Communicated on 20 February 2014
FIRST SECTION
Application no. 57570/09
Robert POPOSKI
against the former Yugoslav Republic of Macedonia
lodged on 24 September 2009
STATEMENT OF FACTS
The applicant, Mr Robert Poposki, is a Macedonian national, who was born in 1986 and lives in Struga. He is represented before the Court by his mother, Ms R. Poposka.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
On 1 February 2008 at about 6.30 am. two police inspectors and several undercover police officers from the “Tigers” special forces unit raided the applicant’s house in order to arrest him on suspicion of extortion. The applicant was found in his grandparents’ bedroom, which was directly above his house. The applicant was handcuffed. At that moment, one of the undercover police officers hit the applicant in the face with the butt of a shotgun. The officers started beating his head and body. He was then taken to his house, where he saw his parents talking to the police inspectors. He spat up blood on a tissue his mother was holding for him.
The applicant was taken to Bitola police station for questioning. During his transfer to the station he was given painkillers. After the interview he was brought before an investigating judge of the Struga Court of First Instance (“the trial court”), who heard evidence from him in the presence of his lawyer. The applicant did not complain to the investigating judge that he had been assaulted when arrested, because he was unaware of his rights in that regard and feared what would happen. The investigating judge did not notice any injuries on the applicant’s face and remanded him in custody.
At 3.15 pm. the applicant was taken to Bitola prison. On 2 February 2008 he was examined by a doctor, who referred him to Bitola Hospital. On 5 February 2008 he was admitted and diagnosed as having a broken jaw. He was discharged on 6 February 2008 following an operation. Between 7 and 20 February 2008 he was hospitalised in Skopje Hospital.
The applicant submitted a copy of medical reports regarding his diagnosis and evidence of when the above-mentioned medical examinations took place.
2. Criminal proceedings regarding the alleged incident of 1 February 2008
On an unspecified date the applicant requested the Ombudsman to open an investigation into his allegations of police brutality. By letter of 3 April 2008 the Ombudsman informed him that an inquiry had revealed that the police had exceeded its powers and violated the applicant’s rights by using unjustified force and coercion when arresting him. Since the Ombudsman could not identify the police officer who had harmed him unlawfully, he lodged a criminal complaint with the public prosecutor alleging ill‑treatment. It appears that on 16 April 2008 the Helsinki Committee Office joined to the complaint. On 22 April 2008 the applicant requested that the public prosecutor decide the complaint.
On 10 April 2008 the Department for Control and Professional Standards within the Ministry of the Interior (“the DCPS”) informed the applicant that, on the basis of the evidence available (medical reports, prison records, photographs taken soon after his arrest while in police custody, statements taken from the investigating judge and the public prosecutor, who had also been present when the applicant gave evidence on 1 February 2008), it concluded that “the injury could have been inflicted once (the applicant) had been imprisoned, by a person in Bitola prison not a police officer”.
On 20 October 2008 the public prosecutor informed the applicant that there were no grounds for suspecting that the police officers, subsequently identified as S.D., T.N., D.G. and N.B., had committed the crime suspected.
Following a request by the applicant, who had taken over the conduct of the prosecution as a subsidiary prosecutor, on 17 March 2009 the investigating judge opened an investigation against S.D., T.N., D.G. and N.B. on suspicion that they had ill-treated and seriously injured the applicant.
On 12 March 2012 the trial court acquitted the accused because the proceedings had not been initiated by the correct prosecutor in respect of the charges of bodily injury, and because there was insufficient evidence concerning the allegations of ill-treatment. During the proceedings the trial court heard the applicant and his parents, the accused, the two police inspectors who had been at the applicant’s house at the relevant time, and the commander-in-chief of the police station where the applicant had been taken after his arrest. It also admitted as evidence an expert opinion, according to which the applicant’s injuries were serious and could have been caused by the butt of a shotgun applied with brute force, a blow, or a fall onto something sticking out from a hard surface. The court established the following: that the accused had arrested the applicant on 1 February 2008 in his house, and had not used any force against him; that the two police inspectors and the applicant’s parents had not been in the applicant’s grandparents’ bedroom during his arrest; that the applicant had not complained that he had been injured until after he had been imprisoned; that the prison authorities had registered, upon the applicant’s incarceration in Bitola prison, an injury to the applicant’s jaw; that the applicant had not been examined by a prison doctor because of absence and because he had not complained of any pain. Relying on evidence produced by the accused and other police officers, the court held that there was insufficient evidence to prove that the accused had committed the crime suspected. After a public hearing on 10 October 2012, the Bitola Court of Appeal quashed the trial court’s judgment and remitted the case for fresh examination. Relying on the facts as established, the court concluded that the applicant had been injured between 6.30 a.m. on 1 February 2008 and his examination by a doctor in Bitola prison the next day. It instructed the lower court, in the new proceedings, to cross-examine the expert in order to establish whether the applicant could have sustained the injuries at 6.30 a.m. on 1 February 2008 and stand subsequently his examination before the investigating judge and transfer to Bitola prison.
On 27 May 2013 the trial court acquitted the accused for lack of evidence, establishing the same facts as in its previous judgment of 12 March 2012. In so doing, it relied on evidence already admitted. It also heard oral evidence from the expert, according to whom the kind of injury in question (a broken jaw) was usually followed by bruising, swelling and pain when the mouth is opened. In any event, visible external changes to appearance (bruising) would always occur about 10 minutes after the injury had been sustained, and would disappear two to three weeks later.
The applicant appealed. It appears that the case is pending before the Bitola Court of Appeal.
3. Compensation proceedings against the respondent State
On 28 May 2009 the applicant brought a civil action for damages against the respondent State regarding the alleged incident of 1 February 2008. It appears that no decision has yet been rendered.
COMPLAINTS
Without relying on any Article of the Convention, the applicant complains that a police officer broke his jaw. He also complains that the compensation proceedings were unduly protracted.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to inhuman or degrading treatment for which the State can be held responsible under Article 3 of the Convention?
2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), does the investigation in the present case comply with the requirement of promptness under Article 3 of the Convention?
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