Information Note on the Court’s case-law 249
March 2021
Baranin and Vukčević v. Montenegro - 24655/18 and 24656/18
Judgment 11.3.2021 [Section V]
Article 3
Effective investigation
Continuing ineffectiveness of investigation into police brutality after domestic court finding of substantive and procedural violations of Article 3: violation
Facts – In 2015, the applicants were beaten by unidentified members of the police Special Anti-Terrorist Unit (SAU). They had been in the vicinity of a political protest organised by an opposition coalition which turned violent, but in which they had not participated. An ongoing investigation was opened into the incident by the State prosecutor’s office (SPO), leading to the conviction of the SAU commander for aiding a perpetrator following the commission of a crime. In 2017, the Constitutional Court found a violation of both the substantive and procedural aspects of Article 3 in relation to the incident. The applicants also instituted civil proceedings against the State and received some compensation in respect of non-pecuniary damage for the ill-treatment suffered.
Law – Article 3
(a) Scope of the case – In view of the domestic courts’ finding of a violation of the substantive aspect of Article 3, the compensation obtained in that regard, and in particular the applicants’ focus on the continuing ineffective nature of the investigation under the procedural aspect of Article 3, it was no longer justified to continue the examination of the applicants’ initial complaint under the substantive aspect of Article 3. The Court therefore limited its examination to the procedural aspect of Article 3.
(b) Effective investigation – The investigation conducted in the present case had resulted in clarifying some of the facts, in particular that the applicants had indeed been ill-treated by police officers, and the injuries they had sustained. It had also resulted in the prosecution and conviction of the SAU commander. However, the Court had to be persuaded that the fact that only part of the relevant facts had been established and only some of those responsible had been sanctioned had not been the result of a clearly deficient and ineffective investigation imputable to the authorities. As the Constitutional Court had found that the investigation prior to its decisions had not met the Article 3 requirements, the Court examined the investigation which had taken place after the publication of those decisions.
The investigation had been and was still being carried out by the SPO, which had eventually pursued most of the lines of enquiry and interviewed most of the traceable witnesses. However, the State prosecutor had not interviewed any of the SAU officers engaged on the night of the incident, nor a number of witnesses and potential witnesses, until after the Constitutional Court decisions had been published, namely two years after the incident. In other words, those acts had not been carried out promptly. The SPO also had not pursued all lines of enquiry: notably, not everybody had been questioned, and the Forensic Centre had not been contacted. It had also never been clarified if there had only been SAU members on the scene that night. While it was certainly possible that none of those lines of enquiry would have shed any additional light on the incident in question either, that did not sufficiently justify having not pursued them.
The State prosecutor’s office was institutionally and hierarchically totally independent from the Police Directorate and Ministry of the Interior. However, the State prosecutor had depended heavily on the police and had requested the assistance of the Security Centre and the Police Directorate, which had been subject to the same chain of command as the officers under investigation and thus lacked independence. While police might participate in such investigations, sufficient safeguards had to be introduced in order to satisfy the requirement of independence, and in the present case, there had been no such safeguards.
Under national law the applicants, as injured parties, and their representative could attend the questioning of, inter alia, witnesses so that they could propose or directly put questions to them. In order to be able to exercise that right, however, they needed to be informed of the place and time of the questioning, which did not appear to have happened.
While the Government had submitted that the applicants’ complaint had been premature as the investigation had still been ongoing, there was nothing in the case file as to what investigative measures, if any, had been taken after November 2017. The Court acknowledged that there had been a number of incidents and clashes that same evening, including attacks against the place, and security considerations had required police interventions. However, even where the events leading to the duty to investigate occurred in a context of generalised violence, and investigators were confronted with obstacles and constraints which compelled the use of less effective measures of investigation or caused an investigation to be delayed, Articles 2 and 3 entailed that all reasonable steps had to be taken to ensure that an effective and independent investigation was conducted.
In view of the above, the investigation had not been prompt, thorough and independent and had not afforded sufficient public scrutiny. It had had deficiencies which had undermined its ability to identify the persons responsible and insufficient efforts had been made, following the Constitutional Court’s decision, to remedy those deficiencies or comply with the Constitutional Court’s instructions. That the facts concerning the actions of the SAU commander had been established and that he had been sanctioned could not lead to the conclusion that the respondent State had discharged their procedural duty to conduct an effective investigation.
(c) Victim status – Despite the prosecution and conviction of the SAU commander and award of compensation, the Court’s finding regarding the continuing ineffectiveness of the investigation even after the Constitutional Court’s ruling meant that the applicants had not lost their victim status.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 each in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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