Communicated on 2 April 2014

THIRD SECTION

Application no. 68066/12 Jaroslav ADAM against Slovakia lodged on 22 October 2012

STATEMENT OF FACTS

1 . The applicant, Mr Jaroslav Adam, is a Slovak national, who was born in 1994 and lives in Bidovce . He is of the Romani origin, and is represented before the Court by Ms V. Durbáková , a lawyer practising in Košice .

The circumstances of the case

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

1. Arrest and police custody

3 . At around 7 pm on 18 December 2010 the applicant, then aged sixteen, another minor and a third person were stopped by a police patrol on a road between villages Svinica and Bidovce in South-eastern Slovakia on the suspicion that, shortly before, they had mugged a twelve ‑ year old boy, taking away his mobile phone.

4 . The applicant and his friends, both of whom are of the Romani origin, were taken to the Bidovce County Department of the Police Corps ( Obvodné oddelenie Policajného zboru ). Once there, they were put and kept in separate rooms.

5 . At around 10 am on 19 December 2010 the applicant and the two others were brought before an investigator of the Ko Å¡ice-okolie District Directorate of the Police Corps.

2. Charge

6 . Subsequently, still on 19 December 2010, a legal-aid lawyer was appointed to the applicant, the investigator interviewed the applicant in the presence of his mother and the lawyer, the applicant and the two others were charged with robbery, and the applicant was released from custody.

Before the investigator, no mention was made of any ill-treatment.

7 . On 21 December 2010 the applicant lodged an interlocutory appeal ( sťažnosť ) against the charge, arguing that he himself had not been involved in the attack, which had been perpetrated by his minor associate alone, to which the latter had confessed. There was no mention of any ill-treatment.

8 . On 12 January 2010 the charge against the applicant was withdrawn.

3. Criminal complaint about the applicant ’ s treatment in detention

9 . Meanwhile, in the days that followed the applicant ’ s release, his mother had presented herself at the Bidovce County Police Department and had contacted the Ministry of the Interior per telephone, aiming to complain about the treatment her son had been subjected to. In the applicant ’ s submission, her complaint was not registered and she was orally advised to file it in the written form.

10 . On 5 January 2011 the applicant and his associates filed a written criminal complaint to the Ministry of the Interior.

They directed it against the officers of the Bidovce County Department of the Police Corps who had been on d uty between 7 pm on 18 December 2010 and 10 am on 19 December 2010, expressing a suspicion that the offence of abuse of authority of a public official could have been committed.

In particular, they submitted that, while in the police custody, each of them separately had been pressured to confess on the pretext that the others had already confessed. The applicant also submitted that he had been subjected to slapping in his face and on his head until he had confessed.

The persons inflicting this treatment had worn uniforms. Although he did not know their identity, he would certainly recognise them. Except for them, there had been another person present, not wearing a uniform, presumably a relative of the robbed boy.

Throughout the entire time of the police custody, he had had to stand, without being allowed to rest, sit or lay down, and he had not been given any food or drink.

Moreover, in the applicant ’ s submission, his statutory representatives as of a minor had not been notified of his custody, let alone being present.

11 . The applicant attached a report, dated 19 December 2010, in which the issuing doctor observes that the applicant “allege[d] that he had been beaten by police officers the day before” and “had received a slap on the right half of a cheek”. The doctor further observed that there was no hematoma and that the cheek was sensitive and minimally swollen. In terms of diagnosis, he found “a bruised left cheek” and classified the injury as light, with recovery time below seven days.

4. Determination of the criminal complaint

12 . The criminal complaint was transmitted to the Ko šice Department of the Control and Inspection Section (“CIS”) of the Ministry of the Interior for examination. Subsequently, the part of the complaint concerning the failure to notify the applicant ’ s statutory representatives of his arrest and detention, to provide him with food and drink during his detention, and to hear him immediately upon his arrest was transmitted to the Ko šice-okolie District Directorate of the Police Corps (see paragraph 18 below).

13 . In examination of the complaint concerning the alleged physical mistreatment, the CIS interviewed the applicant and his associates, as well as the investigator and two officers under suspicion. In addition, it examined the case file concerning the investigation into the alleged robbery and other documentary material.

14 . One of the officers interviewed submitted that each of the detainees had been kept in a separate office, none of which was equipped with a bed, since they had no special rooms at their station for the purposes of detention. He acknowledged that the statutory representatives of the minor detainees had not been notified and he had no recollection of providing them with any food.

