Communicated on 3 October 2018
FOURTH SECTION
Application no. 4938/16
Goran PRANJIĆ LUKIĆ
against Bosnia and Herzegovina
lodged on 29 December 2015
STATEMENT OF FACTS
1. The applicant, Mr Goran Pranjić Lukić, is a national of Bosnia and
Herzegovina, who was born in 1962 and lives in Potoci, Herzegovina-Neretva Canton, Federation of Bosnia and Herzegovina. The applicant is a lawyer by profession.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The criminal proceedings
2. On 16 July 2004 the Mostar Cantonal Prosecution Service (“Kantonalno tužilaštvo Mostar”) indicted the applicant for the criminal offense of assaulting an official person.
3. In the course of the proceedings the applicant was examined by the neuropsychiatrist under a court order. The expert concluded that the applicant was an asocial person who, because of chronic psychological distress, had developed an increasing range and intensity of symptoms, which were developing towards a psychotic state, which caused the applicant to perceive situations that were very tense and potentially conflicting, as threatening to his own survival and well-being, all could of which lead to excessive and impulsive reactions. Therefore, the expert concluded, the applicant was unable to participate in criminal proceedings, and proposed to the Mostar Municipal Court (“Općinski sud u Mostaru”, “the Municipal Court”) imposition of the security measure of "compulsory psychiatric treatment of the accused" in a psychiatric institution.
4. On 8 February 2011 the applicant was assigned with defence counsel.
5. On 8 April 2011 the Municipal Court rendered a decision accepting the above findings of the expert and decided to stay the criminal proceedings until such applicant’s health improvement that he is capable of participating in the proceedings. The Municipal Court sent the applicant to the Mostar Social Center (“Centar za socijalni rad Grada Mostara”, “the Social Center”) for further proceedings. The applicant appealed.
6. On 21 June 2011 the Mostar Cantonal Court (“Kantonalni sud u Mostaru”, “the Cantonal Court”) rejected the applicant’s appeal.
2. The non-contentious proceedings
7. On 25 October 2011 the Social Center filed a motion for a security measure of mandatory psychiatric treatment of the applicant in non-contentious proceedings before the Municipal Court. The motion was rejected on 6 November 2012. The Municipal Court concluded that, given the available documentation and evidence submitted, the offense had not been committed in a state of insanity, and the applicant was not a severely mentally ill person nor was he “person with a mental disorder” within the meaning of Section 45 of the Law on Non-contentious Proceedings and Section 22 the Law on Protection of Persons with Mental Disorders (“Zakon o zaštiti osoba sa duševnim smetnjama”, “the Protection Law”).The Municipal Court also established that it was not competent to order requested measure given that, pursuant to the Section 43 of the Protection Law, the only body competent to order such a measure was the criminal court in criminal proceedings. The decision was served on the applicant only on 6 February 2013. Invoking Articles 6 and 3 of the Convention, the applicant appealed, but the proceedings were still pending when the applicant submitted his present application.
3. The continuation of criminal proceedings
8. Despite the fact that the decision in non-contentious proceedings was not yet final, and that there was no motion on part of the prosecution for continuation of criminal proceedings, on 21 December 2012 the Municipal Court rendered the new order (“naredba”) for the applicant’s expert examination by a neuropsychiatrist. The Municipal Court ordered the neuropsychiatrist to examine the case file, as well as medical documentation in the Mental Health Center in the Mostar Juzni Logor Hospital in which the applicant was treated, according to the information the Municipal Court had. It also ordered the applicant’s examination, with special emphasis on the applicant’s capability to follow the proceedings, as well as his sanity at the time of committing the offense. In reply to this order, of 27 December 2012, the applicant wrote a short letter noting that the said criminal proceedings against him had been stayed on 8 April 2011, that the non-contentious proceedings were still pending his appeal and that he considered the court’s order for a neuropsychiatric examination “pointless”.
9. On 14 January 2013 the neuropsychiatrist asked for the Municipal Court’s consent for the applicant’s re-examination by psychologist.
10. On 17 January 2013 the Municipal Court invited the applicant for an examination in the Mostar Hospital scheduled for 23 January 2013. The Municipal Court also stated that in case the applicant did not comply with order, or the order could not be served, he would be brought by the Court Police, in accordance with Section 139 of the Code of Criminal Procedure. In his reply of 21 January 2013 the applicant informed the Municipal Court that he had not been served with the second-instance decision in non-contentious proceedings (see paragraph 8. above). The applicant also repeated that the criminal proceedings against him were still stayed, that there was no decision on continuation and that he doubted the independence and impartiality of the Municipal Court. In the light of all circumstances he did not find of reasonable to appear at the place and time for the scheduled examination.
