Communicated on 23 September 2016

THIRD SECTION

Application no. 1128/16 Fabian GJINI against Serbia lodged on 12 December 2015

STATEMENT OF FACTS

1. The applicant, Mr Fabian Gjini, a Croatian citizen, of Albanian nationality, was born in 1972 and lives in Crikvenica, Croatia. He is represented before the Court by Mr Nebojša Crnogorac, a lawyer practising in Belgrade, Serbia.

A. The circumstances of the case

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

1. Applicant ’ s arrest

3. On 22 August 2008 the applicant was arrested by Serbian police under suspicion that he attempted to pay a toll at the “Tovarnik” border crossing (a border crossing between Serbia and Croatia) with a 10 euros counterfeit banknote. Later expertise showed that the said 10 euros banknote was, actually, a genuine one.

4. Upon his arrest, the applicant was taken before an investigative judge, who demanded payment of 6,000 euros as a guarantee that he would be available for as long as the investigation against him was ongoing. Given that the applicant was unable to post a bail, the investigative judge ordered his detention.

5. The applicant was detained in Sremska Mitrovica Prison, where he spent thirty-one days.

2. The alleged ill-treatment of the applicant by his cellmates

6. Initially, the applicant was placed in a four-bed cell which already housed four other inmates. Because of the lack of space, the applicant had no proper bed and had to sleep on the floor, on a sheet of foam material.

7. As alleged by the applicant, he was systematically ill-treated and humiliated from the very start. Initially, the applicant ’ s cellmates forced him to wash the floor. After he had washed it, they kicked him for failing to wash it properly. To do a better cleaning, the applicant ’ s cellmates poured the water with detergent over him.

8. They also maltreated the applicant in other ways. One night they put him in the toilet and forced him to keep his feet in the cold water for whole night. As the consequence, next morning the skin on the applicant ’ s feet separated and open wounds appeared.

9. The applicant ’ s cellmates also declared the applicant to be a spy. They said he had been placed in their cell to watch them. The situation worsened after the applicant had informed his inmates that he came from the Croatian coast. Because of that, they filled a basket with water and put the applicant ’ s head in it to see how well he could “dive”.

10. On another occasion, the applicant ’ s cellmates gave him a wet towel and forced him to box with another prisoner. After the applicant hit the other prisoner, his inmates jumped on him, punched and kicked him, severely beat him up, and cursed his Croatian mother because he dared to hit a Serb.

11. They made him sing Serb nationalistic songs ( četničke pesme ). After he said he did not know any, they taught him some and he sang them for several nights. He might in addition have been made to sing Croat nationalistic songs ( ustaške pesme ) as well, but he could not remember.

12. According to the applicant, his cellmates also raped him. Although he did not actually remember of being raped, he remembered that one day he was given a glass of water and felt dizzy after drinking it. Somewhat later he felt unable to walk and quickly lost consciousness. Next morning, the applicant claimed he felt a pain in the anus and saw some blood in his faeces. On that day his cellmates shaved him and shaved his eyebrows. Later, he discovered that shaved eyebrows were sign that he became someone ’ s ‘ girl ’ ( curica ). Being a ‘ girl ’ meant that that person had been sodomised.

13. As the applicant alleged, all the events happened during the watch of one of the prison guards who was the school friend of one of the applicant ’ s cellmates. Also, during the applicant ’ s walks in the prison yard, he saw other prison guards laughing at him.

14. A few days later, the applicant ’ s lawyer noticed changes in the applicant ’ s behaviour and felt that something was wrong with the applicant. The applicant did not say anything to the lawyer. Because of that, the applicant ’ s lawyer urged the Prison authorities to move the applicant to another cell. After this was done, the applicant was no longer tortured or maltreated.

15. The applicant was released from detention on 22 September 2008.

16. On 30 September 2008, the criminal proceedings against him were discontinued by the prosecution authorities.

3. Proceedings before domestic authorities

17. On 29 October 2008 the applicant submitted a friendly settlement proposal ( predlog za vansudsko poravnanje ) to the Ministry of Justice of the Republic of Serbia. This friendly settlement proposal concerned the applicant ’ s illegal and unjustifiable detention.

