judge did so on 8 October 2003.

29. Almost a year later, in an expert opinion dated 13 September 2004, the experts stated, on the basis of the autopsy report and other medical records, that a person of Mr Dejan Petrović’s height and build could have “squeezed through” the window in question. They further maintained that Mr Dejan Petrović’s fatal injuries could have been caused by his jump from the window and his falling on a hard surface. Finally, they concluded that no other injuries, lacerations, scratches or bruises of a nature or location which would indicate that they had any cause other than the one mentioned above had been recorded in the autopsy report or in the hospital’s files.

30. On 1 November 2004 the DPPO rejected the criminal complaint on the ground that there was no reasonable suspicion that the suspects had committed the alleged crime. The applicant’s husband was notified accordingly and informed that he could pursue a subsidiary criminal prosecution (preuzeti krivično gonjenje) within eight days of the date that decision had been served on him by filing a request for an investigation (zahtev za sprovođenje istrage).

31. On 16 February 2005 the Petrović’s family lodged with the DPPO a new and more detailed criminal complaint against the police officers (P.N., N.K., D.K. and S.K.) for causing severe bodily harm (teške telesne povrede), extracting a statement by coercion (iznuđivanje iskaza) and ill-treatment in the discharge of their official duties (zlostava u službi). In the complaint they expressed their doubt that Mr Dejan Petrović had jumped out of the office window of his own volition and their suspicion that the suspects had thrown their son’s corpse out of the window in order to conceal previous ill-treatment. The complaint pointed out certain alleged contradictions and shortcomings in the previous investigative measures and reports, and proposed numerous investigative activities to be carried out in order to investigate the circumstances of Mr Dejan Petrović’s death adequately.

32. On 22 March 2005 the DPPO in Belgrade rejected that criminal complaint for the same reasons relied on in its decision of November 2004, and repeated the information it had provided about the possibility of a subsidiary prosecution. That letter was served on the applicant on 8 April 2005.

E. The applicant’s pursuit of a subsidiary prosecution

33. Following the rejection of the first criminal complaint (see paragraph 30 above), on 17 November 2004 the applicant attempted to take over the prosecution as a subsidiary prosecutor by filing a request for an investigation with the District Court in Belgrade and subsequently, on 11 April 2005, a request to broaden the scope of the investigation (zahtev za proširenje istrage). She relied on and reaffirmed the assertions and requests she had made in her second criminal complaint (see paragraph 31 above).

34. In response to a request of 22 March 2005 by the District Court’s investigating judge, B.P., as well as a reminder sent on October 2005, on 15 January 2006 two forensic pathologists, Dr Z.S. and Dr N.M., from the Military Medical Academy in Belgrade provided an expert opinion. Relying on the previous medical and autopsy reports, they found that the location, distribution and types of injuries observed on Mr Dejan Petrović indicated that they were severe and life-endangering, and that they could undoubtedly have been the result of a fall from the second floor, but only through an open window. In particular, they found that taking into account the circumstances of the incident, including Mr Dejan Petrović’s build, his winter clothes and his handcuffs, the size of the window pane in question and the position of the furniture and the window in the office, it would have been practically impossible for him to have broken through the window and jumped out. Otherwise, it would mean that he had been able to “fly horizontally” over the armchair and break the window with his head exactly in its centre.

35. On 18 April 2006 the investigating judge held a hearing and interviewed the suspects. They repeated their earlier statements. S.K. added that Mr Dejan Petrović had jumped from the floor one metre away from the window and gone through it without touching the armchair, which was under the window; none of the furniture had fallen over or been moved.

36. On 8 May 2006 the investigating judge refused to open the investigation sought by the applicant (izrazio neslaganje sa zahtevom), and referred the case to a three-judge criminal panel (see paragraph 49 below).

37. On 17 July 2006 the three-judge panel of the District Court upheld the investigating judge’s findings, relying on the case file, namely, the “concordant statements of the suspects” and the findings and opinions of the forensic experts in 2004 and 2006, “which [were] consistent and indicate[d] that all the injuries of the deceased could have been caused at the same time by his fall from a height of nine metres onto a hard surface”. The applicant was instructed that she could appeal against that decision within three days from the date on which the decision was served on her and she did so on 2 November 2006, reiterating her previous arguments.

38. On 30 November 2006 the Supreme Court of Serbia rejected the applicant’s appeal as unfounded. In reaching that decision, by reference to the expert commission’s forensic findings of 2004, it upheld the lower court’s reasoning as clear, conclusive and convincing. That decision was served on the applicant on 20 February 2007.

39. On 7 March 2007 the applicant applied to the Chief Public Prosecutor’s Office (inicijativa za podizanje zahteva za zaštitu zakonitosti), urging him to lodge a request with the Supreme Court for the protection of legality (zahtev za zaštitu zakonitosti) against the decision of 30 November 2006 on her behalf.

40. On 27 August 2007 the Chief Public Prosecutor informed the applicant that on that same day he had accepted her motion and had lodged a request for the protection of legality against the decision of 30 November 2006, submitting, in particular, that: (a) the court had based its finding on evidence that had been challenged by the applicant and, which, according to him, had been flawed by inconsistencies; (b) the court had dismissed the applicant’s appeals without addressing her arguments; and (c) the collection and examination of evidence had been superficial, which had resulted in the incorrect and implausible conclusion reached by the court.

