Communicated on 1 September 2015
THIRD SECTION
Application no. 19796/14
Đorđe KRSMANOVIĆ
against Serbia
lodged on 5 March 2014
STATEMENT OF FACTS
The applicant, Mr Đorđe Krsmanović, is a Serbian national, who was born in 1975 and lives in Zemun. He is represented before the Court by Mr A. Cvejić, a lawyer practising in Belgrade.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 1 April 2003 the applicant was arrested, along with several other persons, by members of the Special Antiterrorist Unit of the Ministry of Interior (Specijalna antiteroristička jedinica Ministrarstva unutrašnjih poslova (SAJ)). His arrest was conducted in the context of a large-scale police operation “Sabre” (“Sablja”) following the assassination of the Serbian Prime Minister on 12 March 2003.
During the arrest, the applicant was allegedly ill-treated. He claims that members of the SAJ broke into the apartment where he was located together with several other persons. He further asserts that the members of the SAJ promptly handcuffed everybody found at the apartment including him, and that immediately afterwards the physical and verbal abuse commenced. The members of the SAJ allegedly kicked the applicant indiscriminately all over his body, including his face. According to the applicant, the beating and verbal abuse continued for an hour. He claims that during that time none of the detained persons put up any resistance.
According to the applicant, the ill-treatment continued during his questioning at the police station. The police officers allegedly beat him with baseball bats all over his body as well as with police truncheons on both his soles and the palms of his hands. He also alleges that the truncheon was inserted several times into his anus. He further claims that the nylon bag was put over his head, suffocating him until he lost consciousness. He adds that during the entire incident he was handcuffed, that he remained in his underwear and with a bag over his head, the latter preventing him from seeing the faces of the persons participating in his ill-treatment. An extensive list of the applicant’s injuries, including large hematomas on his soles, palms, face, shoulders and gluteus were recorded on his prison medical record of 14 April 2003. The same record also contains a statement “beaten in police station ‘29 November’” (“tučen u SUPU 29. novembar“).
From the material submitted by the applicant, it would appear that no official investigation into the events related to the applicant’s arrest and subsequent detention was conducted until 24 February 2006 when the applicant was invited to give a statement to the Ministry of Interior’s Inspector General’s Service (Generalni inspektorat Ministarstva unutrašnjih poslova). On the same date he lodged an official complaint.
Since no investigation was initiated after this complaint, the applicant lodged a criminal complaint on 1 July 2007 against a number of the unknown perpetrators as well as against three police officers identified only by a surname. On an unspecified date his criminal complaint was rejected by the Public Prosecutor.
Upon learning of the decision of the Public Prosecutor, on 23 January 2008 the applicant took over criminal proceedings as a subsidiary prosecutor by lodging a request for the initiation of an investigation against the three police officers he was now able to identify in full. He could not request the initiation of an investigation against the other unknown perpetrators since, in accordance with the Serbian law, private prosecutors cannot make such a request. On 21 April 2008 the investigating judge interviewed two medical doctors who worked at the prison hospital where the applicant was treated after the alleged ill-treatment. On 15 January 2009 the investigating judge interviewed the three suspects. On 24 March 2009, the investigating judge decided not to initiate an investigation because of the lack of evidence. On 23 September 2009 the Pre-Trial Chamber of the First Belgrade Municipal Court confirmed the decision of the investigating judge. On 13 April 2010 the Belgrade Appellate Court upheld this decision.
On 10 July 2010 the applicant lodged a Request for the Protection of Legality with the Public Prosecutor, which was rejected on 11 October 2010.
On 11 July 2010 the applicant also lodged a constitutional appeal which was, in essence, identical to the application submitted to the Court. He described all the relevant facts, submitted files corroborating his version of events and, among other complaints, explicitly claimed that the lack of an investigation into his ill-treatment violated his rights under Article 3 of the Convention. On 24 May 2013 the Constitutional Court issued a request for additional information. On 10 June 2013 the applicant responded to the request. On 23 July 2013 the Constitutional Court rejected the applicant’s constitutional appeal. It primarily considered the applicant’s complaints under Article 6 of the Convention and found them to be manifestly ill-founded. It found the applicant’s complaint under the procedural limb of Article 3 to be unsubstantiated.
B. Relevant domestic law
The Criminal Code 1977 (published in the Official Gazette [Službeni glasnik] of the Socialist Republic of Serbia no. 26/77, amendments published in the Official Gazette of the Socialist Republic of Serbia nos. 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and the Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. The relevant Articles read as follows:
Article 65 (Forced Confession)
“1. Whoever acting in an official capacity uses force or a threat or other illicit means or methods with intent to force a confession or other statement from a suspect, witness, expert witness or other person, shall be punished with imprisonment from three months to five years.”
“2. If the forced confession or other statement is followed by grave violence, or if because of the forced confession the suspect faces particularly grave consequences in criminal proceedings against him, the perpetrator shall be punished with no less than three years of imprisonment.”
Article 66 (Ill-treatment by public officials acting in an official capacity)
“Whoever acting in an official capacity ill-treats or insults another or otherwise treats such person in a humiliating and degrading manner, shall be punished with imprisonment from three months to three years.”
The Code of Criminal Procedure 2001 (published in the Official Gazette [Službeni list] of the Federal Republic of Yugoslavia no. 70/01, amendments published in the Official Gazette of the Federal Republic of Yugoslavia no. 68/02 and the Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) was in force from 28 March 2002 until 15 January 2013. Most criminal offences (including ill-treatment by public officials acting in an official capacity) are subject to public prosecution, but some minor offences are only subject to private prosecution. Under Article 20 of the Code, the public prosecutor must prosecute when there is sufficient evidence that a named individual has committed a criminal offence which is subject to public prosecution. Article 61 of the Code provides that when the public prosecutor decides not to prosecute such an offence because of a lack of evidence, the victim of the offence may nevertheless start a subsidiary prosecution within eight days from the notification of the public prosecutor’s decision.
COMPLAINT
The applicant complains under Articles 3, 6 § 1 and 13 of the Convention about the lack of effective investigation into his alleged ill-treatment.
QUESTIONS TO THE PARTIES
1. Having regard to the procedural protection from torture (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
2. The Government are requested to submit the following documents:
a) a copy of the entire file concerning the applicant’s alleged ill-treatment from the Inspector General’s Service (notably, all its reports concerning this case), the Office of the First Municipal Public Prosecutor in Belgrade, and the First Municipal Court in Belgrade;
b) the Inspector General’s Service Ordinance 2001 (Pravilnik o radu službe Generalnog inspektora RJB) and
c) a copy of the entire criminal file from the criminal proceedings against the applicant.
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