CASE OF ŠTITIĆ v. CROATIA

FIRST SECTION

CASE OF ŠTITIĆ v. CROATIA

(Application no. 16883/15)

JUDGMENT

STRASBOURG

6 September 2018

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

In the case of Štitić v. Croatia,

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

Kristina Pardalos, President,
Ksenija Turković,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,

Having deliberated in private on 10 July 2018,

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

PROCEDURE

1. The case originated in an application (no. 16883/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Vladimir Štitić (“the applicant”), on 1 April 2015.

2. The applicant was represented by Mr D. Plavec, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. On 9 November 2015 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1967 and lives in Karlovac.

A. The applicant’s arrest

5. At about 5.50 p.m. on 2 November 2012 the police spotted the applicant with another man, V.P., in a vehicle parked in the car park of a supermarket in Biograd na Moru. The applicant was already known to the police as a convicted drug dealer. While he was inside the supermarket the police approached V.P., who tried to throw away a plastic bag containing heroin. The police arrested him. When the applicant left the supermarket, he started to run away, but the police officers caught him and arrested him at about 6 p.m.

6. According to the Government, since the applicant resisted arrest, the police officers had to apply force (a so-called “leg sweep” technique).

7. According to the applicant, he was beaten by the police officers while lying on the ground.

8. The applicant was then taken by the officers to the premises of the Zadar police.

9. A criminal complaint was lodged against the applicant on charges of substance abuse.

10. Medical documentation shows that on 3 November 2012 the applicant was seen by a doctor in the Zadar General Hospital and that he had sustained injuries the day before ”in a fight”. The injuries recorded were a haematoma below both eyes and a perforated left eardrum. A further medical record of 29 August 2013 shows that the applicant had a broken crown on one of his teeth.

B. Police inquiry

11. On 2 November 2012 officers B.R. and B.M. compiled a report for the Criminal Police Department of the Zadar police (“the Zadar criminal police”) on the force they had used against the applicant. The report stated that at about 5.50 p.m. that day several officers from the Drug Crimes Division of the Zadar police had followed a lead that the applicant had been procuring large amounts of heroin from an unknown person in Šibenik and selling it on in Zadar and Biograd na Moru with another person, V.P. The officers had arrived in a van in the car park of a supermarket in Biograd na Moru. Several officers had stayed in the van while officers B.R. and B.M. had attempted to carry out an identity check on the applicant and V.P., who had both been known to the police as convicted drug dealers. V.P. had tried to throw away a plastic bag containing about 5 grams of heroin. The applicant had attempted to run away to avoid being arrested. Officers B.R. and B.M. had grabbed him by his hands but he had continued to resist them. Officer B.M. had then applied a leg sweep technique which had made the applicant fall to the ground and hit the left side of his face. The officers had then applied an arm lock technique to handcuff the applicant. He had refused the medical assistance offered to him and had said that he had had no objections to the conduct of the police officers.

12. A report on the use of force against the applicant compiled on 3 November 2012 by the Zadar criminal police and signed by the applicant indicates that he had “no objections”.

A record of the applicant’s detention of the same date states that he had a visible injury, a haematoma above his right eye, and that he said that he had fallen down.

13. On 5 November 2012 the chief of the Zadar criminal police sent a report on the use of force against the applicant to the chief of the Zadar police, describing the events at issue in the same manner as officers B.R. and B.M. He expressed the opinion that the police officers had lawfully used forced against the applicant.

14. On an unspecified date the applicant lodged a complaint with the Ministry of Interior about the force used against him by the police officers.

15. On 28 December 2012 the applicant lodged a criminal complaint with the Zadar Municipal State Attorney’s Office (“the State Attorney’s Office”), alleging that police officers B.R., B.M. and S.K. had hit and kicked him all over during his arrest on 2 November 2012, even though he had not put up any resistance. He also alleged that later on, on the police premises, an officer wearing the badge no. 4373 had pushed him down the stairs. He enclosed a medical report dated 3 November 2012 showing that he had suffered a haematoma under both eyes and a perforated eardrum, the latter of which was considered a serious bodily injury.

16. On 8 January 2013 the State Attorney’s Office asked the Zadar police to interview officers S.K. and B.R. as well as other officers involved in the incident, including the officer whose badge number the applicant had remembered. The police were also instructed to obtain medical records concerning the applicant’s injuries and to proceed with the case urgently and submit their report within thirty days.