41. On 8 February 2008 the Supreme Court of Serbia, sitting in a different composition from that of 30 November 2006, rejected the Prosecutor’s request. Having regard to the case file and a hearing in the presence of the three suspects and their lawyer, the court stated the following: (a) the forensic experts had not ruled out that the victim might have sustained the injuries while breaking the window and falling on a hard surface; (b) no evidence had shown that the suspects had caused the victim any bodily harm by any other means; (c) according to the relevant evidence, there was no reasonable suspicion that the suspects had committed the alleged crimes which would warrant the opening of criminal proceedings; and, lastly, (d) the impugned decision did not ultimately preclude the opening of criminal proceedings if the victim, as a subsidiary prosecutor, submitted new evidence which had not existed or had been unknown at the time of her previous request for an investigation. This decision was served on the applicant on 30 May 2008.

F. Civil proceedings against the State

42. In December 2002 the applicant and her husband brought a joint civil action against the respondent State and the Ministry of the Interior to obtain redress for the mental anguish suffered as a consequence of Mr Dejan Petrović’s death. They relied on the Obligations Act and various international human rights instruments. The defendant contested the claim in general, but did not make any further clarification in that respect.

43. In its judgment of 4 June 2007, the First Belgrade Municipal Court clarified that although it could not ascertain a reliable course of the events in question or anyone’s clear fault, this was not its task in any event. Referring to the 2006 forensic experts’ report and Article 172 of the Obligations Act (see paragraphs 34 above and 51 below, respectively), the court concluded that the respondent State should compensate the plaintiffs on the basis of the State’s liability for its officials’ omissions, which had undoubtedly occurred given that Mr Dejan Petrović had sustained injuries and died while in police custody under the supervision of State officials. Pursuant to Articles 200 and 201 of the Obligations Act, it awarded each plaintiff RSD 1,000,000 for non-pecuniary damage, and made an award in respect of costs.

44. That judgment was upheld on the merits by the District Court and the Supreme Cassation Court on 23 February 2009 and 24 June 2010 respectively. The sums awarded were paid on 7 December 2010.

II. RELEVANT INTERNATIONAL LAW

Recommendation Rec(2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system (adopted on 6 October 2000 at the 724^th meeting of the Ministers’ Deputies)

45. The relevant part of Recommendation Rec(2000)19 reads as follows:

“33. Public prosecutors should take proper account of the views and concerns of victims when their personal interests are affected and take or promote actions to ensure that victims are informed of both their rights and developments in the procedure.

34. Interested parties of recognised or identifiable status, in particular victims, should be able to challenge decisions of public prosecutors not to prosecute; such a challenge may be made, where appropriate after an hierarchical review, either by way of judicial review, or by authorising parties to engage private prosecution.”

III. RELEVANT DOMESTIC LAW

A. Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - no. 70/2001; amendments published in OG FRY no. 68/2002 as well as the Official Gazette of the Republic of Serbia - OG RS - nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09 and 72/09)

46. The relevant domestic provisions are contained in Articles 19, 20, 46, 61, 64, 235, 242, 243, 379, 406 and 425 of the Code.

47. In accordance with these provisions, formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of crimes subject to public prosecution, including the crimes mentioned above in paragraph 31, the authorised prosecutor is the public prosecutor in person. The public prosecutor’s discretion to decide whether to press charges, however, is bound by the principle of legality, which requires that he must act whenever there is a reasonable suspicion that a crime subject to public prosecution has been committed. The public prosecutor must undertake measures necessary for the preliminary investigation of crimes subject to public prosecution and the identification of the alleged perpetrators. To that end he is vested with the power to co-ordinate the work of various law-enforcement agencies and other government bodies.

48. If the public prosecutor finds, based on the evidence before him, that there is a reasonable suspicion that a certain person has committed a crime subject to public prosecution, he will request the competent court to open an official investigation or file a bill of indictment. If, however, the public prosecutor decides that there is no basis for the institution of such proceedings, he must issue a reasoned decision, and also inform the victim of this decision; the victim then has the right to take over the prosecution of the case on his or her own behalf, in the capacity of “subsidiary prosecutor”, within eight days from the notification of the public prosecutor’s decision.

49. A subsidiary prosecutor may submit a request for the opening of the investigation or file an indictment. If an investigating judge refuses to open the investigation sought, the case will be referred to a three-judge criminal panel to issue a decision in that respect within forty-eight hours. A further appeal is allowed. If the prosecution has already been taken over by a subsidiary prosecutor, the public prosecutor shall nevertheless have the power to resume the prosecution of the matter ex officio.

50. As regards a request for the protection of legality, a party to the proceedings has no right under the law to make use of this remedy personally, but is entitled to submit a motion to the competent public prosecutor to file it on his or her behalf, while the latter has full discretion in respect of whether to do so. If the Supreme Court accepts the motion, it has the power to find a breach of legality, to reverse the final decision or to quash it fully or partially and to refer the case for reconsideration.

B. The Obligations Act (Zakon o obligacionim odnosima; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85, 45/89 and 57/89, as well as in OG FRY no. 31/93)

51. Article 172 § 1 provides that a legal entity, which includes the State, is liable for any damage caused by one of “its organs”.