18. On 1 September 2009 the applicant amended the said friendly settlement proposal by adding the request for non-pecuniary damage for the ill-treatment he had suffered during the period of detention.

19. There is no evidence that the Ministry of Justice replied to the applicant ’ s friendly settlement proposals.

20. On 26 December 2009 the applicant lodged a civil complaint with the First Basic Court in Belgrade. He requested a compensation for the illegal detention and non-pecuniary damage for his sufferings during the time in detention.

21. On 9 November 2011 the First Basic Court in Belgrade accepted the applicant ’ s complaint concerning the request for compensation for illegal detention, but rejected his request in respect of non-pecuniary for the ill-treatment in a state-owned institution. Regardless of the fact that during the proceedings several witnesses and neuropsychiatrist testified about the events in prison or the impact said events had on the applicant, the Court rejected the applicant ’ s claim for compensation since the applicant had “no medical certificate proving the injuries. Medical expert witnesses testified on the basis of the plaintiff ’ s statement. Testimonies of other witnesses are based on what plaintiff told them. The plaintiff, if injured at all, should have gone to see the doctor in the detention unit, he ought to have visited the doctor who would have confirmed the injuries or he should have said something in order to be transferred to another cell and protected. The plaintiff has no medical certificate concerning any injuries.”

22. On 17 October 2012 the Appellate court in Belgrade upheld the First Basic Court ’ s decision as regards the compensation for the illegal detention, but quashed its decision in part in which the compensation of non-pecuniary damage caused by the applicant ’ s ill-treatment by his inmates was rejected. The Appellate Court quashed the said decision on the basis that the Basic Court had failed properly to assess the evidence. According to the Appellate Court ’ s judgment the First Basic Court “failed to properly assess the evidence, as prescribed in Article 8 of the Law on Civil Procedure, according to which a court decides according to its free conviction, but on the basis of a conscientious and meticulous assessment of each particular piece and all the evidence together, as well as to the outcome of the whole proceedings. Given that such an assessment was not conducted in this particular case, the findings of the first instance court, that it has not be proven that the plaintiff was ill-treated and molested by other inmates during his time in detention and that that caused various types of non-pecuniary damage which caused additional suffering to the plaintiff and for which the defendant would have been responsible as prescribed in article 172 of the Obligations Act ( Zakon o obligacionim odnosima ), cannot be accepted unreservedly.” For all those reasons, the case was returned to the First Basic Court for reconsideration.

23. On 10 May 2013 the First Basic Court awarded the applicant 200 000 dinars in respect of non-pecuniary damage for the loss of 10% of his general vital activity ( umanjenje op šte životne aktivnosti ). It awarded the said amount on the basis of the testimony of a medical expert witness. However, it rejected the claim in respect of the applicant ’ s physical sufferings because, in the Court ’ s view, they constituted not grievous but slight bodily harm and for slight bodily harm no compensation could be given. Also, the Court refused to award non-pecuniary damages for the plaintiff ’ s fear.

24. On 10 December 2013 the Appellate Court in Belgrade upheld the decision, confirmed that the applicant had suffered an acute stress disorder as a result of being detained and harassed by other inmates, which, in general, had led to posttraumatic stress and loss of applicant ’ s general vital activity. This Court awarded the applicant an additional 50 000 dinars for the fear he had suffered.

25. On 9 June 2015 the Constitutional Court rejected the applicant ’ s constitutional appeal as of a fourth-instance nature.

B. Relevant domestic law

1. The Obligations Act (Zakon o obligacionim odnosima, published in Official Gazette of the Socialist Federal Republic Yugoslavia" nos. 29/78, 39/85, 45/89 – decision of the Constitutional Court of Yugoslavia and 57/89, Official Gazette of the Federal Republic of Yugoslavia no. 31/93 and Official Gazette of Serbia and Montenegro no. 1/2003 – Constitutional Charter)

26. The relevant Article reads as follows:

Article 172 (Liability of a Legal Person for Injury or Loss Caused by its Body)

“ (1) A legal person (corporate body) shall be liable for damage caused by its members or branches to a third person in performing or in connection to performing its functions.

(2) Unless otherwise specified by the law for specific cases, a legal person shall be entitled to recover against a person being at fault for injury or loss inflicted willfully or by gross negligence.

