FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 69875/01 by Demir SULEJMANOV against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Fifth Section), sitting on 18 September 2006 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr M. Villiger , judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 11 May 2001 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Demir Sulejmanov , was a citizen of the former Yugoslav Republic of Macedonia born in 1970 and resident in Štip. He was represented before the Court by the European Roma Rights Center and Mr Madjunarov, practising in Budapest and Štip, respectively. The Macedonian Government (“the Government”) are represented by their Agent, Mr s R. Lazareska-Gerovska .

On 6 December 2001 , the applicant di ed. His two sisters, Ms Demiran Sulimanova , born in 1968, and Remzie Durmiseva , born in 1977, both citizens of the former Yugoslav Republic of Macedonia and resident in Å tip, have applied to continue the application in his name.

A. The circumstances of the case

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

1. The incident

a) The applicant ’ s version of events

On 13 March 1998 , the applicant and his friend S.D., both of Roma ethnic origin, were stopped by two police officers near the village of Balvan on suspicion of having stolen two sheep. The police officers, without asking any questions, immediately started to beat him and his friend on their heads and bodies with their truncheons, which caused bleeding from the applicant ’ s mouth and nose. They were afterwards put in the police car and driven to the village of Ternaci , where the theft had allegedly occurred. One of the police officers called over the owner of the sheep in order to confront him with the applicant. The police officer started to swear at him and said: “All gypsies will remember me forever. I can sacrifice you all.” He was handcuffed and beaten by police officers with truncheons and by the owner of the sheep, who was using the branch of a tree.

Around 9:00 p.m. , the applicant and his friend were taken to the police station, where they were made to lie on the ground in front of the police entrance door and were beaten by five police officers. Once inside the police station they were tied to a bench in the hall and beaten up again. As he was terribly thirsty, he asked for some water, but the reply was “There is no water for gypsies!” They remained tied to a bench during the night until their release in the morning.

After his release on 14 March 1998 , the applicant went to the Emergency Aid Unit of the Å tip Hospital , where a plaster cast was put on his broken left arm. Due to lack of financial means to pay for the medical assistance, he used his cousin ’ s medical identity card, and therefore his name instead of the applicant ’ s name appeared in the hospital ’ s official medical record. In the hospital ’ s medical record, the injuries were qualified as “ fracturae ”.

b) The Government ’ s version of events

On 11 March 1998 , after 9 p.m. , the applicant and his two friends S.D. and D.R. rented a taxi in Å tip and went to the village of Tarinci with the intention to steal sheep from K.P. They told the taxi driver that they were going to collect two sheep from a relative and sell them in Vinica.

After arrival at the village, the applicant and his friends broke into the cellar of K.P. ’ s house, stole two sheep, put them in the taxi and then headed for Vinica. In Vinica, they went to the Roma quarter and tried to sell the sheep for 8,000 denars. They refused an offer of 6,000 denars and headed back towards Štip with the sheep in the taxi.

At about 11 p.m. , the police stopped the taxi in the vicinity of the village of Dolni Balvan in a routine check. Suspicion aroused by contradictory explanations given by the occupants of the car about the sheep, the police requested information on the radio as to any reported theft.

At about 10.50 p.m. , K.P. had reporte d the theft of his two sheep. A police van arrived and the taxi driver was instructed to follow it to Tarinci. At about 11.30 p.m. , they arrived at Tarinci. The applicant and his friends were instructed to unload the sheep. K.P. arrived on the scene and began to swear; he hit the applicant with a stick several times on the upper body and claimed that the applicant had stolen livestock and property from him before. The police ordered K.P. to stand back and prevented any further blows to the applicant.

At 11.45 p.m. , the police took the applicant and his friends back in the police van to Å tip. The applicant, his friends and the taxi driver were interviewed. The applicant complained of a pain in the arm and stated that K.P. had hit him with a stick. The attack was corroborated by the taxi driver.

At 2.00 a.m. on 12 March 1998 , the applicant and the others were released. The same day, K.P. lodged a criminal complaint with the police. On 8 April 1998 , the police lodged criminal charges with the Public Prosecutor ’ s Office against the applicant and his two friends for aggravated theft.