52. Articles 200 and 201 provide, inter alia, that anyone who has suffered fear, physical pain or, indeed, mental anguish as a consequence of, inter alia, the death of his or her next-of-kin, is entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress which might be capable of affording adequate non-pecuniary satisfaction.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

53. Тhe applicant complained that the Serbian authorities had not discharged their obligations under the procedural limb of Article 2 of the Convention, which required them to conduct an adequate and effective investigation into the circumstances surrounding her son’s death, with the alleged intention of concealing police abuse. Article 2 provides as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

A. Admissibility

1. The Government’s preliminary objections

(a) Six-month rule

54. The Government argued that the decision of the Supreme Court of 30 November 2006 was the final decision for the purposes of Article 35 § 1 of the Convention, since a request for the protection of legality is, according to the Court’s case-law, an ineffective legal remedy. The applicant had lodged her application on 1 August 2008 and had therefore not complied with the six-month requirement set out in Article 35 § 1.

55. The applicant replied that in considering the question of compliance with the six-month rule account had to be taken of her attempt to use every available remedy in respect of her complaints. She maintained that the prosecutor’s request for the review of the decision of 30 November 2006 had raised her expectation that the authorities might, upon his request, ultimately carry out an effective investigation. Therefore, the final decision within the meaning of Article 35 § 1 had not been that of 30 November 2006. Instead, it was only on 8 February 2008 that it had become apparent that these processes no longer offered any realistic prospects of obtaining redress domestically.

56. Article 35 § 1 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

57. The relevant question in the present case is whether the applicant’s unsuccessful attempts to take over the prosecution as a subsidiary prosecutor and to request the prosecutor to lodge a “request for the protection of legality” amounted to her pursuing unnecessary remedies, which would render her application out of time (see, for example, Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002). The Court considers that they did not, for the following reasons.

58. The Court has already held that while victims are not required to pursue the prosecution on their own, this being the duty of the public prosecutor, who is better equipped in that respect, if an applicant nonetheless takes over the prosecution in the capacity of a subsidiary prosecutor, those proceedings become an inherent part of the case and must be taken into account, including for exhaustion and six-month purposes (see, in the context of Article 2, Mladenović v. Serbia, no. 1099/08, §§ 39 and 47, 22 May 2012; see, albeit in the context of Article 3, Otašević v. Serbia, no. 32198/07, § 25, 5 February 2013 with further references therein).

59. Turning to the present case, the Court notes that the applicant diligently pursued this avenue of redress and, likewise, she then made a rational decision not to file any further indictment in view of her previous unsuccessful request for an investigation (see paragraphs 38 and 49 above), which required a much lower standard of proof (contrast to Gasyak and Others v. Turkey, no. 27872/03, § 58, 13 October 2009). Instead, the applicant successfully applied to the Chief Public Prosecutor’s Office urging him to lodge the request for the protection of legality (see paragraphs 39 and 50 above). She finally lodged her application to the Court after she had received the Supreme Court’s negative decision of 8 February 2008 concerning the Prosecutor’s request for the protection of legality. In this latter connection, the Court notes that the request for the protection of legality was admittedly of a discretionary character, and normally such a remedy is not considered to be effective (see Lepojić v. Serbia, no. 13909/05, § 54, 6 November 2007) and could not restart the running of the six-month limit (see, for example, Kucherenko v. Ukraine (dec.), no. 41974/98, 4 May 1999). Nevertheless, situations in which a request to reopen the proceedings actually results in a reopening, or in which a request for extraordinary review is successful, may be an exception to this rule (see Gasparyan v. Armenia (no. 1), no. 35944/03, § 30, 13 January 2009 with further references), though only in relation to those Convention issues which served as a ground for such a review or reopening and were the object of examination before the extraordinary appeal body (see Gasparyan, cited above, § 32, and Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II (extracts)).

60. The Court considers that the situation in the present case falls into the category of exceptional cases. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to lodge his complaint with the Court before his position in connection with the matter has been finally settled at the domestic level (see Mladenović, cited above, § 44). The applicant’s complaint to the prosecutor, raising the substance of her complaint before this Court, was in fact successful: indeed, the Chief Public Prosecutor, as the most senior prosecutor, criticised in particularly strong terms the previous decisions of the domestic judicial bodies as wrong and arbitrary (see paragraph 40 above). It was thus perfectly reasonable for the applicant to await the Supreme Court’s decision on the prosecutor’s request for the protection of legality, particularly in view of the Supreme Court’s powers had that request been accepted (see paragraph 50 above). In that respect, it cannot be said that the applicant deliberately tried to defer the time-limit set in Article 35 § 1 by making use of inappropriate procedures which could offer her no effective redress for the complaint in issue under the Convention (compare and contrast Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006).

61. For the reasons mentioned in the above paragraph, the Court considers that the decision of the Supreme Court of 8 February 2008 was the final decision for the purposes of Article 35 § 1 of the Convention in the present case. The Court therefore finds that by lodging her application within two months of 30 May 2008, which was the date of service of the final decision issued in the domestic proceedings (see paragraph 41 above), the applicant complied with the six-month time-limit provided in Article 35 § 1 of the Convention.

(b) Victim status

62. Referring to Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000-I, the Government further submitted that the applicant could no longer claim to be the victim of any violation of the rights relied on in respect of the death of her son, since the civil courts had “acknowledged [that] the State [had] made an omission in respect of the circumstances causing the death of the applicant’s son” and had, in that connection, awarded compensation almost equivalent to the settled amount in a case which had been struck out (see Petković v. Serbia (dec.), no. 31169/08, 6 December 2011). In addition, the State’s response was not limited merely to compensation, given that the authorities had brought disciplinary and criminal proceedings against the police officers. The fact that no case to take forward was established cannot be equated to the Court’s conclusion that no investigation was carried out at all.