17. On 14 January 2013 officer A.V., the chief of the Drug Crimes Division of the Zadar police, interviewed B.R. and F.Z. The record of the interview with B.R. describes the applicant’s arrest in the same terms as the report compiled by officers B.R. and B.M. (see paragraph 11 above). F.Z. was one of the officers who had stayed in the van when the two other officers had attempted to carry out identity check on the applicant and V.P. F.Z. did not describe the use of force against the applicant by the two other officers, but did state that the allegations in the applicant’s criminal complaints were false.

18. On 16 January 2013 the Zadar police asked the Prison Service for the identity of the officer with badge no. 4374 but it turned out that none of the officers had had that particular badge number.

19. On 17 January 2013 officer A.Š., the chief of the Forensics Division of the Zadar police interviewed officer S.K. He said that on the critical occasion he had been on duty in Zadar and had had no knowledge of the events at issue.

20. On 28 March 2013 the chief of the National Police asked the chief of the Zadar police to check the applicant’s allegations from the standpoint of the police and to cooperate with the State Attorney’s Office.

21. On 9 April 2013 the State Attorney’s Office informed the applicant that the police had been asked to carry out an enquiry into his allegations. The report it had received on 23 January 2013 indicated that the applicant had resisted the police officers in their attempt to carry out an identity check and put him in a police vehicle, in response to which the officers had used force against him which had resulted in him being forced to the ground and “receiving a blow to the head”. It was concluded that the applicant’s allegations were unfounded and he was informed of his right to complain to the Zadar County State Attorney’s Office.

22. On 12 April 2013 I.M., an officer from the Professional Conduct Department of the Zadar police interviewed officer M.K., a guard from the police’s detention facility. He said that in November 2012 the applicant and V.P. had been brought into the facility by police officers on suspicion of substance abuse. He had noticed some injuries on the applicant, namely a bruise above his eye. The applicant had said that he had fallen. At about 6 p.m. both the applicant and V.P. had sought medical assistance because of withdrawal symptoms. An ambulance had arrived and taken the applicant to the Zadar General Hospital. M.K. had made an official note about these events and had also informed the Deputy State Attorney.

23. On 25 April 2013 officer I.M. (see paragraph 16 above) wrote a report on the force used against the applicant. She stated that the State Attorney’s Office had forwarded the applicant’s complaint to the General Crime Department of the Zadar police, against officers S.K. and B.R. as well as one unidentified officer, alleging that they had ill-treated and hit him which had caused him bodily injuries. The State Attorney’s Office had asked that several officers be interviewed and that the applicant’s medical documentation be made available. The complaint had been assigned to the chief of the Zadar criminal police.

Officer I.M. stated that the chief of the Drug Crimes Division had interviewed officers B.R., B.M. and F.Z, while the chief of the Forensics Division had interviewed officer S.K. The related report had been sent to the State Attorney’s Office on 21 January 2013.

Officer I.M. then described the incident in question as reported by the police officers implicated. She concluded that the applicant’s complaints were unfounded and that it had been aimed at securing him a better position in the criminal proceedings against him.

24. On the same day the chief of the Zadar police sent a letter to the applicant informing him that the police officers had lawfully used force against him and that no case of ill-treatment could be established on the basis of the medical reports or statements of the police officers concerned. Furthermore, his own statements had been contradictory.

25. On 26 April 2013 the chief of the Zadar police sent a report to the chief of the Supervisory Service of the National Police (Služba za nadzor, unapređenja rada i razvoj policije), repeating the findings of officer I.M.

26. On 8 May 2013 the applicant replied to the State Attorney’s Office, stressing that his submission was a criminal complaint rather than a petition and asked that a decision concerning the merits of his allegations be adopted.

27. On 14 May 2013 the State Attorney’s Office ordered the police to identify the fourth police officer mentioned in the criminal complaint who had allegedly pushed the applicant down the stairs and had the badge no. 4743 (not 4374) and whose last name was A.