On 20 January 1999 , the applicant and his friends were convicted by the Court of First Instance of six counts of theft (verdict K.No. 237/98) including the one relevant for the present case. The applicant was sentenced to one year and one month in prison. On 30 March 1999 the Court of Appeal upheld the first-instance court decision and confirmed the sentence. The applicant had, meanwhile, been deta ined in prison from 17 November 1998 on the basis of prison terms for four other criminal verdicts for theft and aggravated thef t committed in 1997-1998 (K.No. 92/98 dated 16 May 1998, K.No. 9 5/988 dated 22 June 1998, K.No. 143/98 dated 18 September 1998 and K.No. 200/98 dated 10 November 1998). A further conviction followed on 14 May 1999 (K.No. 413/98) for another three aggravated thefts in 1997-1998, attracting a sentence of ten months. On 25 October 1999 , the Štip Court of First Instance merged the prison sentences into a term of three years, running from 17 November 1998 . However the applicant ’ s sentence was later reduced by six months due to an acute heart condition and he was released from prison on 16 May 2001 .

After the release, the Ministry of the Interior lodged two separate requests with the Å tip Court of First Instance for institution of the misdemeanour proceedings against the applicant, as he had taken part in two separate quarrels and fights.

2. The criminal investigation

On 3 November 1998 , the applicant , through his legal representative , filed a criminal complaint ( кривична пријава ) with the Å tip Basic Public Prosecutor ’ s Office ( Основно Јавно Обвинителство Штип ) against an unidentified police officer. In the complaint the applicant set out the factual account of the incident and alleged that the officer concerned had ill-treated him in the performance of his duty and re quested the Public Prosecutor ’ s Office to initiate proceedings as provided for by law. He did not mention any racial/ethnic comments. As evidence, the applicant offered his own testimony, that of his friend S.D., that of the doctor who examined him and put a plaster cast on his hand and proposed review of the entry book of the medical centre. He inter alia , stated:

“... around 8 a.m. a police officer who I don ’ t know, hit me with a truncheon breaking my left arm. The police took me to the Å tip Medical Centre where a plaster cast was put on which I had carried for two months ... “

On 28 May 1999, the applicant ’ s legal representative wrote a letter to the Å tip Public Prosecutor, stressing that the criminal complaint had been filed about seven months ago and that since then he had received no information as to whether any steps had been undertaken by the Public Prosecutor ’ s Office for the purposes of identifying the offenders and initiating a formal investigation.

As there was again no reply, on 25 October 1999 the applicant ’ s lawyer sent another letter to the Public Prosecutor, requesting to be provided with information about any action undertaken concerning the applicant ’ s complaint and revealing the identity of the offender(s).

In a letter addressed to the applicant on 11 November 1999 , the Å tip Public Prosecutor responded that his office had acted with regard to the criminal complaint at issue by officially requesting additional inquiries from the Ministry of the Interior. However, as of that date his office had received no information from the said ministry.

Since then, the applicant did not receive any information as to any action taken by the competent prosecuting authorities.

3. The civil proceedings

On or about 21 October 1998, the applicant filed a civil action before the Štip Court of First Instance ( Основен суд Штип ) against the respondent State and the Ministry of the Interior for compensation of non-pecuniary damage sustained as a result of police brutality inflicted on him.

On 5 March 2001 , the Štip Court of First Instance dismissed the applicant ’ s claim as ill-founded. It found insufficient evidence to establish that the applicant had been injured by the police officers on duty. It accepted the testimony given by the police officers who said that the applicant had been hit with a stick by K.P. , the owner of the sheep. It found that the applicant had not been beaten by the police officers and that no force had been inflicted on him while he was detained in the police station. The court, inter alia , stated:

“... when K.P. [the owner of the sheep] saw the persons who had stolen the sheep, he started to hit Demir Sulejmanov with a stick, as he had stolen sheep from him before. The officers on duty intervened to protect the co mplainant [the applicant] from K. P. without hitting him ... During the arrest, they (the applicant and his friend) did not resist and the police officers did not use any force ... the court established that the complainant was beaten by K.P. when the sheep were returned to him ... these witnesses [the police officers who were on duty in the police station when the applicant was taken into police custody] stated that they had questioned him and did not use force against him, as he did not resist ... during the questioning, he did not complain that he was injured or felt any pain. He only complai ned that he had been taken to K. P. who had hit him.”

The applicant asked the court to hear S.D., as eyewitness of the incident, the cousin who lent him his medical card and the doctor who had examined him. The court did not hear S.D. and the applicant ’ s cousin, as they had been imprisoned in “ Idrizovo ” and were therefore considered as “unreachable” for the court. It ruled that their examination would be irrelevant, as other evidence did not show that the police had inflicted the injuries. It accepted as possible that the applicant had visited a doctor with another person ’ s medical identity card, but that it had not been due to injuries inflicted by police officers.