63. The applicant submitted that the civil proceedings could not satisfy the State’s procedural obligation under Article 2 and therefore could not have deprived the applicant of her victim status.

64. A decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 49, 20 December 2007 and the cases cited therein). As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, with particular regard to the nature of the right alleged to have been breached (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010), the reasons given for the decision (see Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X) and the persistence of the unfavourable consequences for the person concerned after that decision (see Freimanis and Līdums v. Latvia, nos. 73443/01 and 74860/01, § 68, 9 February 2006).

65. In view of the foregoing, the Court considers that the question of the applicant’s victim status is closely linked to the nature and the content of the obligation at issue in the present case and should be joined to the merits of the complaint under Article 2.

2. Compatibility ratione temporis

66. The Court observes that Serbia ratified the Convention on 3 March 2004 and that some of the events in the present case took place before that date. In the Court’s view, although the Government have not raised an objection as to its competence ratione temporis, this issue nevertheless calls for its consideration proprio motu (see, mutatis mutandis, Jovanović v. Serbia, no. 32299/08, §§ 34-35, 2 October 2012).

67. The principles established by the Court in its case-law are the following:

(a) The State’s procedural obligation to carry out an effective investigation has evolved into a separate and autonomous duty, capable of binding a State regardless of whether the death, as a triggering event, took place before or after the entry into force of the Convention with respect to that State (see Šilih v. Slovenia [GC], no. 71463/01, §§ 159 and 162, 9 April 2009, and Velcea and Mazăre v. Romania, no. 64301/01, § 81, 1 December 2009).

(b) However, having regard to the principle of legal certainty, the Court’s temporal jurisdiction as regards compliance with the procedural obligation of Article 2 in respect of deaths that occur before the critical date is not open-ended.

(i) Firstly, only procedural acts and/or omissions occurring after that date can fall within the Court’s temporal jurisdiction. The reference to “procedural acts” must be understood in the sense inherent in the procedural obligation under Article 2, namely, acts undertaken in the framework of criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party. The mention of “omissions” refers to a situation where no investigation or only insignificant procedural steps have been carried out but where it is alleged that an effective investigation ought to have taken place (see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 142-44, ECHR 2013).

(ii) Further, there must be a “genuine connection” between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligation imposed by Article 2 of the Convention to come into effect. In order for a “genuine connection” to be established, it means, in practice, that the period of time between the death as the triggering event and the entry into force of the Convention in respect of that State must have been reasonably short (in principle, not exceeding ten years) and most of the investigative steps required by this provision must have been carried out, or ought to have been carried out, after the entry into force (see Janowiec, cited above, §§ 146-48).

(c) Lastly, even where the “genuine connection” test is not satisfied, the Court can, in extraordinary situations, exercise its jurisdiction (for more details, see Janowiec, §§ 149-51).

68. In the present case, while the death and most of the preliminary investigative measures took place two years before 3 March 2004, there have been almost four years of procedural acts as of this critical date, including further important investigative measures and the issuing of all the relevant decisions by the investigating authorities. The applicant’s complaint under the procedural aspect of Article 2 mainly concerns these latter matters. In line with the jurisprudence set out above, the Court considers that a procedural obligation arose in the present case requiring the authorities of the respondent State to investigate Mr Dejan Petrović’s death.

69. The Court further finds that it has temporal jurisdiction to examine the applicant’s complaint in so far as it concerns procedural acts or omissions occurring in the period subsequent to the ratification date. It will nevertheless, for reasons of context and whilst examining the situation complained of as a whole, also take into account any and all relevant events prior to that date (see, in the context of Article 2, Mladenović, cited above, § 53, and, in the context of Article 3, Milanović v. Serbia, no. 44614/07, § 78, 14 December 2010).

3. Conclusion on admissibility

70. The Court considers that the applicant’s complaint under Article 2 of the Convention raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

71. The applicant complained that the authorities had acted neither of their own motion nor effectively. In particular: (a) the fact that it had taken four years for the authorities to undertake only preliminary investigative activities could not satisfy the criteria of promptness or reasonable expedition of the investigation; (b) the investigation had been based entirely on the testimony of police officers and autopsies; (c) the decisions not to investigate further had not been sufficiently reasoned, in contravention of the requirements of the relevant domestic law; (d) the Supreme Court, instead of examining carefully any deficiency, had simply repeated the same reasoning without establishing the relevant facts of the case; (e) the real facts of the case had never actually been established; and (f) the applicant’s procedural right to be properly involved in the investigation had not been observed.

72. The Government, recounting in detail the facts described above, argued that the various national authorities had done everything they could in the present case and had consistently established the cause of Mr Dejan Petrović’s death. An independent prosecutor had carried out the investigation, and the police officers involved in the investigation had been hierarchically independent and/or superior to the police officers present during the incident. The Government submitted that the investigation into the death of the applicant’s son had consequently fully met the requirements of impartiality and thoroughness laid down in Article 2 of the Convention.