11. On 30 January 2013 the Municipal Court rendered an order to the Court Police (“dovedbeni nalog”) to take the applicant to the Mostar Hospital forcibly (“prinudnim putem”), on 5 February 2013, for expert examination by psychiatrist and psychologist. The Municipal Court also ordered the Court Police to be present at the applicant’s examination. The applicant was taken by the Court Police for examination, but the examination was not held, since the applicant sought the exemption of the experts.
12. On 29 March 2013 the Municipal Court again summoned the applicant to come to the Mostar Hospital for neuropsychiatric examination intended to determine whether he was capable of following the criminal proceedings. On 12 April 2013 the applicant sent another submission to the Municipal Court stating that it had applied various methods of torture of him and that he could not come to the scheduled examination. He accompanied his submission with the decision of 6 November 2012 rendered in non-contentious proceedings (see paragraph 8. above).
13. On 7 May 2013 the Municipal Court rendered another order to the Court Police to take the applicant to the Mostar Hospital on 8 May 2013 for expert examination by psychiatrist and psychologist. The Municipal Court again ordered the Court Police to be present at the applicant’s examination. In spite of the applicant’s written justification that he could not attend the examination, the Court Police took the applicant again for examination. The applicant again sought the exemption of the experts, in which regard he handed his written submission both to the experts and to the Municipal Court. It appears that the Municipal Court did not decide on the exemption request, nor did the examination take place.
14. On 24 May 2013 the Municipal Court invited the applicant to attend the court hearing scheduled for 7 June 2013. If the applicant did not come or justify his absence he would be brought forcibly, or he could be detained. The applicant was also instructed that he could engage a defense lawyer.
15. On 3 June 2013 the applicant sent a written justification to the Municipal Court in which he stated that “he was not capable of participating in the criminal proceedings due to the expert findings of 12 March 2008 and of 31 December 2010”. The applicant added that the decision of 6 November 2012 was still not final, as a precondition for continuation of criminal proceedings.
16. On 5 June 2013 by the Municipal Court ordered the applicant’s examination by a psychologist for 14 June 2013.
17. Also, on 5 June 2013 the Municipal Court rendered another order to the Court Police to take the applicant to the Mostar Hospital forcibly on 6 June 2013, for an expert examination by a psychiatrist. The Municipal Court again ordered the Court Police to be present at the applicant’s examination. Also, on the same day, the Municipal Court rendered another order to the psychologist and neuropsychiatrist to examine the applicant’s medical file which is in the Mostar Hospital, as well as to examine the applicant personally, with a view to determining what had been the applicant’s mental condition at the time of committing the offense; whether the applicant was capable of following further criminal proceedings; and, if the results showed a disorder, whether the disorder was permanent or temporary. Also, the applicant was ordered to be examined by a neuropsychiatrist.
18. The examination was finally held on 6 June 2013. The applicant was forcibly taken by the Court Police and was examined only by the neuropsychiatrist, whereas the psychologist was not present. Additionally, even though the order had been rendered day before the examination it was served on the applicant 5 days later, on 11 June 2013.
19. According to the medical evidence submitted by the applicant, namely the injury report (“prijava o povredi”) of the Mostar Emergency of 10 June 2013, the applicant was handcuffed and taken from his family house by four police officers, members of the Court Police, to the Neurology Department of the Mostar Hospital on 6 June 2013. The doctor established that the applicant had sustained three to four hematomas on the right upper arm, of 1x1 cm size. The doctor also noted the applicant’s statement that such an act of the Court Police caused him mental injuries (“psihičke povrede”) and anxiety.
20. On 18 June 2013 the Municipal Court rendered yet another order to the Court Police to take the applicant to the Mostar Hospital on 19 June 2013 for expert examination by psychologist. The Municipal Court again ordered the Court Police to be present at the applicant’s examination. The examination was held.
21. On 8 July 2013 the Municipal Court rendered a decision on suspension of criminal proceedings against the applicant and sent him again to the Social Center for further proceedings. In its reasoning the Municipal Court following expert examination by the psychiatrist and psychologist established that the applicant suffered from chronic psychological distress, currently at the progression phase. At the time of the examination the applicant was allegedly insane, whereas at the time of commission of offense the applicant’s sanity was significantly reduced, and the applicant was not capable of participating or following the criminal proceedings against him. In conclusion, the experts proposed mandatory psychiatric treatment of the applicant. Taking into consideration the experts’ findings, the Municipal Court established that the applicant was in a mental condition that he was not capable of participating in further criminal proceedings. The Municipal Court ordered ex officio that the applicant be presented with a defense lawyer.
22. On 12 July 2013 the applicant appealed, invoking Article 3 of the Convention. He repeated that the non-contentious proceedings were still pending. Further, he wrote the timeline of the court orders and examinations and stated that that the manner in which the examinations had been undertaken was unlawful. He challenged the method and purpose of expert examinations (the criminal offense had been committed in 2004, and he was examined in 2013). Finally, the applicant submitted that he suffered from mental anguish caused by the stress and difficulties caused by means other than bodily injury. The applicant concluded that the measures undertaken by the judiciary had reached a minimum threshold of cruelty, and that the mental anguish reached the minimum level of severity to fall within Article 3. The applicant’s court-appointed council also appealed.