28. On 12 November 2013 the Deputy State Attorney interviewed officers B.M. and B.R.

B.M. said that on 2 November 2012 the police had received information that the applicant had been procuring heroin and selling it on in the Biograd na Moru and Zadar area. B.M. had been working that day with officers B.R., J.P. and F.Z. They had noticed the applicant with V.P. in a vehicle which had been parked in the car park of a supermarket in Biograd na Moru. The applicant had left the vehicle and entered the supermarket while V.P. had stayed inside it. B.M. and B.R. had approached the vehicle, identified themselves to V.P. who had then left the vehicle and thrown away a plastic bag which had contained about fifty grams of heroin. V.P. had not put up any resistance and had been handed over to officers J.P. and F.Z. who had placed him in the police vehicle. B.M. and B.R. had approached the applicant inside the supermarket and identified themselves. Since there had been some customers in the supermarket the officers had not resorted to handcuffing the applicant but had instead taken the applicant by the arm and escorted him towards the exit. The applicant had verbally expressed his discontent but when inside the supermarket had not physically resisted the officers. B.M. had held the applicant by one of his wrists. When they had left the supermarket the applicant had made a sudden movement to free himself and had attempted to flee. Officer B.M. had caught up with him and applied a leg sweep technique. Officer B.R. had also then caught up with the applicant who had then fallen to the ground, together with officers B.M. and B.R. While on the ground the applicant had fiercely and aggressively resisted the officers, attempting to get up and flee. That had lasted for about three to four minutes. It had been difficult for the officers to hold the applicant down, as he had weighed about 90 kilograms. B.M. admitted that in responding to the applicant’s fierce resistance he might have hit him once or twice in order to prevent him from fleeing. His intention however had not been to hurt him. After the applicant had been overcome, he had been restrained and there had been no further hitting or ill-treatment. B.M. also stated that the officers’ conduct in respect of the applicant had been completely professional and that the use of force against the applicant had been “unavoidable”. The officers had been cautious since they had known the applicant as a drug dealer and had had to ensure that he did not flee and destroy the evidence. B.M. also said that officer S.K. had never worked with them.

B.R. described the incident in the same terms as officer B.M. As regards the specific moment when the applicant and two officers had fallen to the ground he said that the situation had become really messy because the applicant had put very strong resistance to fight them off. Officer B.R. admitted that in the commotion he or officer B.M. had hit the applicant on the head but neither of them had had any intention to hurt the applicant. The commotion on the ground had lasted for about three to four minutes after which the officers had managed to overcome and handcuff the applicant. He also stressed that there had been a risk of the applicant fleeing and destroying the evidence.

29. On 26 November 2013 the State Attorney’s Office dismissed the complaint on the basis of statements taken from the police officers involved as well as from officers, the applicant’s allegations and the medical documentation enclosed. It found that officers B.M. and B.R. had had no intention of causing serious injuries to the applicant. The decision relied on the officers’ assertion that during his arrest the applicant had put up strong resistance and that the force used against him had been necessary. The applicant was informed of his right to take over the prosecution by lodging an indictment against the accused within eight days.

30. The applicant then took over the prosecution.

C. Proceedings upon the applicant’s request for an investigation

31. On 10 December 2013 the applicant asked for an investigation into the matter. He lodged an indictment with the Zadar Municipal Court the following day, against officers B.R., B.M. and S.K. He repeated his allegations and requested that the accused, V.P. and the security guards of a supermarket on duty at the critical time be questioned, and that a forensic report be ordered in order to establish how his injuries had been caused.

32. The applicant’s request for an investigation was dismissed on 11 June 2014 by a Zadar County Court investigating judge on the grounds that the officers involved had had no intention of causing serious bodily injuries to him. No further witnesses were questioned and no reasons were given in that regard.

33. The applicant appealed on 16 June 2014. He argued that the relevant facts surrounding his arrest had not been assessed, that no evidence had been collected and that it was for the State authorities to prove that the injuries he had sustained during his arrest had not been caused by the police. The appeal was dismissed on 30 June 2014 by a three-judge panel of the Zadar County Court on the grounds that the perforated eardrum the applicant had suffered during his arrest did not amount to a serious bodily injury.

34. A subsequent constitutional complaint lodged by the applicant was declared inadmissible on 21 October 2014 by the Constitutional Court for lack of competence on the grounds that it did not concern his civil rights and obligations or a criminal charge against him.

D. Proceedings on indictment

35. On 11 December 2013 the applicant lodged an indictment with the Zadar Municipal Court against B.R., B.M. and S.K. on charges of causing serious bodily injury.

36. It was declared inadmissible on 30 April 2014 on the grounds that it did not contain all the relevant information, namely that the accused had not given any oral evidence beforehand, as required by law.

