CASE OF MILJAK v. CROATIA

SECOND SECTION

CASE OF MILJAK v. CROATIA

(Application no. 15681/18)

JUDGMENT
 

STRASBOURG

16 January 2024

This judgment is final but it may be subject to editorial revision.

In the case of Miljak v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

 Pauliine Koskelo, President,
 Lorraine Schembri Orland,
 Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 15681/18) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 March 2018 by a Croatian national, Mr Hrvoje Miljak (“the applicant”), who was born in 1988, lives in Šibenik and was represented by Ms L. Horvat, a lawyer practising in Zagreb;

the decision to give notice of the application to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik;

the parties’ observations;

Having deliberated in private on 12 December 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s alleged ill-treatment by prison officers and the lack of an effective investigation into the incident.

2.  In the morning of 6 October 2016, the applicant was randomly selected to witness a search of his cell conducted by five prison officers, while his cellmates waited outside. He was warned not to touch anything inside the cell while the search was taking place.

3.  According to the Government, the applicant had asked if he could take his socks and he was told that he could not. At one point, one of the officers noticed that the applicant had put something in his mouth and ordered him to stop and spit out what he had put in the mouth. The applicant replied that he had swallowed a subtoxone tablet. The officers then ordered the applicant to lie down, which he did and then two officers laid him with his chest against the floor, while an officer held him by the neck and head. Two other officers were holding the applicant’s arms behind his back, until he was handcuffed.

4.  According to the applicant, he had asked whether he could take his socks because he was cold and, since nobody replied, he had reached to take his socks. At that moment, the officers stopped him by throwing him on the floor and hitting him on the head and body several times.

5.  In the early evening, the prison nurse noticed bruises on the applicant’s left temple and behind his ear, after which he was taken to the hospital. He was diagnosed with two fractured ribs, pneumothorax, several scratches and blow marks on the left side of the chest, neck and head, as well as blows to the left temporal area and the left earlobe. The applicant underwent surgery and remained hospitalised until 14 October 2016.

6.  Following the incident, an inspection ordered by the competent Ministry was conducted but its results, noted in a report dated 21 October 2016, were inconclusive since it had not been possible to determine the exact circumstances in which the applicant had suffered the injuries.

7.  On 19 May 2017 the applicant filed a criminal complaint with the Split Municipal State Attorney’s Office against unknown prison employees complaining about their cruel and degrading treatment, inflicting serious bodily injury and committing abuse of authority.

8.  During the investigation, the inspection report had been obtained (see paragraph 6 above), as well as a forensic expert opinion by a certified court expert. The latter concluded that the applicant’s rib fracture could have been caused by a single blow with a blunt hard object (such as a fist or a foot with a shoe on it) with high intensity force, or by a spontaneous or forced fall on an angular blunt hard object such as the edge of a stair, a bed or a cupboard. His hematomas on the left earlobe and temporal region of the head could have been caused by one or two blows with a blunt hard object (an open or a closed fist) with low to medium intensity force, but also by the head hitting a blunt hard object. Finally, hematomas on the left side of his neck could have been caused by pressing the neck with a fist or in a so-called “tie” position with lower or medium intensity force, or by hitting with a blunt hard object with medium intensity force.

9.  On 31 January 2018 the Split Municipal State Attorney’s Office dismissed the applicant’s criminal complaint for serious bodily injury concluding that, since the medical expert opinion had allowed for the possibility of several different ways in which the applicant’s injuries could have come about, there was no reasonable suspicion that the suspected prison officers had intentionally inflicted those injuries on the applicant. The applicant did not take over the prosecution.

10.  The applicant complained, under Article 3 of the Convention, about his ill-treatment by prison officers and the lack of an effective investigation into the incident.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

11.  As regards the Government’s contention that the applicant had failed to exhaust domestic remedies by not having lodged a constitutional complaint, the Court notes that it has already rejected a similar preliminary objection in the context of both a procedural and a substantive complaint under Article 2 of the Convention in the case of Daraibou v. Croatia (no. 84523/17, §§ 66-70, 17 January 2023). It sees no reason to depart from those conclusions in the present case, where the competent State Attorney’s Office dismissed the applicant’s criminal complaint in January 2018 (see paragraph 9 above), whereas a constitutional complaint became an effective domestic remedy for complaints concerning ineffective investigations under Articles 2 and 3 of the Convention in 2019 (see Kušić and Others v. Croatia (dec.), no. 71667/17, § 99, 10 December 2019). Moreover, the Constitutional Court’s practice submitted by the Government did not succeed in showing that, at the time of the lodging of his application with the Court, a constitutional complaint constituted an effective remedy as regards the applicant’s complaint under the substantive limb of Article 3 of the Convention (compare, mutatis mutandis, Daraibou, cited above, § 68). The Government’s objection in this respect must therefore be dismissed.

