SECOND SECTION

DECISION

Application no. 31169/08 by Mila PETKOVIĆ against Serbia

The European Court of Human Rights (Second Section), sitting on 6 December 2011 as a C hamber composed of:

Françoise Tulkens , President, Danutė Jočienė , Işıl Karakaş , Guido Raimondi , Paulo Pinto de Albuquerque , Helen Keller , judges, Mirjana Lazarova Trajkovska , ad hoc judge, and Françoise Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 17 June 2008,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

PROCEDURE

1 . The applicant, Ms Mila Petković , is a Serbian national who was born in 1952 and lives in Belgrade . She was represented before the Court by Belgrade Centre for Human Rights, a non-governmental organisation based in Serbia . The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić .

THE FACTS

2 . The facts of the case, as submitted by the parties , may be summarised as follows.

1. The death of the applicant ’ s son

3 . On 17 July 2005, at around 2.00 p.m., the applicant ’ s son (hereinafter “M.P.”), who was serving his prison sentence in the Požarevac Penitentiary (elsewhere also referred to as the Požarevac-Zabela Correctional Institution) , suddenly felt very sick. He had a fever and began shaking, hallucinating and vomiting. His fellow inmates immediately informed the prison guards. They stressed that M.P. ’ s condition was probably caused by a drugs overdose, and requested urgent medical assistance.

4 . The prison guards ultimately responded to the situation. They did so by using force against M.P., whose behaviour they subsequently described as aggressive. M.P. was thus struck with truncheons, hand-cuffed to a cell door, and, at one point, even slammed against the wall. Finally, he was transferred to another wing of the Požarevac Penitentiary (Pavilion VII), whilst his medical con dition continued to deteriorate.

5 . At around 4.50 p.m. M.P. was taken to the Požarevac Health Centre (PHC), a civilian institution located outside of the penitentiary where he was diagnosed as having an “altered personality” and provided with some treatment, including an electrocardiogram. However, M.P. received no medical assistance aimed at his detoxification. Instead, the PHC recommended that M.P. be taken to the Belgrade Prison Hospital (BPH), approximately 80 kilometres from Požarevac .

6 . At around 6.30 p.m., M.P. was then taken back to Pavilion VII of the Požarevac Penitentiary and placed in a cell with another two inmates. No medical or other supervision was secured.

7 . At around 8.00 p.m. M.P. ’ s health deteriorated even further, and he was again taken to the PHC, where another electrocardiogram was performed. The PHC reaffirmed that M.P. should be taken for further treatment to the BPH.

8 . Given that his condition worsened while en route to Belgrade , the prison staff escorting M.P. decided to take him to the emergency unit of the Serbian Clinical Centre. No medical personnel were present in the vehicle.

9 . Upon admission M.P. was unconscious and was no longer breathing. Reanimation was attempted, but to no avail. On 9.30 p.m. M.P. was pronounced dead.

10 . M.P. ’ s family was informed of his death on 18 July 2005, at around 5.00 p.m.

2. The internal review procedure

11 . Following the death of M.P. and as part of an internal review procedure, inter alia , several prison guards and inmates were questioned. One of the inmates, heard in the capacity of an eyewitness (“witness A”), signed a statement dated 1 August 2005 indicating that M.P., despite his very poor medical condition, had been gratuitously beaten by the prison guards. He did not, however, provide a more detailed description of the event, noting that for “[personal] safety reasons” he could not afford to do so. The prison guards stated that M.P. had been aggressive and had had to be restrained.

3. The autopsy and the events immediately thereafter

12 . The autopsy was performed on 18 August 2005. It concluded that the death of M.P. was caused by hallucinogenic drugs, containing morphine. No further details regarding the exact kind and quantity of drugs were included. Extensive bodily injuries, including lacerations and hematoma all over the deceased ’ s body, were listed, but their cause and connection, if any, to the fatal outcome remained unaddressed.

13 . On 16 January 2006 the police provided the District Public Prosecutor ’ s Office in Požarevac (“the DPPO”) with several, mutually contradictory statements given by prison guards and M.P. ’ s fellow inmates concerning what had transpired on 17 July 2005.

14 . On 2 March 2006 and without seeking any additional clarification, the DPPO decided that there were no grounds for the institution of a formal criminal investigation. The applicant was never served with this decision.

4. The criminal proceedings brought at the applicant ’ s initiative

15 . On 14 July 2006 the applicant filed a criminal complaint with the DPPO. The complaint was filed against five individuals identified by name and surname (i.e. the prison guards at issue, as well as the Head of Security and the Governor of the penitentiary), except for the doctor from the PHC whose identity was not known to the applicant.

16 . On 1 August 2006 the DPPO rejected the criminal complaint. It concluded that the death in question had been drugs-related, that the prison guards had used adequate force in order to restrain M.P. who had been acting aggressively, and that adequate medical treatment had been provided.

17 . On 14 August 2006 the applicant attempted to take over the prosecution of the case in the capacity of a “subsidiary prosecutor”. She did so by filing a request for the institution of a formal judicial investigation with the investigating judge of the District Court in Požarevac .

18 . The investigating judge, however, refused to open the investigation sought by the applicant.

19 . On 25 October 2006 the three-judge panel of the District Court in Požarevac upheld this decision.

20 . On 18 May 2007 the Belgrade-based Institute for Forensic Medicine provided the District Court in Požarevac with its own expert report. The medical team reaffirmed that M.P. had died as a result of drugs-related complications. It further noted the extensive lacerations and hematoma all over his body and explained that they were caused by a “blunt mechanical instrument”. These injuries, however, were deemed unrelated to the death of M.P.