(3) That right shall expire six months after the payment of damages. ”

2. The Criminal Code (Krivični zakonik, published in Official Gazette of the Republic of Serbia -OG RS- no. 85/05, amendments published in Official Gazette nos. 88/05, 107/05, 72/09, 111/09 and 121/2012)

The relevant Article reads as follows:

Article 137 (Ill-treatment and Torture)

“1. Whoever ill-treats another or treats such person in humiliating and degrading manner shall be punished with imprisonment of up to one year.

2. Whoever causes severe pain or suffering to another for such purposes as obtaining from him or a third person a confession, a statement or information, or intimidating or unlawfully punishing him or a third person, or for any reason based on discrimination, shall be punished with imprisonment from six months to five years.

3. The Code of Criminal Procedure (Zakon o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – no. 70 /01, amendments published in OG FRY no. 68/02 and in OG RS nos. 58/04, 85/05, 115/05, 49/07, 20/09, 72/09 and 76/10)

27. The relevant Article reads as follows:

Article 20

“ Unless provided for otherwise by this Code, the public prosecutor is required to institute criminal prosecution where there is reasonable suspicion that a certain person has committed a criminal offence prosecutable ex officio. ”

Article 46

“ (1) The basic right and the basic duty of the public prosecutor is to prosecute criminal offences.

(2) In the case of criminal offences prosecutable ex officio, the public prosecutor shall be empowered to:

1) conduct pre-trial proceedings in criminal proceedings;

2) request initiation of investigations and direct the course of the pre-trial proceedings in accordance with this Code;

3) to file indictments and represent the prosecution, i.e., the motion to indict, before the competent court;

4) to file appeals against court rulings which are not yet enforceable, and to submit extraordinary legal remedies against final court decisions.

5) to conduct other actions as prescribed by this Code. ”

Article 225

“ (1) Where there exist grounds to suspect the commission of a criminal offence prosecutable ex officio, the internal affairs authorities are required to undertake measures required to detect the perpetrator of the criminal offence, to prevent the perpetrator or accomplice from going into hiding or absconding, to detect and secure evidence of the criminal offence and objects which may serve as evidence, and to collect all information which might be of use for the successful conduct of criminal proceedings.

(2) For the purpose of fulfilling the duty specified to in paragraph 1 of this Article, the internal affairs authorities may seek necessary information from citizens; perform requisite inspections of motor vehicles, passengers and luggage; restrict all movements within a certain area for a necessary period of time; undertake requisite measures in connection with the identification of persons and objects; issue warrants for the arrest and recovery of persons and objects being sought; inspect in the presence of responsible persons certain facilities and premises of public authorities, enterprises, shops and other legal persons, gain insight into their documentation and if needed seize it, and perform other necessary measures and actions. Records or official notes shall be made of the facts and circumstances established during the performance of certain actions which may of interest for criminal proceedings, as well as of the objects found and seized.

(3) In the course of an official inspection in connection with a criminal offence against the safety of public traffic reasonably suspected of having caused serious consequences or of having been premeditated, the internal affairs authorities may seize a suspect ’ s driver ’ s licens e, but for no more than three days.

(4) Persons subject to any of the measures or actions referred to in paragraph 2 and 3 of this Article are entitled to file complaints to the competent public prosecutor. ”

COMPLAINTS

28. Relying on Article 3 of the Convention the applicant complains that he was ill-treated by his inmates while in detention pending the outcome of the investigation proceedings. He considers that the redress afforded to him by the domestic courts was insufficient and that the acknowledgment of his sufferings was rather poor.

QUESTIONS TO THE PARTIES

Victim status

1. In view of the award made to the applicant, can the applicant still claim to be a “victim” within the meaning of Article 34 of the Convention?

Article 3 - substantive

1. Has the applicant been subjected to torture, inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?

2. In the affirmative, is this treatment imputable to the respondent Party?

Article 3 - procedural

1. Was the respondent Party under an obligation to conduct an official investigation ex officio (see M.C. v. Bulgaria, no. 39272/98, ECHR 2003 ‑ XII and Premininy v. Russia, no. 44973/04 , 10 February 2011)?

2. In the affirmative, was such an investigation carried out and if so was it effective?