Communicated on 25 April 2016

THIRD SECTION

Application no. 29896/14 Mališa JEVTOVIĆ against Serbia lodged on 6 April 2014

STATEMENT OF FACTS

The applicant, Mr Mališa Jevtović , is a Serbian national, who was born in 1974. He is currently serving his sentence in the Belgrade Penitentiary. The applicant is represented before the Court by Beogradski Centar Za Ljudska Prava , a non-governmental organization based in Belgrade.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

On 18 July 2005 the applicant was arrested under the suspicion that he had committed a sexual violence against a three-year old girl which resulted in her death.

On 20 July 2005 he was placed in detention pending trial in the Belgrade District Prison.

On 24 November 2009 the applicant was found guilty for aggravated murder and sentenced to forty years ’ imprisonment.

On 24 February 2011 the Belgrade Appelate Court upheld that judgment.

On 6 October 2011 he was transferred to the Po ž arevac Penitentiary.

On 24 May 2013 the applicant was transferred to the Belgrade Penitentiary.

2. The alleged ill-treatment of the applicant between 18 and 20 July 2005 in the police station

On 20 July 2005 the applicant was brought and questioned before the investigating judge. The applicant stated before the judge that after he had been arrested and his lawyer had left, he was maltreated by the police officers. The police officers used electric shocks, twisted his arms, put plastic bag over his head, chocked him and put a truncheon in his mouth. The judge noted the whole applicant statement in the minutes, as well as two injuries on his right arm and his demand to be examined by a doctor. On the same day, the applicant was transferred to the Belgrade District Prison.

On 21 July 2005 the applicant was examined by the prison ’ s doctor. In his medical report of 22 July 2005 the doctor noted three injuries: a hematoma on the left arm, an excoriation on the left hand and a hematoma on the right knee joint. The applicant was sent for x-ray, but no serious injuries were found.

3. The alleged ill-treatment of the applicant between 20 July 2005 and 6 November 2011 in the Belgrade District Prison and the inquiry

During the applicant ’ s detention in Belgrade District Prison from 20 July 2005 until 6 November 2011, several events of alleged ill-treatment occurred.

(a) Events of 21 July 2005

On 21 July 2005 one prison guard took the applicant for a walk and after couple of circles, the prison guard told him to go into the corridor. According to the applicant ’ s statement, there were twelve other prison guards waiting for him, who immediately started to beat him by fists, legs and rubber truncheons. They took the applicant in the prison yard, where the other prisoners attacked him, and then the same group of prison guards beat him again. The applicant asked several times to be examined by a doctor, but the prison guards avoided to take him to the doctor.

On 27 July 2005 the prison doctor examined the applicant. In his report of 5 August 2005 the doctor noted that the applicant ’ s statement that he was beaten six days before the examination. The doctor further noted that there were hematomas on the places of the old injuries which he had noted during the previous examination on 21 July 2005 and that there was one new visible injury, redness on the right hip. X-rays of the thorax showed nothing.

On an unspecified date, the applicant wrote a statement about those events. As a response to the applicant ’ s statement, the prison guard on duty made a report on 5 August 2005 in which it was stated that the applicant had not been ill-treated by the prison guards, although he had behaved outrageously and few prison guards had wanted to confront him physically. The prison warden was informed about those events.

(b) Events of 11 June 2007

On 11 June 2007 the applicant and another prisoner attacked each other physically. After warning them to stop fighting, one of the prison guards used physical force to separate them and then a rubber truncheon, because they were resisting. After they had stopped resisting, the prison guard stopped the application of coercive measures. The prisoners were taken to the infirmary. The doctor noted several injuries on the applicant ’ s gluteus, both elbows and right knee.

The prison guard who was on duty made report about those events and a disciplinary complaint was filed against the prisoners. In his statement sent to the Constitutional Court, the prison warden said that those injuries were the consequence of the lawful application of coercive measures.

(c) Events of 18 December 2009

In the report concerning the events in question and disciplinary complaint filed against the applicant, it is noted that the applicant had breached the prison rules by attacking verbally the other inmate. One of the prison guards warned him to stop and the applicant attacked him physically. The prison guard used physical force and a rubber truncheon, since he could not resist the applicant ’ s attacks otherwise. Another prison guard helped him. The prison guards informed their supervisor about the events, who ordered that the applicant be taken to a doctor. The applicant was not examined immediately by the doctor, but couple days later, that is on 29 December 2009. The doctor noted several injuries in his report. The prison warden stated again in his response to the Constitutional Court that those injuries were the consequence of the lawful application of coercive measures.