37. On 9 May 2014 the applicant lodged an appeal, arguing that when his criminal complaint had been dismissed by the State Attorney’s Office on 26 November 2013 he had been instructed to take over the prosecution by lodging an indictment within eight days. He had complied with that time‑limit and had also on 11 December 2014 asked the Zadar County Court to take oral evidence from the accused. The appeal was dismissed on 4 February 2015 on the grounds that the accused had not given any evidence beforehand.

II. RELEVANT DOMESTIC LAW

38. The relevant domestic law is summarised in the case of Tadić v. Croatia (no. 10633/15, §§ 32-35, 23 November 2017).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

39. The applicant complained that he had been ill-treated during his arrest, and that there had been no effective investigation in that respect. He relied on Article 3 of the Convention, which reads as follows:

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

A. Admissibility

1. The parties’ arguments

40. The Government argued that in the case at issue there had been no reason for the applicant to lodge a constitutional complaint with the Constitutional Court since it was the well-established practice of that court to declare inadmissible constitutional complaints lodged by subsidiary prosecutors against decisions refusing to open criminal proceedings or further investigative measures. The Government therefore considered that the six-month time-limit had started running after the decision of the Zadar County Court had been adopted on 30 June 2014. This, in their view, meant that the application had been lodged with the Court out of the relevant six‑month time-limit.

41. The applicant argued that he had had grounds for lodging a constitutional complaint. He also pointed out that a decision upon his indictment had been adopted on 4 February 2015 and that his application to the Court had been lodged within the six-month time-limit.

2. The Court’s assessment

42. The Court reiterates that the purpose of the six-month time-limit under Article 35 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v. Austria, 29 August 1997, §§ 32-33, Reports of Judgments and Decisions 1997‑V, and Remetin v. Croatia (no. 2), no. 7446/12, § 76, 24 July 2014).

43. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. The Court observes that the applicant’s complaint under Article 3 of the Convention concerning failures and errors on the part of the national authorities concern the investigation and as such cannot be regarded as isolated events; they have to be seen as a whole (compare to D.J. v. Croatia, no. 42418/10, § 56, 24 July 2012).

44. The Court notes that on 28 December 2012 the applicant lodged a criminal complaint with the State Attorney’s Office concerning the alleged ill-treatment by the police on 2 November 2012, which is in principle an adequate and effective remedy as regards the duty to investigate and prosecute acts of violence (see, for example, Beganović v. Croatia, no. 46423/06, § 72-74, 25 June 2009; M.S. v. Croatia, no. 36337/10, § 77, 25 April 2013; and Remetin, cited above, § 78).

45. When his criminal complaint was dismissed by the State Attorney’s Office, the applicant was informed of his right to take over the prosecution by lodging an indictment within eight days.

46. The Court further observes that the Croatian legal system provides for the possibility for the injured party to act as a subsidiary prosecutor. In respect of criminal offences for which the prosecution is to be undertaken by the State Attorney’s Office, either of its own motion or upon a private application, where the Office declines to prosecute on whatever grounds, the injured party may take over the prosecution as a subsidiary prosecutor (see D.J., cited above, § 57).

47. The Court has held that where the national system allows for the injured party to pursue the prosecution on his or her own and he or she makes use of that, those proceedings must also be taken into account (see V.D. v. Croatia, no. 15526/10, § 53, 8 November 2011; Butolen v. Slovenia, no. 41356/08, § 70, 26 April 2012; D.J., cited above, § 58; Otašević v. Serbia, no. 32198/07, § 25, 5 February 2013; and Habimi and Others v. Serbia, no. 19072/08, § 72, 3 June 2014).

48. The applicant complied with the instruction given to him (see paragraphs 10, 11 and 28 above) and took over the prosecution. The final decision in that respect was adopted by the Zadar County Court on 4 February 2015. Given that the application was lodged with the Court on 1 April 2015, it follows that the applicant complied with the requisite six‑month time-limit. This makes it unnecessary for the Court to deal further with the Government’s arguments (compare to Bilbija and Blažević v. Croatia, no. 62870/13, § 89, 12 January 2016). It accordingly rejects their objection.

49. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

(a) The applicant

50. The applicant submitted that on 20 December 2012 police officers had hit and kicked him, causing him to fall down, and had continued to hit and kick him while he had been lying on the ground, all in connection with the arrest which he had not resisted. This was confirmed by the available medical evidence. Even thought he had reported his ill-treatment by the police to the prosecuting authorities and later to the national courts, there had been no effective investigation into his allegations. The national authorities had dismissed all the efforts he had made aimed at prompting them to carry out an effective and thorough investigation, dismissing his complaint on the basis of the statements given by the police officers involved and wrongly concluding that they had had no intention of causing him serious injury. The authorities had also declined to hear evidence from any other witnesses. In particular, no forensic report had been ordered even though that had been the only reliable means of establishing how his injuries had been caused. They had failed to take all the relevant and necessary action to elucidate the true circumstances of the use of force by the police against him.

(b) The Government

51. The Government contended that the injuries the applicant had sustained had not been serious enough to engage the State’s responsibility under Article 3 of the Convention. They also argued that his allegations of ill-treatment by the police were unfounded and unsubstantiated since they had not been borne out by the available evidence. The applicant had sustained these injuries as a result of necessary force being used by the police because he had fiercely resisted his arrest.

52. The Government also pointed out inconsistencies in the applicant’s allegations. He had initially said that he had not been dissatisfied with the way the police had handled the situation and that he had fallen down. Only later had he claimed that he had been ill-treated by the police.

53. As regards the obligation to investigate, the Government contended that the police had promptly carried out an internal investigation which had concluded that the force used against the applicant had been lawful and justified.

54. Further to this, the State Attorney’s Office, on the basis of all the relevant documents, concluded that there were no grounds for any further prosecution.

2. The Court’s assessment

(a) Severity of the ill-treatment

55. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247-C, and A. v. the United Kingdom, 23 September 1998, § 20, Reports 1998-VI).

56. Where a person is injured while in detention or otherwise under the control of the police, any such injury will lead to a strong presumption that the person was subjected to ill-treatment, which gives rise to an issue under Article 3 of the Convention (see, inter alia, Butolen v. Slovenia, no. 41356/08, § 84, 26 April 2012).

57. The Court notes that it is undisputed that two police officers used force against the applicant and that the applicant sustained injuries, all in the context of his arrest. The medical documentation shows that during his arrest on 2 November 2012 he suffered a haematoma under both eyes and a perforated eardrum, the latter being qualified as a serious bodily injury. In view of the above principles, the Court finds that in the present circumstances where physical force was used during the applicant’s arrest by police officers, the injuries were sufficiently serious to reach the “minimum level of severity” under Article 3 of the Convention.

(b) Substantive aspect of Article 3 of the Convention

58. General principles are summarised in the above-cited case of Tadić (§§ 52-54).

59. Allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 161 in fine, Series A no. 25; Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000‑IV; Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006‑IX; Ramirez Sanchez v. France [GC], no. 59450/00, § 117, ECHR 2006‑IX; Gäfgen v. Germany [GC], no. 22978/05, § 92, ECHR 2010; and Bouyid, para. 82).

60. The Court notes that there is no dispute between the parties that the applicant sustained injuries in the context of his arrest. Their versions, however, differ with regard to the extent of those injuries and the manner in which they were caused.

61. The Court observes that there is objective medical evidence showing that at the time of his arrest the applicant suffered a haematoma under both eyes and a perforated eardrum, the latter of which was a serious bodily injury.

62. According to the Government, the only force used against the applicant by the authorities was the leg sweep technique, which had forced the applicant to the ground so it had been possible to restrain and arrest him. Allegedly, the sole reason for the use of such force had been to overcome the applicant’s strong resistance to the arrest and the injuries he had sustained had resulted from his falling down and the application of the leg sweep technique. The applicant, however, contended that his injuries had been caused by the police officers who had unnecessarily hit and kicked him in the course of his arrest.

63. The available evidence differs as to how the applicant sustained his injuries. A medical report of 3 November 2012 indicates that he sustained the injuries the day before “in a fight” (see paragraph 10 above). A record on the force used against him compiled on the same date by the Zadar criminal police and signed by him indicates that he had “no objections” (see paragraph 12 above). Two of the police officers implicated, when interviewed by the Deputy State Attorney, admitted that they might have hit the applicant during the commotion on the ground but that had only been because he had fiercely resisted arrest (see paragraph 28 above). Officer M.K. said that the applicant had told him he had fallen (see paragraph 22 above).