21 . Following a remittal, on 14 September 2007 the three-judge panel of the District Court in Požarevac essentially reaffirmed its decision of 25 October 2006 and referred to the findings of the expert report of 18 May 2007.

22 . On 12 October 2007 the applicant appealed against this decision, but on 7 November 2007 the Supreme Court rejected her appeal. The applicant received this decision on 17 December 2007.

23 . On an unspecified date thereafter the above case file was transferred to the Municipal Court in Požarevac , it being competent ratione materiae for the crimes of criminal abandonment and official malfeasance.

24 . The investigating judge of the Municipal Court in Požarevac , however, refused to open the investigation sought by the applicant.

25 . On 24 July 2008 the three-judge panel of the District Court in Požarevac upheld this decision.

26 . Following a remittal, on 2 August 2010 the three-judge panel of the Požarevac C ourt of F irst I nstance again refused to open the investigation. It stated that numerous witnesses had been heard, and concluded that the prison authorities had acted fully in accordance with their duties. There was thus no evidence of criminal abandonment and/or official malfeasance. Witness A referred to by the applicant, however, was not heard.

27 . On 4 October 2010 the applicant filed an appeal against this decision.

5. The civil proceedings

28 . On 18 April 2007 the applicant and her other son, M.P. ’ s brother, jointly filed a civil claim with the First Court in Belgrade . They sought compensation for the pecuniary and non-pecuniary damage suffered as a result of M.P. ’ s death, and repeated the applicant ’ s assertions from the criminal proceedings. The claim was directed against the Republic of Serbia and the PHC, and was supplemented, inter alia , with the statement given by witness A (see paragraph 11 above).

29 . Between 30 October 2007 and 20 October 2010 fifteen separate hearings were held or adjourned.

30 . Following the settlement with the Government (see paragraph 35 below), on 8 May 2011 the applicant and her son withdrew their civil claim.

COMPLAINTS

31 . The applicant complained, under Articles 2 and 3 of the Convention, about the respondent State ’ s failure to provide her son with adequate and timely medical treatment, resulting in his death, as well as to carry out an effective official investigation in this respect.

32 . Under Article 3 of the Convention, the applicant further complained about the physical abuse suffered by her son at the hands of prison staff, the absence of an effective official investigation in this regard, and the failure of the prison authorities to prevent the proliferation and usage of narcotics inside their institution.

33 . Lastly, under Article 13 taken together with Articles 2 and 3 of the Convention, the applicant complained that: ( i ) at the relevant time, the Serbian Criminal Code had not recognised torture as a separate criminal offence; (ii) the competent public prosecutor had refused to launch an investigation into the applicant ’ s abuse/death ex officio ; and (iii) the applicant therefore had had no choice but to personally take over the prosecution of the case in the capacity of a subsidiary prosecutor, notwithstanding the fact that she had never had access to the crucial information in possession of various Government bodies and/or State-run institutions.

THE LAW

34 . The Court notes that, after the Government had been informed of the application on 17 February 2011 (Rule 54 § 2 (b) of the Rules of Court), they offered to the applicant to settle the case. Thus, on 20 April 2011 the Government and the applicant signed a settlement, which in its relevant parts reads as follows:

“1. The Republic of Serbia , represented by Dr Slavoljub Carić , Agent of the Republic of Serbia before the European Court of Human Rights, recognizes that the Republic of Serbia had breached Articles 2, 3 and 13 of the European Convention of Human Rights and Fundamental Freedoms, in the case of the death of [M.P.].

[ ... ]

3. The Republic of Serbia, with an apology for the death of [M.P.] undertakes to pay to the account of Ms Mila Petković [ ... ] the amount of 40,000 euros , converted to dinars, within reasonable time from the day of this settlement, which amount will cover for any pecuniary and non-pecuniary damage as well as costs of proceedings before domestic and international courts.

4. The Republic of Serbia undertakes to conduct an efficient and meaningful investigation into the circumstances of [M.P.] ’ s death, within the investigation no. Ki 49/09-49 , before the Municipal Court in Požarevac .

5. The applicant shall, after the payment of 40,000 euros converted to dinars [ ... ] give up any claims against the Republic of Serbia on any grounds raised in the application no. 31169/08 submitted to the European Court of Human Rights, as well as any claim in the civil proceedings no. P 68290/10 which is pending before the First Court of First Instance in Belgrade .

6. The applicant undertakes to withdraw the application submitted to the European Court of Human Rights under no. 31169/08, after the payment is made, as she finds that she no longer has victim status in relation to the right to a fair hearing within the meaning of Article 34 of the European Convention on the Protection of Human Rights and Fundamental Freedoms. Furthermore, she undertakes to withdraw her claim in the civil proceedings no. P 68290/10 which is pending before the First Court of First Instance in Belgrade .”

35 . On 13 May 2011 the amount of 40,000 euros was paid to the applicant ’ s account. On 18 May the applicant withdrew her claim before the First Court of First Instance in Belgrade . On even date the applicant filed a submission to the Court, seeking to withdraw her application before the Court.

36 . The Court reiterates that Article 37 of the Convention in the relevant part reads as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved;

...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

37 . The Court takes note that following the settlement reached between the parties the matter has been resolved and that the applicant does not wish to pursue his application (Article 37 § 1 (a) and (b) of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention ).

38 . In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Françoise Elens - Passos Françoise Tulkens Deputy Registrar President