On 17 September 2001 the Štip Court of Appeal dismissed the applicant ’ s appeal and upheld the lower court ’ s decision. The court found that the lower court had reasonably established that K.P. , the owner of the sheep, had inflicted the injuries on the applicant by hitting him with a stick. The police officers intervened to protect the applicant from further attacks. It found affirmed the lower court ’ s reasoning that the applicant was not beaten in the police station while in custody. It established that even if the lower court had heard the witnesses proposed by the applicant, they would not alter its findings as it reasonably found that the police officers who had arrested him did not use any force and did not inflict any injuries on him.

On or about 29 October 2001 the applicant requested the public prosecutor to lodge with the Supreme Court a request for the protection of legality ( барање за заштита на законитоста).

On 13 December 2001 , the public prosecutor notified the applicant that there had been no grounds for lodging that remedy with the Supreme Court.

B. Relevant domestic law

In accordance with Section 110 § 3 of the Constitution ( Устав на Република Македонија ), the Constitutional Court, is vested with the jurisdiction to safeguard freedoms and rights of individuals and citizens relating to the freedom of opinion, conscience, thought and public expression of thought; political association and activities; and the prohibition of discrimination of citizens on the grounds of sex, race, religion or national, social and political affiliation.

Section 51 of the Rules of Procedure of the Constitutional Court ( Деловник на Уставниот суд ) provides that a person who considers that any of his rights or freedoms, set forth in Section 110 of the Constitution, has been violated by an individual decision or action may seek redress before the Constitutional Court within two months from the adoption of the final individual decision or from the day of his having knowledge of the action taken, but no later than five years from the day of its occurrence.

Section 56 of the above-mentioned Rules stipulates that in its decision for the protection of rights and freedoms, the Constitutional Court shall establish if there has been a violation and, depending on the circumstances of the case, shall repeal the individual decision or prohibit the action causing the violation or it shall dismiss the request.

Section 82 provides that in its decision for the protection of rights and freedoms, the Constitutional Court shall determine the way of eliminating the consequences from applying the individual decision or action, with which those rights and freedoms had been violated.

Section 143 of the Criminal Code ( Кривичен законик ) prescribes that a person who, in the performance of his duty mistreats, intimidates, insults or generally treats another in a manner in which his human dignity or personality is humiliated, is to be punished by a term of imprisonment of six months to five years.

3. The Criminal Proceedings Act

Section 16 of the Criminal Proceedings Act ( Закон за кривичната постапка) provides that criminal proceedings must be instituted at the request of an authorised prosecutor. In cases involving offences subject to ex officio prosecution by the State or on an application by the injured party, the authorised prosecutor is the public prosecutor, whereas in cases involving offences subject to merely private charges, the authorised prosecutor is the private prosecutor. If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings, his role may be assumed by the injured party, acting as a subsidiary prosecutor under the conditions specified in the Act.

Section 17 sets forth the duty of the public prosecutor to proceed with a criminal prosecution if there is sufficient evidence that a crime subject to ex officio prosecution has been committed (the principle of legality).

In accordance with section 42, in discharging this statutory right and duty, the public prosecutor is empowered to take measures to detect crimes, to identify their perpetrators and to coordinate preliminary criminal inquiries; to request the opening of an investigation; to file and to defend an indictment or application for prosecution before the competent court; to lodge appeals against decisions which have not become final; and to make use of extraordinary judicial remedies against final court decisions.

Section 56 provides, inter alia , that where the public prosecutor finds that there are no grounds for prosecuting an offence subject to ex officio prosecution, he shall notify the injured party of his decision within eight days. He shall also inform the injured party that that party may conduct the prosecution himself.

Section 144(1) provides that the public prosecutor is to dismiss the criminal complaint if it transpires that the act reported is not a criminal offence subject to ex officio prosecution; that the statute of limitations has expired; that the offence has been amnestied or pardoned or that other circumstances exist which preclude prosecution; or that there is no reasonable suspicion that the person in question committed the offence. The public prosecutor shall notify the injured party of the dismissal of the complaint and of the grounds for the dismi ssal within eight days (section 56) and, if the complaint was filed by the Ministry of the Interior, he shall notify the Ministry accordingly.