(d) Other events

Two more events concerning the applicant were noted on 22 January 2010 and 18 July 2011 when he committed disciplinary offences. In the first case, he kicked the door several times and one of the prison guards had to use physical force against the applicant. The second time he attacked a prison guard verbally, but there was not any physical contact. After both events, no injuries were found on the applicant ’ s body.

From the enclosed documents, it can be seen that within the period from 20 July 2005 until 6 November 2011, the applicant filed 13 different claims and appeals to the prison warden, the Directorate for Execution of Criminal Sanctions and the Ministry of Justice concerning his alleged ill-treatment with the names of the prison guards who beat him. However, there is no evidence that any proceedings were initiated upon his claims.

4 . The alleged ill-treatment of the applicant in the Požarevac Penitentiary and the inquiry

On 6 November 2011 the applicant was transferred to the Požarevac Penitentiary to serve his sentence. During his stay in this prison, two events occurred.

(a) Events of 22 December 2011

On 22 December 2011 the applicant made a phone call without permission in the prison yard. When he was asked to go to the room and write a statement about the phone call, he refused to do so and started to swear. The prison guard repeated his order. The applicant refused to obey and when the prison guard tried to take him into the room, the applicant resisted by grabbing a radiator. Two other prison guards helped the prison guard by using the physical force and the rubber truncheon. After those events, the applicant was examined by the doctor who noted several injuries on his back, but all vital functions were fine. The next day, on 23 December 2011 the applicant was examined once again and the same injuries were noted. Disciplinary proceedings were initiated against the applicant for the offence in question and he was sentenced to 15 days of imprisonment in solitary confinement. On 24 December 2011 the applicant filed a claim with the Ombudsperson.

(b) Events of 24 December 2011

On 27 December 2011 the Ombudsperson ’ s team visited the applicant and took his statement and the statements from the warden and doctors. They also performed a medical examination of the applicant and read official documents.

The Ombudsperson found that the applicant had been ill-treated on 24 December 2011 and that the injuries he had suffered had not been registered in the official documents. The warden was not informed about that and the applicant was not examined by the doctor. Therefore, his right to health protection was infringed. The prison doctor noted that the injuries he found during the visit of the Ombudsperson ’ s team were larger than these he had found earlier on 22 December 2011. The Ombudsperson concluded that the number of injuries, as well as the degree of injuries and manner in which they were made indicated that the applicant had been ill-treated again after 22 December 2011 by the prison guards.

The Ombudsperson recommended the Penitentiary to investigate the circumstances of the events of 24 December 2011 in order to find persons responsible for ill-treatment of the applicant, for not reporting the injuries he suffered and taking him to a doctor and for not informing the warden of the penitentiary about those events.

Following the recommendation of the Ombudsperson, the warden undertook certain inquiries in order to determine the facts of the events of 24 December 2011 and the responsible persons (looking at the time-sheet of the prison officers, health booklets, register of the application of coercive measures, register of prisoners ’ complaints and taking statements of all prison officers). He could not identify with certainty how the applicant had been injured and who the alleged perpetrators were, so no disciplinary proceedings were initiated.

5. Criminal prosecution

On an unspecified date the applicant filed a criminal complaint. On 14 March 2012 the Požarevac Public Prosecutor submitted a proposition for certain inquires against unknown persons for i ll-treatment and torture and severe bodily injury to the Požarevac First Instance Court. During the preliminary investigation, the applicant, thirteen prison guards, the prison ’ s doctor and one applicant ’ s inmate were interrogated. A forensic report was prepared concerning the type, qualification and mechanism of injury. It was found that the applicant had been attacked twice, on 22 and 24 December 2011. The injuries occurred on 24 December 2011 could have been made by one or more persons and it took at least ten minutes for those injuries to appear. The applicant was, according to this report physically and psychologically ill-treated.

The applicant alleged that he was ill-treated by the prison guard who had number 1244, but the warden informed the court that there was no such a prison guard in the penitentiary. The investigating judge requested a video record of the area in front of the applicant ’ s room, but the warden informed the judge that there no video surveillance was installed at that time.

On 10 April 2012 the applicant asked the Directorate for Execution of Criminal Sanctions to be transferred to another penitentiary because he was concerned for his safety. On 24 May 2012 the warden rejected his request.

On 15 May 2013 the Prosecutor informed the investigating judge that there were no grounds for instigation of criminal proceedings and that he ordered the Požarevac Police Station to find an unknown person who committed the offence.

On 21 May 2013 the investigating judge asked the Prosecutor whether the applicant had been informed about a prosecutor ’ s decision not to initiate criminal proceedings and that he has right to lodge a private complaint.

6. Proceedings before the Constitutional Court

On 7 September 2011 the applicant lodged a constitutional appeal.

