Communicated on 1 April 2016

THIRD SECTION

Application no. 21388/15 Å andor ALMAÅ I against Serbia lodged on 29 April 2015

STATEMENT OF FACTS

1. The applicant, Mr Šandor Almaši , is a Serbian national, who was born in 1979 and lives in Male Pijace . He is rep resented before the Court by Mr V. Juhas Đurić , a lawyer practising in Subotica.

A. The circumstances of the case

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

3. On 18 April 2011 at about 4.00 p.m. the applicant was arrested and his apartment was searched by the police officers, during which among other things, his phone cards were taken away. He was brought to the Regional Centre of the Border Police ( Regionalni centar granične policije ) in Subotica concerning an alleged illegal border crossing and people smuggling .

4. At 5.00 p.m. the police ordered his detention for a period of 48 hours. The applicant was provided with a detention order, which stated that he had been deprived of his freedom on suspicion of having committed the crime of illegal border crossing and the crime of people smuggling.

5. The applicant was provided with a legal aid lawyer, who, according to the applicant, had been randomly chosen by the police officers from a list of lawyers of the Bar Association. According to the applicant, just prior to the lawyer ’ s arrival, he was slapped a couple of times in the face by the police officer. The applicant, also, claimed that he signed the statement in which he confessed the crime for fear of police brutality. According to the official record of his interrogation, the applicant confessed the crime, and then signed the document. The record further stated that, pursuant to Article 177 of the Code of Criminal Procedure (see paragraph 34 below), the applicant had read them, at his own request, and had had no objections. The minutes were also signed by the legal aid lawyer. The Public Prosecutor ( javni tužilac) had been informed of the h earing on 18 April 2011 at 5.15 p.m., but did not attend it. The interrogation lasted from 6.10 p.m. to 6.40 p.m.

6. Only after the interrogation had been concluded, according to the applicant, he was allowed to call his partner in order to engage a lawyer of his own choosing.

7. On 19 April 2011 the applicant was taken to the investigating judge ( istražni sudija ). From that moment onwards the applicant was represented by another lawyer, who had meanwhile been appointed by his partner. In the presence of the Public Prosecutor the applicant complained to the judge that he had been slapped a number of times in the face during the interrogation in the Regional Centre of the Border Police. The applicant further stated that during the interrogation there were two young police officers present and that he had been slapped by the shorter one of the two. He did not know their names. Furthermore, he claimed that he had not been able to say anything to the legal aid lawyer about the police brutality, because the one who slapped him had been present in the interrogation room at that time. The investigating judge asked him whether he needed medical assistance or not. The applicant replied that it hurt a little, but he did not need any medical assistance. As regards the charges against him, the applicant refused to answer the questions. The investigating judge had not taken any steps in respect of the applicant ’ s allegation of ill-treatment. The interrogation before the investigating judge lasted from 3.10 p.m. to 3.35 p.m., after which the applicant was released.

8. On the same day at 2.30 p.m., the investigating judge heard the co-accused, who confessed the crimes in question but also incriminated the applicant of the same crimes.

9. Also on the same day an eye -witness identification was conducted. The eye-witness recognised the applicant with 80% certainty.

10. The next day, at about 9.00 a.m. the applicant was examined by a general practitioner of his own choosing. The doctor observed that the tissue on the applicant ’ s cheek was slightly swollen and sensitive to touch.

11. On 28 April 2011 the Public Prosecutor ’ s Office indicted the applicant together with his co-accused of the crimes in question.

12. Between 12 July 2011 and 14 September 2011 four hearings were held/adjourned before the First Instance Court ( Osnovni sud ) in Subotica.

13. Officer T.L. stated that the applicant had not been subjected to ill-treatment. Also he noted that the applicant, after being properly advised of his procedural rights, had declared that he did not have a lawyer and that the police could provide him with a legal aid lawyer. He also stressed that after the questioning had been concluded, the applicant had used the telephone to call someone, but he did not know who.

14. Officer S.V. also claimed that the applicant had not been abused.

15. R.R. appearing as a witness, stated that she had been invited by the police to act as the applicant ’ s legal aid lawyer on 18 April 2011. She stated that she had not noticed any injuries on the applicant ’ s face. Prior to the interrogation, she had had a conversation with the applicant during which he had not said that he had been subjected to ill-treatment. Also he had not objected to the State-appointed lawyer. Furthermore, she stressed that the applicant had not complained that he had been deprived of his right to a telephone call. Lastly, she also noted that she had never received the decision by which she had been appointed as a legal aid lawyer.

16. The applicant confirmed his statements already given before the investigating judge. He also alleged that he had been unable to call his own lawyer, since his phone had been taken away by the police officers earlier. He claimed that before the legal aid lawyer arrived the statement had been already prepared by the police. Also he alleged that the police officers had threatened to put him in a cell if he revealed to the State-appointed lawyer that he had been subjected to ill-treatment . Lastly, in respect of the charges brought against him he remained silent.

17. The investigating judge acting as a witness stated that during the interrogation she had not noticed any injuries on the applicant ’ s face. She added that she had been two or two and a half metres away from the applicant and that she had not approached him any closer.