Section 144(2) provides that if the public prosecutor is unable to establish, from the criminal complaint, whether or not the allegations set out in the complaint are credible, or if the information given in it is insufficient for him to take a decision on whether to request the opening of an investigation, or if he has merely learned of rumours that a crime has been committed, particularly where the perpetrator is unknown, he shall, if he cannot do this alone or through other authorities, request the Ministry of the Interior to gather the necessary information and to take other measures to investigate the offence and identify the offender. The public prosecutor may at any time require the Ministry of the Interior to inform him about the measures taken.

Section 148 provides, inter alia , that when the perpetrator of a crime is unknown, the public prosecutor may request that the Ministry of the Interior take certain investigative measures if, in view of the circumstances of the case, it would be advisable to take such measures even before the investigation has been formally opened.

Section 150 provides that an investigation is to be opened in respect of a particular person where a reasonable suspicion exists that he has committed an offence.

4. The Administrative Disputes Act

Section 67 of the Administrative Disputes Act ( Закон за управните спорови ) provides that the protection of human rights and freedoms guaranteed by the Constitution, in the event that they have been violated by the action of a civil servant within an administrative body, must be afforded throughout the procedure as set forth in sections 68 to 76 of the Act, unless other judicial protection is provided.

Section 68 provides that an application for protection from an illegal action should comprise the following elements: the action; the place and time at which it was taken; the organisation or the association, or the official, who took it; the evidence; and a request for the elimination of the obstacle or the restriction on the attainment of the rights or obligations concerned.

In accordance with section 69, the application may be submitted as long as the action is still taking place.

Section 73 provides that when the court considers the application well-founded, it shall prohibit the action from continuing. Otherwise, it shall dismiss the application. The court shall determine in a decision what is necessary to restore the legal situation, fixing a period of time for the execution of the decision, and shall determine the legal sanctions in the event of non-enforcement.

COMPLAINTS

1. The applicant complained under Article 3 of the Convention that he had been subjected to acts of police brutality inflicting on him great physical and mental suffering which amounted to torture or inhuman and/or degrading treatment. Furthermore, he alleged that he was a victim of a procedural violation of the above Article since the prosecuting authorities had failed to proceed with an effective official investigation capable of leading to the identification and punishment of the police officers responsible.

2. The applicant complained that he had no effective remedy against the failure of the national authorities to investigate effectively his allegations of ill-treatment in contravention of Article 13 of the Convention.

3. He finally complained, under Article 14 of the Convention, taken in conjunction with Articles 3 and 13 of the Convention, that the ill-treatment he suffered at the hands of the police and the refusal of the prosecuting authorities to investigate his case were due to his Roma origin. In particular, he alleged that his ethnic origin was known to the police officers who, while abusing him, made comments which disclosed ethnic/racial prejudice or even hatred on their part. He further submitted that his Article 14 claim should be evaluated within the context of well-documented and repeated failure of the national authorities to remedy instances of police brutality against Roma people and to provide redress for the discrimination suffered.

THE LAW

The applicant complained that he had been assaulted and ill-treated by police officers, that there had been no effective investigation into his complaints or effective remedy provided for the lack of investigation and that the ill-treatment and lack of investigation was motivated by his Roma origin, invoking Articles 3, 13 and 14 of the Convention which provide:

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A. The Government ’ s objections

1. The “status of victim”

In their observations received by the Court on 15 January 2003 , the Government submitted that there was no active or appropriately identified applicant before the Court. They pointed out t hat the applicant had died on 6 December 2001 and that his representatives had not informed the Court.

The Court notes that on 11 March 2003 , the applicant ’ s representatives informed the Court that his two sisters wished to continue the application and provided a letter of authority, dated 24 February 2003 , expressing that intention. They emphasised that the case involved an important issue which transcended both the deceased applicant personally and his sisters and that respect for human rights required its continued examination.

It recalls that in a number of cases in which an applicant died in the course of the proceedings it has taken into account the statements of the applicant ’ s heirs or of close family members expressing the wish to pursue the proceedings before the Court (see Karner v. Austria , no. 40016/98, § 22 , ECHR 2003 ‑ IX , with further references).

In the circumstances of the present case, the deceased applicant ’ s relatives have the standing of an applicant and only for the reason of convenience, Mr Sulejmanov will be refe rred to as “the applicant” (see Raimondo v. Italy , judgment of 22 February 1994 , Series A no. 281 ‑ A, § 2).