23. On 30 April 2014 the Mostar Cantonal Court upheld the applicant’s appeal and quashed the decision of 8 July 2013. The Cantonal Court established that the applicant’s appeal was reasoned and indeed raised a question whether there were at all conditions for scheduling of the hearing and continuation of previously discontinued proceedings. The Cantonal Court determined that only the prosecution could propose continuation and termination of the proceedings, but that the impugned criminal proceedings had been discontinued in April 2011 and that there was no prosecution’s proposal for continuation in the meantime. The impugned criminal proceedings could be continued upon the prosecutor’s request, accompanied with appropriate evidence which would state that underlying reasons for discontinuation of the proceedings seized to exist, and upon which the court would decide. In that case the applicant would be able to appeal because the decision on continuation would be given against him. Given that there was no such request accompanied with evidence submitted by the prosecution, it was unnecessary to undertake the expert examination and on the basis of such an expertise render another decision on discontinuation when there was already a final decision on the discontinuation of the criminal proceedings against the applicant. Therefore, the Cantonal Court found that the applicant’s appeal was to be upheld and the said decision was quashed. However, the Cantonal Court did not deal with the Article 3 complaint.
4. The Constitutional Court proceedings
24. In the meantime, on 22 November 2013 the applicant complained to the Constitutional Court of BIH (“the Constitutional Court”) of the length of the proceedings. On 28 February 2013 the Constitutional Court established that the length of criminal proceedings had been excessive, ordered the Municipal Court to finish the proceedings urgently, and to inform of the measure taken to finalize the proceedings, within three months.
25. On 14 June 2013 the applicant lodged another constitutional appeal with the Constitutional Court, complaining under Article 3 of the Convention about his ill-treatment in the impugned criminal proceedings. The applicant argued that the Municipal Court’s repeated orders for him to be taken for expert examination by the Court Police, in particular the one in June 2013, violated Article 3 of the Convention.
26. The Constitutional Court dealt only with the notion of inhuman treatment (“neljudski tretman”). It noted that the applicant’s allegations concerned inhuman and degrading treatment (“ponižavajući i neljudski postupak”) in the course of forcible taking of the applicant for psychiatric examination, following repeated Municipal Court’s orders. However, the Constitutional Court concluded that the applicant had failed to prove that in this particular situation he had been exposed to inhuman and degrading treatment which reached the minimum level of severity to fall within Article 3 and rejected the applicant’s appeal as prima facie unfounded on 21 July 2015.
5. Termination of the criminal proceedings
27. On 18 October 2016 the Municipal Court rendered a decision on termination of the criminal proceedings against the applicant as the prosecution had dropped the charges against him.
B. Relevant domestic law
1. Criminal Code of FBiH (published in the Official Gazette of FBIH nos. 36/03, 37/03, 21/04, 69/04, 18/05, 42/10, 42/11, 59/14, 76/14. and 46/16)
Article 359
Attack against the official person on tasks of security
“(1) Whoever attacks or seriously threatens to attack an official person or a person assisting while performing tasks related to security of Federation or a duty of maintaining public order, shall be punished by imprisonment for a term between three months and three years.
(2) If an official person or a person assisting him has sustained light bodily injuries as a result of the criminal offence referred to in paragraph (1) of this Article or if the criminal offence referred to in paragraph (1) of this Article was committed at gunpoint, the perpetrator shall be punished by imprisonment for a term between six months and five years.“
2. Code of Criminal Proceedings of FBIH (published in the Official Gazette of FBIH nos. 35/03, 37/03, 56/03, 78/04, 28/05, 55/06, 27/07, 53/07, 9/09 and 12/10)
Article 221
Mental Disorder Suffered by the Suspect or Accused in the Course of the Proceedings
“If in the course of criminal proceedings it is ascertained that after the criminal offense was committed the accused has become mentally ill, a decision shall be issued to the effect of adjourning criminal proceedings. (Article 409).”
Article 409
Adjournment of the Procedure in Case of a Mental Illness
“1. If the accused becomes affected by such a mental illness after the commission of a criminal offense that he or she is unable to take part in the procedure, the Court shall, upon psychiatric forensic evaluation, adjourn the procedure and send the accused to the body responsible for issues of social care.
2. When the health condition of the accused has improved to the extent to which he or she is capable to take part in the procedure, the procedure shall continue.
3. In case criminal prosecution becomes time barred during the adjournment, the Panel referred to in Article 25 Paragraph (6) of this Code shall issue a decision on adjournment of proceedings.”