2. The Court’s assessment

(a) General principles

73. The Court reiterates that the investigative duty, which has been implied in varying contexts under the Convention, may differ, both in content and in terms of its underlying rationale, depending on the particular situation that has triggered it (see, for example, Banks and Others v. the United Kingdom (dec.), no. 21387/05, 6 February 2007). While an official investigation and/or a criminal trial must be regarded as furnishing the strongest safeguards to provide protection under Article 2 in cases of intentional taking of life (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 165, ECHR 2011; McKerr v. the United Kingdom, no. 28883/95, § 134, ECHR 2001-III; and Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V), where the allegations raise issues of negligence, the procedural obligation may come into play upon the institution of proceedings by the deceased’s relatives and a civil, administrative or even disciplinary remedy may be sufficient (see Šilih, cited above, § 156 and the cases referred to therein; Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002-I; and Powell v. United Kingdom (dec.), no. 45305/99, 4 May 2000). Since often, in practice, the true circumstances of the death in such cases are largely confined within the knowledge of State officials or authorities, the bringing of appropriate domestic proceedings will be conditioned by an adequate official investigation, which must be independent and impartial (see Makaratzis v. Greece [GC], no. 50385/99, § 73, ECHR 2004-XI).

74. In cases in which a detainee dies while in the custody of State authorities, whatever mode of investigation is employed, the mere fact that the authorities have been informed of the death will give rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death, irrespective of whether the alleged perpetrators are State agents, or are unknown, or even that the harm was self-inflicted (see, for example, Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101 and 103, ECHR 1999-IV; Salman v. Turkey [GC], no 21986/93, § 105, ECHR 2000-VII; Tanlı v. Turkey, no. 26129/95, § 149, ECHR 2001-III (extracts); Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69 and 74, ECHR 2002-II; and Slimani v. France, no. 57671/00, § 30, ECHR 2004-IX). Nor can State authorities leave it to the initiative of the next-of-kin to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see Salman, ibid.).

75. In order to be “effective”, an investigation into a death must firstly be adequate, that is, it must be capable of the establishment of the relevant facts and the identification and punishment of those responsible (see Ramsahai and Others v. the Netherlands [GC], § 324, no. 52391/99, ECHR 2007-II). Although this is not an obligation of result, but of means only, the investigation into a detainee’s death must be thorough and the authorities must take the reasonable steps available to them to secure the evidence concerning the incident (see, for example, concerning witnesses’ testimonies, Tanrıkulu, cited above, § 109; concerning forensic evidence, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000; and concerning autopsies, Salman, cited above, § 106). Also, while there is no absolute right to obtain a prosecution or a conviction, any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible will risk falling foul of the required measure of effectiveness (see, for example, Anguelova v. Bulgaria, no. 38361/97, §§ 136-39, ECHR 2002-IV).

76. Furthermore, for an investigation to be effective, it may generally be regarded as necessary for the persons responsible for it and carrying it out to be independent from those implicated in the events (see, for example, Ramsahai, cited above, §§ 321 and 342-45; Cooper v. the United Kingdom [GC], §§ 108-15, no. 48843/99, ECHR 2003-XII; and Eremiášová and Pechová v. the Czech Republic, no. 23944/04, §§ 136-39 and 151-60, 16 February 2012).

77. It is essential that the facts, and any unlawfulness, are established promptly and with reasonable diligence. The investigation’s purpose in such situations serves not only to secure the effective implementation of the domestic laws which protect the right to life, but to maintain public confidence in the authorities’ adherence to the rule of law, to prevent any appearance of collusion in or tolerance of unlawful acts and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Tanrikulu, ibid.). For the same reasons, there must be a sufficient element of public scrutiny of the investigation, and, in all cases, involvement of the next-of-kin to the extent necessary to safeguard his or her legitimate interests (see, for example, Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 109 and 124, ECHR 2001-III (extracts), and Khaindrava and Dzamashvili v. Georgia, no. 18183/05, §§ 59-61, 8 June 2010).

(b) Application of the general principles to the present case

78. The present case concerns an individual who was in police custody under the responsibility of the authorities when he reportedly fell from a window in the police station, causing him to die a month later in hospital. This is therefore a case which called for the State authorities to carry out, of their own motion, an effective official investigation to ascertain the circumstances in which the incident took place in order to clearly establish the cause of the fall and subsequent death, and, depending on the findings, to examine whether the authorities were in any way responsible for it. The investigation had to fulfill the requirements set out above.

79. The Court notes that the Government maintained that the three sets of domestic proceedings had cumulatively satisfied the requirements of the procedural obligation under Article 2 and that the applicant could not retain victim status in view of their outcome.

(i) Civil proceedings

80. The Court would make it clear from the outset that civil proceedings with an award of damages cannot be alone taken into account in the assessment of the State’s compliance with its procedural obligations under Article 2 of the Convention and cannot afford effective redress to deprive applicants of victim status in a death in custody context (see, among many authorities, Paul and Audrey Edwards, cited above, § 74; see also, albeit in another context of Article 2, Skendžić and Krznarić v. Croatia, no. 16212/08, § 68, 20 January 2011, where the compensation was even, as in the present case, accompanied by an acknowledgment of the State’s responsibility). This is so because, if the authorities could confine their reaction to incidents of allegedly willful ill-treatment, for example, by agents of the State and leading to death, to the mere payment of compensation, while not doing enough in the prosecution and punishment of those responsible when appropriate, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity and the general legal prohibitions on killing and torture and inhuman and degrading treatment, despite their fundamental importance, would be ineffective in practice (see, for example, Yaşa v. Turkey, § 74, 2 September 1998, Reports of Judgments and Decisions 1998-VI; Velikova, cited above, § 89; and Salman, cited above, § 83).