On 10 July 2013 the Constitutional Court explicitly found a violation of the applicant ’ s right to inviolability of his physical and mental integrity (substantive and procedural aspect) during his detention in Belgrade District Prison (the events of 11 June 2007 and of 18 December 2009) and during the serving of his sentence in the Po ž arevac Penitentiary and awarded the applicant 1000 euros (EUR) for non-pecuniary damage. It further ordered the competent authorities to expedite the proceedings concerning the events of 24 December 2011. In its decision, the Constitutional Court found that the force used against the applicant was justified each time, but it was excessive and led to inhuman treatment of the applicant. The treatment caused the applicant serious injuries, as well as physical and mental suffering. However, there was no evidence that the prison guards intended to cause those injuries to the applicant with a specific aim. In addition, the competent authorities failed to carry out an effective investigation concerning all the events occurred in Belgrade District Prison and the Po ž arevac Penitentiary.

The constitutional court dismissed the applicant ’ s complaint concerning his alleged ill-treatment during the stay in the police station and the events of 21 July 2005 in the Belgrade District Prison as incompatible ratione temporis (substantive and procedural aspect), since the ill-treatment occurred before the entering of the Constitution into force, that is before 8 November 2006 and the applicant did not seek any remedy in respect of those events.

No progress has been made in respect of the proceedings concerning the events of 24 December 2011 .

B. Relevant domestic law

1. 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. If the offence specified in paragraphs 1 and 2 above is committed by an official acting in an official capacity, the official shall be punished for the offence in paragraph 1 with imprisonment from three months to three years, and for the offence in paragraph 2 with imprisonment from one to eight years.”

2. 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)

Articles 19, 20, 46 and 235, read in conjunction, provide, inter alia, that formal criminal proceedings may be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex officio the authorised prosecutor is the public prosecutor personally. The latter ’ s authority to decide whether to press charges, however, is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed. It makes no difference whether the public prosecutor has learnt of the incident from a criminal complaint filed by the victim or another person, or indeed even if he has only heard rumours to that effect.

Article 61 provides that should the public prosecutor decide that there are no bases to press charges, he must inform the victim of this decision, who shall then have the right to take over the prosecution of the case on his own behalf, in the capacity of a “subsidiary prosecutor”, within eight days from the notification of that decision.

Articles 64 § 1, 239 § 1, and 242, taken together, provide that when the alleged perpetrator of a crime remains unknown a subsidiary prosecutor shall be entitled to petition the investigating judge to undertake specific, additional, measures aimed at the establishment of his identity prior to deciding on whether or not to seek the institution of a formal judicial investigation. Should the investigating judge reject this request, it shall, pursuant to Article 243 § 7, be up to the pre-trial Chamber of the same court to rule on the matter.

Article 257 § 2 provides that, once a formal judicial investigation has been completed, the investigating judge shall provide the public prosecutor with the case file who shall then have fifteen days to decide on how to proceed, i.e. whether to ask for additional information from the investigating judge, lodge an indictment with the court, or drop the charges in question.

Article 259 § 2 provides, inter alia, that the provisions of Article 257 § 2 shall also be applied, mutatis mutandis, to a subsidiary prosecutor.

COMPLAINTS

Relying on Article 3 of the Convention the applicant complains that he was ill-treated by the police officers and prison guards during his stay in the police station, detention pending trial in Belgrade District Prison and while serving his sentence in the Po ž arevac Penitentiary and that the State authorities failed to carry out an effective official investigation in that regard . The Constitutional Court found a violation of the applicant ’ s right to inviolability of physical and mental integrity, but only in respect of the events occurred in Belgrade District Prison (the events of 11 June 2007 and of 18 December 2009) and the Po ž arevac Penitentiary and awarded the applicant insufficient redress.

The applicant further relies on Article 6 and complains that Constitutional Court failed to respect the principle of equality of arms, by not introducing him with all the documents it received from different state institutions and enabling him to comment on them.

QUESTIONS TO THE PARTIES

1. Having regard to the Constitutional Court ’ s decision of 10 July 2013 and the Court ’ s case-law (see M.C. v. Poland , no. 23692/09 , §§ 93-94, 3 March 2015 Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 211-216, ECHR 2006 V), can the applicant still be considered as a victim within the meaning of Article 34 of the Convention?

2. Was the applicant subjected to treatment contrary to Article 3 of the Convention in respect of the events of 11 June 2007, 18 December 2009 and 22 and 24 December 2011 (see Hajnal v. Serbia , no. 36937/06 , 19 June 2012 and Vladimir Romanov v. Russia , no. 41461/02, 24 July 2008 ) ?

3. Having regard to the procedural protection from ill-treatment (see Habimi , cited above , § 71, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), has there been a breach of Article 3 of the Convention in the present case?