Article 410
Procedure in Case of Mental Incompetence
“1. If the suspect has committed a criminal offence in the state of mental incompetence and if legally prescribed conditions for ordering mandatory placement in a health institution for seriously mentally incapacitated persons exist, the Prosecutor shall propose in the indictment that the Court establishes that the suspect committed an unlawful act in a state of mental incompetence, and that he shall be issued a temporary order on mandatory placement in a health institution, with the health institution being informed about it.
2. Upon the reasoned proposal of the prosecutor, the detention of the suspect or accused under Paragraph 1 above may be ordered for reasons under Article 146 of this Law. When detention of the suspect is ordered or extended, he shall be confined in a health institution for a period that may last as long as the reasons under Article 146 exist, but not longer than time lines under Articles 149 and 151, paragraphs 2 and 3 of this Code, or until the temporary order on mandatory placement in a health institution has become final and binding.
3. If, after the main trial is conducted, the Court establishes that the accused committed an unlawful act in a state of mental incompetence, it shall pass a judgment stating that the accused committed the offence in a state of mental incompetence and shall issue a special decision ordering temporary and mandatory placement in a health institution for the duration of up to six (6) months. The judgment and the decision may be appealed, and such an appeal must be filed no later than 15 days of delivery of the decision.
4. Once the decision referred to in Paragraph 3 of this Article has become final and binding, the Prosecutor shall, in accordance with a special legislation regulating the protection of these persons, notify the competent court, for the purpose of initiating proceedings for mandatory placement of seriously mentally ill persons in a health institution. The medical documentation and final and binding decision on temporary mandatory placement in a health institution shall be submitted with this notification.
5. If, during the main trial, the evidence presented indicates that the accused committed the unlawful offence in a state of full mental competence, reduced, or significantly reduced mental competence, the Prosecutor shall abandon the proposal from Paragraph 1 of this Article, continue with the proceedings and change the indictment. In case of reduced or significantly reduced mental capacity, the Prosecutor may propose a security measure of mandatory psychiatric treatment, pronounced along with another criminal sanction.
6. Should the Court find that the accused was not in a state of mental incapacity at the time of committing the offence, and the Prosecutor has not abandoned the proposal referred to in Paragraph 1 of this Article, the Court shall issue a judgement dismissing the charges.
7. After the proposal referred to in Paragraph 1 of this Article has been filed, the suspect or accused must have his defense attorney.”
3. Law on Protection of Persons with Mental Disorder (published in the Official Gazette of FBIH, nos. 37/01, 40/02 i 52/11, 14/13, 20/13)
Article 22
“1. A person with severe mental disorders who seriously and directly threatens his/her own life or health or safety, or life or health or safety of others, can be placed in a health institution without consent, under the procedure for forced detention and forced accommodation prescribed by this Law.
2. A child, a minor or a person deprived of legal capacity may, for the reasons referred to in paragraph 1 of this Article, be placed in a health institution and without the consent of his legal representative under the procedure for forced detention or forced accommodation.”
Article 43
“In the course of criminal proceedings, the court shall make the perpetrator who committed the criminal offense in the state of insanity or significantly reduced sanity the security measure of compulsory psychiatric treatment and custody in a health institution, or the measure of compulsory psychiatric treatment at liberty, in accordance with the provisions of Articles 63 and 64 of the Criminal Code of the Federation of Bosnia and Herzegovina and articles from 475 to 480 of the Criminal Procedure Code (Official Gazette of FBIH, no. 43/98).”
4. Law on Non-contentious Proceedings (published in the Official Gazette of FBIH, nos. 2/98, 39/04, 73/05).
Article 45
“1. In the process of retention in a health institution, the court decides to retain a mentally ill person in a health institution when, due to the nature of the disease, it is necessary for that person to be restricted in the freedom of movement or contact with the outside world, as well as releasing when the reasons for retention of such a person seize to exist.
2. The procedure referred to in paragraph 1 of this Article must be completed as soon as possible, at the latest within seven days.”
COMPLAINTS
The applicant complains that he was subjected to a treatment contrary to Article 3 of the Convention under repeated and continuous unlawful court orders in the criminal proceedings against him during the period from late 2012 to mid-2014.
Specifically, the applicant separately complains of the ill-treatment to which he was exposed on 6 June 2013, which caused him mental anguish, stress and bodily injuries.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to treatment contrary to Article 3 and/or Article 8 of the Convention in the period from late 2012 to mid-2014 (see, mutatis mutandis, Fedotov v. Russia, no. 5140/02, 25 October 2005; and Bouyid v. Belgium [GC], no. 23380/09, ECHR 2015)?
2. Was the applicant subjected to treatment contrary to Article 3 and/or Article 8 of the Convention when taken by the Court Police on 6 June 2013 (see, mutatis mutandis, Bouyid, cited above)?
Full & Egal Universal Law Academy