64. Given the lack of conclusive evidence the Court accepts that it cannot be established with sufficient certainty that the injuries the applicant sustained were inflicted by use of force by the police which was not indispensable or which was excessive (compare Tarkan Yavaş v.Turkey, no. 58210/08, § 30 and 31, 18 September 2012). The Court therefore considers that it is not in the position to assess the question whether the applicant suffered treatment contrary to Article 3 of the Convention (see Hüsniye Tekin v. Turkey, no. 50971/99, § 50, 25 October 2005; Coşar v. Turkey, no. 22568/05, §§ 32-35, 26 March 2013; A.N. v. Ukraine, no. 13837/09, § 83, 29 January 2015; Mehdiyev v. Azerbaijan, no. 59075/09, § 75, 18 June 2015; Nekrasov v. Russia, no. 8049/07, § 95, 17 May 2016; and Müftüoğlu and Others v. Turkey, nos. 34520/10 and 2 others, § 63, 28 February 2017).

65. Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the applicant’s alleged ill-treatment by the police.

(c) Alleged inadequacy of the investigation

66. The applicable general principles are set out in the above-mentioned case of Tadić (§ 66).

67. The Court reiterates that Article 3 of the Convention requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see Gök and Güler v. Turkey, no. 74307/01, § 38, 28 July 2009).

68. It is not disputed between the parties that on 2 November 2012 force was used against the applicant during his arrest by three police officers. They immediately reported to their superiors that the applicant had sustained injuries as a result of force used against him. However, the incident is described differently by the applicant and by the Government. The Court notes that the medical documentation shows that the applicant suffered a haematoma under both eyes and a perforated eardrum, the latter of which was a serious bodily injury. In his criminal complaint lodged with the State Attorney’s Office he alleged that he had been hit and kicked by the police, which had caused him to fall down, and that the officers had continued to hit and kick him while he had been lying on the ground. In view of the requirement that any use of physical force by State officials must be confined to what is strictly necessary, the Court considers that the above facts called for an investigation into the applicant’s allegations of ill‑treatment in order to establish all relevant circumstances of the use of physical force against him.

69. Initially, the State Attorney’s Office assigned the enquiry to the Zadar police, the same force to which the implicated officers belonged. On the basis of the findings made by the police themselves, the State Attorney’s Office dismissed the applicant’s allegations.

70. In November 2013, following the applicant’s repeated submissions, the Deputy State Attorney eventually carried out interviews with two of the officers involved (see paragraph 28 above). Their statements were seen as sufficient to conclude that the force used by them had been justified without considering whether it had been proportionate to the circumstances of the case, specifically whether it had been indispensable and/or excessive. It was simply stated that the officers had had no intention of causing serious injury to the applicant.

71. The Court also notes that the applicant took over the prosecution and in that connection lodged an indictment and a request for an investigation. He requested that V.P. and the security guards of a supermarket on duty at the critical time be questioned and that a forensic report be ordered in order to establish how his injuries had been caused. However, the national courts dismissed the applicant’s request for an investigation without giving any reasons as to why the evidence suggested by the applicant was not relevant. In particular, the prosecuting authorities again made no serious effort to assess the most important aspect of the case – whether the force used by the police officers had been indispensable and/or excessive in the given situation. Thus, no forensic reports were ordered which could have established how the injuries had been caused and brought clarification to the applicant’s allegations that he had been hit and kicked by the police officers while both standing and lying on the ground.

72. Instead, the national authorities limited their assessment to reading the applicant’s medical documentation and the statements given by the police officers involved, which were evidently insufficient to elucidate all the relevant circumstances of the applicant’s ill-treatment (compare Gharibashvili v. Georgia, no. 11830/03, § 73, 29 July 2008).

73. Against the above background, it can be concluded that the domestic authorities have not discharged their obligation to carry out an effective investigation into the circumstances of the applicant’s alleged ill-treatment by the police.

74. There has therefore been a violation of the procedural aspect of Article 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

75. 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

76. The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage.

77. The Government considered the applicant’s claim excessive, unfounded and unsubstantiated.

78. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

B. Costs and expenses

79. The applicant did not submit any claim for costs and expenses incurred in the proceedings before the domestic courts or before the Court. Accordingly, there is no call to award him any sum on that account.

C. Default interest

80. 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. Declares the application admissible;

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

3. Holds that there has been no violation of the substantive aspect of Article 3 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Croatian kunas at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

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

Done in English, and notified in writing on 6 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Renata DegenerKristina Pardalos
Deputy RegistrarPresident

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