2. Exhaustion of domestic remedies

a. The parties ’ submissions

The Government submitted that the applicant had not exhausted domestic remedies in respect of his complaints of ill-treatment and discrimination. They pointed out that the use of force was regulated and supervised by the Ministry of the Interior. Rules provided for investigation and disciplinary sanctions against officers if allegations were upheld, as well as making provision for compensation to the injured party . The applicant did not however make any written or oral complaint while he was in the police station, to the chief of the police station or directly to the Ministry of the Interior. The police chief who was authorised in the first instance to assess the alleged breach of the law or abuse by the police officers was accordingly given no opportunity to do so in a timely manner, the complaint only being brought to his attention some eight months later.

The Government also argued that as the national legal system safeguarded the rights under Article 3 of the Convention, the applicant should have requested protection of his legal rights before the Supreme Court by instituting contentious administrative proceedings, challenging the action taken by a civil servant (police officers) by which that right had been allegedly violated.

According to the Government, the prohibition of discrimination was also safeguarded within the Constitution and if the applicant had genuinely been insulted or mistreated due to his Roma identity, he could have claimed the protection of his constitutionally protected rights before the Constitutional Court . They also pointed out that the applicant raised an issue of discrimination for the first time in his application to this Court.

The applicant submitted that he had filed both a criminal complaint and a civil action for damages and that as a result the relevant authorities were made aware of the incident in question. The police and Ministry of the Interior however chose to do nothing. According to Strasbourg case-law it was clear that where several remedies were available the victim was not required to pursue more than one. In any event, he pointed out that the internal police disciplinary sanctions, involving mere fines, suspensions or dismissal, did not amount to an effective remedy for the purposes of Articles 3 or 13 and could not replace the total absence of an adequate criminal investigation.

The applicant further contended that there had been no effective remedy provided by the possibility of applying to the Supreme Court as the relevant provision, section 67, referring to an action of a civil servant, did not cover police brutality or prosecutorial inaction and did not apply where alternative court protection was provided. Nor could Article 110 of the Constitution have provided the applicant with redress for discrimination as it applied to violations from a specific act or decision and was not applicable to incidents of prosecutorial or police inaction. He argued that it was not relevant that he had not raised his complaints of discrimination in his own criminal complaint, pointing out that it would have served no useful purpose given the lack of investigation (see, mutatis mutandis , A.V. v. Bulgaria , 18 May 1999, ECHR 1999-V).

b. The Court ’ s assessment

1. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey , judgment of 18 December 19 96, ECHR 1996-VI, §§ 51-52, and Akdivar and Others v. Turkey, judg ment of 16 September 1996, ECHR 1996-IV, §§ 65-67).

The Court emphasises that the application of the exhaustion rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights and that it must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Aksoy , cited above, §§ 53 and 54 and Akdivar and Others, cited above, § 69).

2. Concerning the alleged ill-treatment, the Court would note that the possibility of initiating a disciplinary or internal inquiry cannot generally be regarded as an effective remedy in this context. Turning to the present case, in so far as it involves complaint to the police, institutions hierarchically linked to the alleged perpetrators lack the necessary independence.

While the Government have also referred to the possibility of an action in the Supreme Court to assert the applicant ’ s rights under Article 3, the Court does not consider that in the circumstances of this case it has been shown that this was the remedy which the applicant should have used in preference to others or that he was unreasonable in choosing the criminal and civil avenues of redress. The circumstances under which such an action could be used are an important element in assessing the effectiveness of the action in the instant case. According to national law, such an action can be used only where the law does not provide for another means of judicial protection and only while the impugned measure is taking place. In the case of alleged ill-treatment by a person in the performance of his or her duties, national law provides for the possibility of instituting criminal proceedings and of bringing a civil action for damages. Therefore, it is not evident that the applicant could have availed himself of the possibility of bringing an administrative dispute before the Supreme Court as he had at his disposal an alternative court remedy. Moreover, it appears that the proceedings before the Supreme Court are geared to providing protection against ongoing unlawful measures and preventing any repetition , and this would not have been apt to remedy the applicant ’ s situation.

The Court recalls that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no mo re likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 33 , ECHR 1999 ‑ III ).