81. As regards the present case, in the absence of sufficient reasons to the contrary, the Court will not depart from its established case-law. Not only were the relevant civil proceedings undertaken on the initiative of the applicant, but this remedy was not capable, as explicitly stated by the competent civil court (see paragraph 43 above), of establishing the accurate facts of the incident or making any findings as to the exact responsibility of the State officials implicated in the incident, as required by Article 2. The findings were based on what appears to be the strict liability of the State and did not address the applicant’s procedural complaint made before the Court. In this connection, the Court considers that the Government’s reliance on the Caraher case (cited above) is inappropriate, as the applicants in that case did not raise a complaint about a breach of investigative duty, but a substantive violation. As regards the Government’s reference to the case of Petković (cited above), which indeed concerned, inter alia, an alleged breach of investigative duty under Articles 2 and 3 of the Convention, the Court points out that the Government undertook, in the context of an out-of-court settlement, not only to pay damages, but also to conduct an efficient and meaningful investigation into the circumstances of the death in question.

(ii) Disciplinary proceedings

82. Furthermore, the internal disciplinary proceedings (see paragraphs 21-3 above) against the two police officers, which commenced with the questioning by their superior and finished before the criminal proceedings had been terminated, were obviously not a real fact-finding forum capable of establishing the relevant circumstances of the impugned incident. Without the necessary safeguards of public scrutiny and the applicant’s involvement, the disciplinary chamber relied exclusively on the information provided by the three police officers to the effect that the impugned incident was a prima facie suicide without any negligence on the part of the police. Therefore, these proceedings also failed to comply with the procedural obligations under Article 2 of the Convention, having lacked both thoroughness and objectivity (see, mutatis mutandis, Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III; Mižigárová v. Slovakia, no. 74832/01, §§ 98-100, 14 December 2010; and Juozaitienė and Bikulčius v. Lithuania, nos. 70659/01 and 74371/01, § 91, 24 April 2008).

(iii) Criminal investigation

83. The Court must accordingly examine the effectiveness of the criminal proceedings, which appear, at least in theory, to be the only adequate domestic remedy in these circumstances. Although they must be assessed on the basis of all the relevant facts and with regard to the practical realities of investigation work, it should be emphasised that the investigative duty attracts particularly stringent scrutiny in situations in which a suspicious death has occurred while the victim was in the hands of State agents, including in police custody (see, for example, Velikova, cited above, §§ 80 and 82).

(α) Investigative steps taken in the aftermath of the incident

84. The State authorities took a number of steps of their own motion to investigate the incident in the police station immediately after it had happened (see paragraphs 16-20 above). While these initial steps, dating back to two years prior to Serbia’s ratification of the Convention, do not fall under the Court’s jurisdiction, the Court will note, for reasons of context and whilst examining the situation complained of as a whole, the relevant facts.

85. The Court observes that the limited scope of the on-site forensic investigation affected the investigation after the Convention had entered into force. The following elements were unfortunately missing from the case file: (i) the alleged time of the incident and the time of the inspection; hence, it is not known whether there was any delay that might have compromised the effectiveness of the investigation; (ii) the lifting and collection of fingerprints, as well as other samples (body fluids, hair, fibre, etc.) by any special methods apart from “visual inspection”; (iii) an identification of the police officers who gave the investigating judge the police account of the incident; (iv) an inventory of Mr Dejan Petrović’s clothing and its testing at a laboratory for bodily fluids, or a record of any physical damage on it from the apparent “squeezing through” the window; (v) evidence that contacts and clothing of the police officers implicated in the incident were collected for forensic examination; (vi) a clarification as to why Mr Dejan Petrović had been taken to the police officers’ office and not to a questioning room, waiting room or custody suite; and (vii) evidence that an effort was made to obtain information from anyone present in the police station or from its neighbourhood, as to if, when, where and under what circumstances they had seen Mr Dejan Petrović or whether they had witnessed the incident. Further, it is noted that, unfortunately, none of the photographs taken were focused on the window pane or the actual place where Mr Dejan Petrović had fallen. In addition, the crime-scene technician and the police officers who questioned the police officers involved were from the same Belgrade police chain of command as the latter and none of their interviewing reports mentioned whether the police officers had been kept apart after the incident or whether there had been time for them to collude in terms of the said apparent inconsistency in the statements they had made to the applicant’s husband and the media (see paragraphs 14, 11 and 20-22 above, in that order; see also, mutatis mutandis, Jasinskis v. Latvia, no. 45744/08, § 78, 21 December 2010).

86. Lastly, the Court notes that the autopsy was performed by forensic doctors three days following Mr Dejan Petrović’s death, finding that the fractures and injuries described had been “inflicted with a blunt, heavy and swinging object” (see paragraph 16 above). However, it appeared to contain no toxicological analysis, no photographs and no analysis of the manner in which each injury had been sustained.