12.  Furthermore, the Government’s suggestion that the applicant should have taken over the prosecution and proposed that further investigative measure be taken after the State Attorney had dismissed his complaint must also be dismissed for the reasons already explained in Đurđević v. Croatia (no. 52442/09, § 64, ECHR 2011 (extracts)).

13.  The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

14.  The general principles concerning the State’s procedural obligations in respect of alleged ill-treatment in police custody are summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 114-23, ECHR 2015). In particular, when there is reason to believe that an individual has been subjected to ill-treatment by a State official, the State is required to conduct an effective official investigation (ibid., § 116; and Tadić v. Croatia, no. 10633/15, § 41, 23 November 2017). It cannot be left to the initiative of the victim either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures since the authorities must act on their own motion (compare ibid., § 119, and Tadić, cited above, § 41). Furthermore, the investigation must be thorough, which means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation (ibid., § 123).

15.  Applying those principles to the present case, the Court firstly notes that, instead of starting an ex officio criminal investigation with a view to establishing the manner in which the applicant’s injuries in custody had been sustained immediately after the incident of 6 October 2016, a criminal investigation was opened only upon a criminal complaint lodged by the applicant some six months later. The competent State Attorney had at its disposal an inconclusive inspection report and a medical expert opinion concerning the possible causes of the applicant’s injuries.

16.  While it is true that the latter expert medical opinion allowed for several different scenarios in which the applicant’s serious injuries may have been sustained (see paragraph 8 above), the Court cannot but note that one of the alternatives clearly did not correspond to either the Government’s or the applicant’s account of events (see paragraphs 3 and 4 above). Namely, neither the Government nor the prison officers who had been present during the incident at no point claimed that the applicant had sustained injuries by falling on an angular blunt hard object which could have caused his rib fractures or hematomas on his head. Instead, they submitted that the applicant himself had laid down on the floor when the prison officers ordered him to do so (see paragraph 3 above). The applicant, for his part, claimed that he was pushed onto the floor, but again not on an angular object (see paragraph 4 above).

17.  However, notwithstanding the above inconsistency, and without interviewing the applicant or the suspected prison officers on that crucial point, the State Attorney’s Office concluded that there had been no reasonable suspicion that the prison officers had caused the applicant the serious injuries in question.

18.  The foregoing shows that the applicant’s criminal complaint had been dismissed without careful scrutiny of all the relevant facts, which is sufficient for the Court to conclude that the investigation in question had not been thorough. There has consequently been a violation of Article 3 of the Convention under its procedural limb.

19.  The general principles concerning the State’s substantive obligations in respect of alleged ill-treatment in police custody are summarised in Bouyid (cited above, §§ 81-90).

20.  The applicant submitted that the prison officers had kicked and punched him while he was lying immobilised on the floor of his prison cell, as a result of which he had sustained serious injuries, had undergone surgery and had remained hospitalised for eight days (see paragraph 5 above).

21.  In view of the above, the Court is satisfied that the applicant has submitted sufficient elements to create a strong presumption that he had sustained the severe bodily injuries complained of during his incarceration, and to shift the burden of proof to the Government (compare Bouyid, cited above, § 83; contrast Perkov v. Croatia, no. 33754/16, § 48, 20 September 2022).

22.  However, the Government have not provided a satisfactory or convincing explanation for the cause of those injuries by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Bouyid, cited above, § 83), nor was a Convention-compliant investigation conducted into the incident (see paragraph 18 above). On the basis of all the material before it, the Court therefore finds that the Government have not satisfactorily established that the applicant’s injuries were caused otherwise than by ill-treatment to which he had been subjected in his prison cell.

23.  There has accordingly been a violation of Article 3 of the Convention under its substantive limb.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage and EUR 8,024.66 in respect of costs and expenses incurred before the Constitutional Court and before the Court.

25.  The Government contested those claims.

26.  The Court awards the applicant EUR 12,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

27.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 3,000 covering costs and expenses under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i)  EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 3,000 (three thousand 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;

Done in English, and notified in writing on 16 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Pauliine Koskelo
 Deputy Registrar President