18. The applicant ’ s lawyer requested the court to call a doctor who examined the applicant at the material time as a witness. The lawyer also asked the court to call the applicant ’ s ’ partner as a witness as she had allegedly seen the applicant after the interrogation of 19 April 2011 and had observed his injuries (bruises on his face). The First Instance Court in Subotica refused both of the applicant ’ s lawyer ’ s requests.

19. 10 July 2011 the First Instance Court in Subotica decided to exclude the applicant ’ s statement of 18 April 2011 from the case file on the ground that he had not been interrogated in accordance with the Code of Criminal Procedure since he had never explicitly waived his right to be represented by the lawyer of his own choosing.

20. On 3 August 2011 the Appeals Court ( Apelacioni sud ) in Novi Sad quashed this decision and declared the applicant ’ s statement of 18 April 2011 legally valid. It noted inter alia that the applicant had been properly advised of his procedural rights and it was quite unclear why the First Instance Court in Subotica had ruled that the interrogation had not been in accordance with the Code of Criminal Procedure merely because the applicant ’ s statement did not contain his declaration regarding the right to engage a lawyer of his own choosing.

21. On 16 September 2011 the First Instance Court in Subotica found the applicant and co-accused guilty of illegal border crossing and people smuggling and sentenced each of them to one year ’ s imprisonment. In its reasoning the First Instance Court in Subotica inter alia rejected the applicant ’ s complaint that he had been subjected to ill-treatment as ill-founded, as his complaint were contrary to the witnesses ’ statements. It also noted that the applicant had been interrogated by the police officers in accordance with the Code of Criminal Procedure. As to the applicant ’ s conviction, the First Instance Court in Subotica took note of the applicant ’ s confession of 18 April 2011.

22. On 17 October 2011 the applicant ’ s lawyer filed an appeal on behalf of the applicant.

23. On 1 December 2011 Appeals Court in Novi Sad upheld the First Instance Court in Subotica ’ s decision and essentially, re-affirmed the reasoning of the First Instance Court.

24. Subsequently the applicant lodged his appeal with the Constitutional Court.

25. On 31 March 2015 the Constitutional Court rejected ( odbacio ) the applicant ’ s appeals as being of a fourth instance nature.

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 and 111/09)

26. 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)

27. Article 12 prohibits, inter alia , any and all violence aimed at extorting a confession or a statement from the suspect and/or accused.

28. Articles 18 § 2 and 178 provide that a court decision may not be based on evidence obtained in breach of domestic legislation, or in violation of ratified international treaties, and that any such evidence must be excluded from the case file.

29. Articles 19, 20, 46 and 235 provide, inter alia , that formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex officio , such as the ones here at issue, the authorized 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 learned 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.

30. Article 224 provides, inter alia , that a criminal complaint may be filed in writing or orally, as well as that a court of law, should it receive a complaint of this sort, shall immediately forward it to the competent public prosecutor.

31. Article 61 provides that should the public prosecutor decide that there is no basis to prosecute, he or she must inform the victim of this decision, who shall then have the right to take over the prosecution of the case on his or her own behalf, in the capacity of a “subsidiary prosecutor”.

32. Articles 5 § 1, 71, 226 §§ 8 and 9, 227 § 2 and 228 § 1, read in conjunction, provide, inter alia , that a person arrested by the police shall have the right to remain silent, as well as the right to be heard in the presence of his chosen counsel, or, in the absence thereof and depending on the seriousness of the charges, be provided with a legal aid attorney according to the order on the list of lawyers submitted by the competent bar association .

33. Articles 226 § 8 and 228 § 1, taken together, further provide that, inter alia, the person arrested by the police shall have the right to contact his lawyer, directly or through family members, including by means of a telephone.

34. Article 177 § 1 provides , inter alia , that a person arrested by the police shall be entitled to read the minutes of his interrogation before he signs them, or have those minutes read to him.

COMPLAINTS

(a) Under Article 3 of the Convention the applicant complains about the police ill-treatment of 18 April 2011, as well as the respondent State ’ s subsequent failure to conduct any investigation into this incident.

( b) Under Article 6 § 1 of the Convention the applicant complains about the overall lack of fairness of the criminal proceedings brought against him. In particular, he complains about the admission and use of evidence obtained as a result of ill-treatment.

(c) Under Article 6 § 3 (c) of the Convention the applicant complains that on 18 April 2011 he was denied the legal assistance of his own choosing.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to treatment contrary to Article 3 of the Convention whilst in police custody on 18 April 2011 (see, Bouyid v. Belgium [GC], no. 23380/09, ECHR 2015)?

2. Having regard to the procedural protection from ill-treatment (see, among many other authorities, paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the alleged lack of an investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Having regard to the admission into evidence by the criminal courts of his statement made before the police on 18 April 2011, did the applicant have a fair hearing in the determination of the criminal charge against him in accordance with Article 6 § 1 of the Convention (see Gäfgen v. Germany [GC], no. 22978/05 , § 166, 1 June 2010)?

4. Was the applicant able to defend himself through legal assistance of his own choosing on 18 April 2011, as required by Article 6 § 3 (c) of the Convention (see Dvorski v. Croatia [GC], no. 25703/11, § 100, 20 October 2015, with further references)?