(β) Role of the public prosecutor

87. In accordance with the domestic law (see paragraph 47 above), it was the public prosecutor’s duty to ensure that an effective official investigation was carried out. The Court observes firstly that during the time it took the prosecutor to decide not to prosecute the suspects (two years and nine months, seven months of which followed the ratification of the Convention), he had not been overwhelmed by complex procedural steps in this case: apart from ordering a forensic expert’s report, he merely collected the documentary evidence accumulated in the course of Mr Dejan Petrović’s hospitalisation and the disciplinary proceedings (see paragraphs 25-26 and 28 above; see, as regards the requirement of diligence where a simple investigation lasted two years and five months, Vasîlca v. the Republic of Moldova, no. 69527/10, § 33, 11 February 2014). There is no record of the prosecutor’s having interviewed any police officer, forensic expert or Mr Dejan Petrović’s parents, or of any attempt to identify if there had been any witnesses outside the police building. The applicant’s proposals that other investigative activities be carried out were rejected (see paragraphs 30 and 32 above).

88. Article 2 does not impose a duty on the investigating authorities to prosecute in every case and to satisfy every request for a particular investigative measure made by a relative in the course of the investigation (see, for example, Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 304, ECHR 2011 (extracts), and Velcea and Mazăre, cited above, § 113). The Court observes, however, that in the present case, notwithstanding a number of features concerning the evidence which should have alerted the prosecutor to the need to investigate further beyond merely taking written statements, he failed to undertake even some of the most elementary steps. In particular, the 2004 experts’ report concluded that Mr Dejan Petrović could have “squeezed through” the window pane and that his fatal injuries could have been caused by his jump through the window and his falling onto a hard surface. This was a general conclusion as to the cause of the fatal injuries, since the experts did not go into details as to the manner in which each of the different injuries had been sustained. In any event, the Court is struck by the fact that no reconstruction of the incident was ever organised; neither did the Government attempt to explain the failure to stage one (see Ramsahai, cited above, §§ 326 and 329, and Eremiášová and Pechová, cited above, § 146).

89. In addition, despite the fact that the prosecutor had evidently proceeded throughout the investigation on the assumption that the deceased had committed suicide, the reasons why he would have made such a drastic choice were not investigated. Mr Dejan Petrović’s medical history, detailing, for example, instances of alcohol or substance use or suicide attempts, was not obtained (see Ognyanova and Choban v. Bulgaria, no. 46317/99, § 112, 23 February 2006). Also, it was apparently not considered necessary to make a visit to the hospital during Mr Dejan Petrović’s hospitalisation to obtain his complete medical records or interview the medical staff involved to inquire about Mr Dejan Petrović’s injuries or any signs of violence which may have occurred during his journey to the hospital, on admission or in the course of his further treatment there.

90. In view of the above, there are no indications that in ascertaining the facts of the incident the prosecutor was prepared to scrutinise thoroughly the police account of the incident (compare and contrast with Ramsahai, cited above, §§ 344-45, and Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV). Furthermore, the Court points out that, in accordance with the domestic law (see paragraph 48 above), the prosecutor is required to give reasons for a decision not to prosecute (contrast McKerr, cited above, § 130). Given the state of the case file, the Court cannot assess the prosecutor’s evaluation of the collected evidence and his conclusions that no further investigation was needed, as his reasoned decision (rešenje o odbačaju), if it had been made in writing at all, has neither been sent to the applicant nor submitted to the Court. Despite the Court’s request for them to do so, the Government have failed to clarify and document the DPPO’s role and practice in respect of that statutory requirement.

91. However, they argued that the DPPO’s one-sentence statement to the applicant in the present case had corresponded to a reasoned decision as required by the domestic law.

92. Having regard to the realities of investigation work, the Court may accept that a statement such as the one in the present case could be satisfactory in certain types of cases. However, where controversial incidents are concerned, and especially those which potentially engage the responsibility of the State, a reasoned decision setting out in writing the evidence, as well as the finding once the investigation has been completed, should be provided (compare and contrast Gurtekin and Others and two other applications v. Cyprus (dec.), nos. 60441/13, 68206/13 and 68667/13, § 29, 11 March 2014). Otherwise, a lack of transparency might not ensure public confidence in the State’s adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts (see, mutatis mutandis, Hugh Jordan, cited above, §§ 123-24, and McKerr, cited above, § 131).

(γ) Subsidiary prosecution

93. The Court reiterates that the Convention does not compel the Contracting States to set up a mechanism for the review of prosecutors’ decisions to investigate, nor is it the Court’s role to micro-manage the functioning of, and procedures applied in, criminal investigative and justice systems in Contracting States, which may vary in their approach and policies (see Gurtekin and Others, cited above, § 28 with further references therein). However, where such a mechanism is chosen by the State (see paragraph 34 of Recommendation Rec(2000)19 in paragraph 45 above), the Court will, as stated earlier, take it into account and examine whether the review in question could have rectified the shortcomings in the prosecutor’s investigation and met certain requirements under the procedural limb of Article 2 (see, for example, Mladenović, cited above, § 53, and Ramsahai, cited above, §§ 351- 55).

94. The domestic courts in the present case refused the applicant’s requests to take numerous investigative steps and upheld the prosecutor’s decision not to prosecute, despite the strong criticism voiced by the Chief Public Prosecutor. The Court does not in general consider it appropriate to interfere with the lines of inquiry pursued by the authorities or the findings of fact made by them, unless they manifestly fail to take into account relevant elements or are arbitrary and biased (see, mutatis mutandis, Drăganschi v. Romania (dec.), no. 40890/04, 18 May 2010, and Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009).

