FIFTH SECTION

DECISION

Application no. 44993/18 Milorad MARTINOVIĆ against Montenegro

The European Court of Human Rights (Fifth Section), sitting on 11 March 2021 as a Committee composed of:

Mārtiņš Mits , President, Jovan Ilievski , Ivana Jelić , judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 15 September 2018,

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

1 . The applicant, Mr Milorad Martinović , is a Montenegrin national, who was born in 1957 and lives in Podgorica. He was represented before the Court by Ms T. Gorjanc-Prelević , the executive director of the non ‑ governmental organisation Human Rights Action.

2 . The Montenegrin Government (“the Government”) were represented by their Agent, Ms. V. Pavli č i ć .

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

4 . On 24 October 2015 the applicant was beaten on the street by between fifteen and twenty policemen. He was inflicted two serious bodily injuries, and had a number of cuts, scratches and haematomas all over his body. The next day the State prosecutor ’ s office commenced investigation.

5 . On 10 November 2015 two policemen, X and Y, confessed to having beaten the applicant.

6 . On 30 December 2015 the applicant and the State reached an out ‑ of ‑ court settlement. The applicant obtained thereby 130,000 euros (EUR) for all actual and future pecuniary and non-pecuniary damage arising from the incident. The settlement specified that the parties thereby resolved “the entire disputable relation arising from the incident”.

7 . On 23 January 2017 the Court of First Instance in Podgorica found the commander of the relevant police unit guilty of aiding a perpetrator following the commission of a crime, and sentenced him to five months in prison.

8 . On 25 July 2017 the Constitutional Court found a violation of both the substantive and procedural aspects of Article 3 of the Convention in the applicant ’ s case.

9 . On 21 October 2019, after a remittal, the Court of First Instance ( Osnovni sud ) in Podgorica found X and Y guilty of torture and inflicting serious bodily injury, and sentenced each of them to one year and five months in prison. Their appeal is currently pending.

10 . The relevant domestic law is set out in Siništaj and Others v. Montenegro , nos. 1451/10 and 2 others, §§ 60 and 65, 24 November 2015, and, mutatis mutandis , Milićević v. Montenegro , no. 27821/16 , § 23, 6 November 2018.

COMPLAINTS

11 . The applicant complained under Articles 3 and 13 of the Convention about the police torture on 24 October 2015 and a lack of an effective investigation, and a lack of an effective domestic remedy in that regard.

THE LAW

12 . The Government submitted that the applicant had lost his victim status. The applicant maintained that he was still a victim, that out-of-court settlement had not provided redress for ineffective investigation, nor could such a violation be remedied only by an award of compensation.

13 . The relevant principles as regards the victim status in the context of Article 3 complaints are set out in, for example, Jevtović v. Serbia , no. 29896/14, § 61, 3 December 2019.

14 . Turning to the present case, the Court firstly notes that the Constitutional Court explicitly found a violation of both substantive and procedural aspect of Article 3 in the applicant ’ s case – thereby expressly acknowledging the breach complained of and, effectively, satisfying the first condition laid down in the Court ’ s case law. Secondly, the applicant reached a settlement with the State and thereby obtained a compensation of EUR 130,000 for all the existing and future damage related to the incident, both pecuniary and non-pecuniary, which satisfies the second condition. Thirdly and finally, the conducted investigation resulted in: (a) identifying two direct perpetrators, X and Y, who are currently being prosecuted for torture and inflicting serious bodily injuries, and (b) prosecuting and sentencing the commander of the relevant police unit for aiding a perpetrator following the commission of a crime.

15 . In such circumstances, the Court considers that the applicant can no longer claim to be a “victim” within the meaning of Article 34 of the Convention and that his complaint under Article 3 of the Convention must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

16 . Having regard to the reasoning and conclusion set out above, it cannot be said that the applicant has an “arguable claim” under Article 13 of the Convention (see Osmayev v. Ukraine ( dec. ), no. 50609/12, § 57, 30 June 2015). It follows that this complaint is manifestly ill-founded and must also be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 April 2021 .

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Martina Keller Mārtiņš Mits Deputy Registrar President