The applicant in this case made a criminal complaint to the public prosecutor, initiating a procedure capable of leading to the identification and prosecution of the alleged perpetrators of the assaults. As the public prosecutor did not formally reject the applicant ’ s criminal complaint, the applicant could not take over the prosecution as a subsidiary prosecutor. Moreover, criminal proceedings could not be instituted where the perpetrator was unknown, as was the case regarding the applicant ’ s criminal complaint. In addition, the applicant also lodged a civil action to obtain damages for the injury and suffering caused. He therefore brought the alleged police brutality to the attention of the authorities, placing them under a duty to carry out an appropriate investigation, and instituted a court procedure able to establish the facts, attribute responsibility and award monetary redress. In the normal course of events this would be regarded as fulfilling the requirements of Article 35 § 1 of the Convention in respect of his complaints under Article 3 and it would not be necessary to institute any other procedures (see, mutatis mutandis , Assenov and Others v. Bulgaria , judgment of 28 October 1998 , Reports of Judgments and Decisions 1998 ‑ VIII, p. 3286 , § 86) .

This part of the application cannot, therefore, be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 of the Convention. Accordingly, the Government ’ s objection must be rejected.

3. Concerning the applicant ’ s complaint of discrimination, the Court notes that, as submitted by the Government, it was not raised on a domestic level at all. The applicant argued that this would have been pointless given that no real investigation was ever carried out into the incident.

The Court observes that the applicant had indeed failed to mention the alleged racial comments made by the police officers in his criminal complaint. He also failed to raise the issue of being discriminated against in the civil proceedings for damages.

Moreover, the Court notes that the Constitutional Court is vested with the jurisdiction to protect the freedoms and rights of the individual and citizen relating to the prohibition of discrimination and to decide upon such requests in substance. The Constitutional Court is required to provide redress if it finds that a person has been discriminated against by an individual decision or action. Therefore, it appears that a request for the protection of freedoms and rights ( б арање за заштита на слободите и правата) on the grounds of prohibition of discrimination provided an avenue for obtaining redress for his allegations of racial or ethnic discrimination and that the applicant should have exhausted this remedy before he raised complaints on the issue before this Court.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. The substance of the case

1. The parties ’ submissions

The Government submitted that the applicant ’ s allegations were not credible or substantiated. The statements taken by the police and the official records contradicted the applicant ’ s version of events, including the date of the incident. Nor were his claims found to be substantiated by the courts. They argued that he had not had a proper medical certificate indicating the alleged injuries, but just an excerpt from the entry book of the medical centre, which had been made three days after the event complained of. Moreover, that entry was made in the name of another person. His allegations of an all-night beating would in any event have left more extensive injuries than the allegedly broken arm. They also pointed out that he had not been a decent citizen persecuted by the police as alleged, but in fact an offender with an extensive criminal record. As regards the investigation into his allegations, they submitted that he himself had rendered it ineffective by lodging his criminal complaint some eight months after the events. If he had used the possibilities open to him in a timely fashion, there would have been some possibility of useful investigation. The investigation was still pending, as the public prosecutor had not taken a decision to reject the criminal charges brought by the applicant.

The applicant submitted that he had been victim of police brutality inflicting on him severe physical and mental suffering amounting to torture or to inhuman and degrading treatment or punishment. As he had suffered physical abuse while in police custody, it was for the Government to show that their officials were not responsible for his injuries. They had not done so and had failed to do anything to provide the applicant with redress. They had not interviewed S.D., who was the only independent eye-witness of the incident, the cousin who lent the applicant his medical card or the doctor who examined him. His accounts of ill-treatment had been consistent throughout and the police assertion that any injury was caused by the owner of the sheep was implausible. The applicant always asserted that he had suffered extensive injuries, his broken arm only being the most severe. The courts when considering the applicant ’ s claims simply ignored the evidence and relied on police evidence and reports, which were clearly cursory, inconsistent and in contradiction with one another.

The applicant also referred to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment (CPT/ Inf (2003)3), which indicated that physical ill-treatment of persons in police custody was a serious problem and expressed doubt that judges or prosecutors conducted effectiv e investigations where such ill ‑ treatment came to their attention. This indicated a deep-rooted and widespread practice of abuse in police custody and impunity with regard to officers who perpetrated such acts. It was for the Government to show what they had done in response to the scale and seriousness of the problem at issue. In the present case, they had clearly done nothing.

2. The Court ’ s assessment

The Court considers, in the light of the parties ’ submissions, that the complaints under Articles 3 and 13 raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court therefore concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaints under Articles 3 and 13 of the Convention;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President