95. Given the fundamental importance of the right to life, the State authorities must be sensitive to any information or material which has the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further. The Court observes that, after the prosecutor had closed the case, the new expert report of 2006 certainly shed new light on the official version of Mr Dejan Petrović’s fall, as its findings challenged those of the 2004 report. Namely, the 2004 report stated that Mr Dejan Petrović could have “squeezed through” the window and concluded that his injuries had been caused only by jumping out of the window and falling onto a hard surface, without providing any clarification on the feasibility of its final conclusion (see paragraph 29 above). In any event, the later report issued in 2006 confirmed that the injuries could have been caused by a fall from the second floor, but highlighted that, having regard to all the circumstances of the case, it was practically impossible for Mr Dejan Petrović to have broken through the window and jumped out of the police premises on his own; he could only have fallen through an open window (see paragraph 34 above).

96. The Court considers that the unexplained failure to follow an obvious line of inquiry, and attempts even to obstruct the process, are to be accorded particular attention. Having regard to the three contradictory forensic reports (the autopsy report being the third), none of the judicial bodies tried to summon the forensic experts or seek clarification of the remaining forensic inconsistencies, despite the obvious crucial importance of obtaining an answer to the question of whether it was possible for Mr Dejan Petrović to have jumped out of the window. The District Court disregarded a significant inconsistency in the official version of the incident and the findings of both forensic reports by finding them consistent (see paragraph 37 above). The Supreme Court upheld this decision on appeal as clear, conclusive and convincing, selecting and referring only to the forensic findings of the 2004 report (see paragraph 38 above). Lastly, the Supreme Court, while deciding on the request for the protection of legality, appears to have accepted the police officers’ version of the events to such an extent that it was prepared to omit to take into account any relevant element which did not corroborate it, as well as the highest prosecutor’s criticism of the work of his inferiors (see paragraphs 40-41 above). The courts’ decisions were rather terse, unconvincing (in the words of the Chief Public Prosecutor, “wrong and arbitrary”), limited to certain pieces of evidence and reports which were apparently cited wrongly or selectively (contrast Fonseca Mendes v. Spain (dec.), no. 43991/02, 1 February 2005), and some of them were even taken after delays in breach of the domestic law (see paragraphs 36-37 and 49 above).

97. Having established that the investigation fell short of such essential requirements as those examined above, the Court does not find it necessary to examine its independence or the applicant’s involvement in it.

98. The Court concludes that the applicant has retained her victim status and dismisses the Government’s preliminary objection on this point. It holds that there has been a violation of Article 2 of the Convention in its procedural aspect.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

99. The applicant complained under Article 3 of the Convention that no adequate investigation had been conducted into the possible ill-treatment of her son. Article 3 of the Convention provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

100. Having considered the applicant’s complaints under Article 2 of the Convention (see paragraphs 53-98 above), the Court considers that it is not necessary to examine separately the admissibility or the merits of the applicant’s complaint under Article 3.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

101. 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

102. The applicant claimed EUR 30,000 in respect of non-pecuniary damage on account of the grief she suffered as a result of her son’s death and, especially, the anguish and distress caused by the authorities’ refusal to carry out an effective investigation into her son’s death while in their custody. This had resulted in excessive suffering because “her son’s life was not important to the authorities” and because she would never learn the exact circumstances of his death. She would also have to live with the long-lasting social stigma in Serbia of being the mother of a “suicidal” son.

103. The Government considered that the amount claimed was excessive in the light of the Court’s case-law on similar matters.

104. The Court does not make any award in respect of the grief the applicant suffered as a result of her son’s death, as it has previously declared the relevant complaint inadmissible ratione temporis (see Petrović v. Serbia (dec.), no. 40485/08, 4 January 2012).

105. The Court has found that the domestic authorities failed in several respects to comply with the procedural obligations arising out of Article 2 of the Convention. The applicant must have suffered anguish and distress as a result of her inability to obtain an effective investigation into the death of her son. Having regard to the circumstances of the present case, the Court awards the applicant EUR 12,000 in respect of non-pecuniary damage. The compensation paid to the applicant pursuant to the outcome of the civil proceedings should not be deducted from this amount, because it was awarded on a different ground, that is, suffering due to the death of her son while in police custody (see paragraph 43-44 and 80-81 above; see, albeit in the context of Article 1 of Protocol No. 1, Đokić v. Bosnia and Herzegovina, no. 6518/04, § 74, 27 May 2010).

B. Costs and expenses

106. The applicant did not seek reimbursement of any costs and expenses.

C. Default interest

107. The Court considers it appropriate that the default interest rate 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,

1. Joins to the merits the Government’s preliminary objection as regards the loss of the applicant’s victim status and dismisses it;

2. Declares the complaint under Article 2 of the Convention admissible;

3. Holds that there has been a violation of Article 2 of the Convention in its procedural limb;

4. Holds that it is not necessary to examine separately the complaint under Article 3 of the Convention;

5. 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, EUR 12,000 (twelve thousand euros) in respect of non-pecuniary damage, to be converted into Serbian dinars at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Josep Casadevall
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> PETROVIC v. SERBIA - 40485/08 - Chamber Judgment [2014] ECHR 776 (15 July 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/776.html Cite as: [2014] ECHR 776