15 . On 9 March 2011 the CIS dismissed the complaint. It did so observing that the applicant had not raised any complaint about ill-treatment in his interview with the investigator on 19 December 2010, and holding that this could not be explained by the proclaimed fear of the officers involved since, in that interview, the applicant had been assisted by his mother and lawyer (see paragraphs 5 and 6 above). Moreover, the applicant ’ s allegations of sustained beating did not correspond to the findings in the doctor ’ s report of 19 December 2010, which only attest to a swollen cheek. In the investigation file concerning the alleged robbery, there was no indication of any ill-treatment and the applicant ’ s injury could have been inflicted in the course of his arrest, which he had resisted, and which accordingly had to be carried out forcefully. In addition, the CIS observed that the police officers in question had not been involved in the investigation of the alleged robbery, but had merely been guarding the applicant, and had accordingly had no reason to pressure him to a confession.

16 . The applicant challenged the decision of 9 March 2011 by an interlocutory appeal to the public prosecution service (“PPS”) and asked twice that a decision by the PPS to dismiss that appeal be reviewed.

On the factual level he argued that he had not been resisting his arrest and that, accordingly, no physical force had been used in its course. His injury thus could not be explained as the CIS had done. He had not complained of the ill-treatment before the investigator because nobody had asked him about it and because he had been concerned for possible repercussions.

The fact that there was no mention of the ill ‑ treatment in the investigation file was irrelevant and in fact logical, because the officers involved would naturally not make any mention of their misconduct and deny it. This logical incongruity and contradiction of arguments had not been examined.

According to the applicant, a “racial motive was not excluded” and the treatment he had been subjected to had been contrary to Article 3 of the Convention.

On the procedural level, the applicant considered that the CIS had not clarified the facts sufficiently, had drawn wrongful factual conclusions, and had failed to support its decision with adequate reasoning.

17 . The interlocutory appeal and the requests for review were dismissed, eventually by the Office of the Prosecutor General, which transmitted its decision to the applicant in a letter of 29 September 2011.

The PPS fully endorsed the findings of CIS, considering as crucial the facts that, before the doctor on 19 December 2010, the applicant had only alleged slapping, that the observations of the doctor as to the applicant ’ s injury did not correspond to the applicant ’ s subsequent allegations of sustained beating, and that the applicant had not raised any ill-treatment with the investigator on 19 December 2010.

Without any explanation, the PPS also concluded that there was no indication of any racial motive behind the treatment complained of by the applicant.

18 . As to the part of the applicants ’ criminal complaint concerning the alleged failure to notify his statutory representatives of his arrest and detention, to provide him with food and drink during his detention, and to hear him immediately upon his arrest (see paragraph 12 above), the Ko šice-okolie District Directorate of the Police Corps informed the applicant in a letter of 8 June 2011, without any explanation at all, that, “in the investigation of the given matter, no error had been committed by the investigative organs”.

5. Final domestic decision

19 . On 2 December 2011 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court, directing it against the PPS, in particular the Office of the Prosecutor General, and the Tren čín Regional Office of the PPS.

He emphasised that at the time of his arrest he had been a minor, that he had been kept at the police station the whole night without being able to rest, sit or lie down, without being given any food or drink, and that he had been subjected to psychological pressure and physical violence with a view to forcing him to confess. He considered that this treatment had been in breach of his rights under Article 3 of the Convention, as was the ensuing investigation into his complaints, on account of its lack of efficiency and independence, as well as the authorities ’ failure to act of their own initiative.

In addition, the lack of a proper investigation was aggravated by an alleged lack of an effective remedy and discrimination, contrary to his rights under Articles 13 and 14 of the Convention.

On the last point, the applicant argued that there had been many known incidents of police violence against the Roma in the course of arrest and detention in Slovakia, and that the applicant ’ s treatment by the police was influenced by his Romani origin.

20 . On 10 April 2012 the Constitutional Court rejected the complaint as manifestly ill-founded. It observed that the applicant had no legal right to have a third person criminally prosecuted, and that his criminal complaint implied no more than the right to have it properly examined. It further observed that the applicant had not complained of his alleged ill-treatment before the investigator on 19 December 2010 or in his interlocutory appeal against his charge ( see paragraphs 5 and 7 above). The fact that he had these means of asserting his rights at his disposal excluded the jurisdiction of the Constitutional Court. It concluded without further explanation that, in the circumstances, the proceedings before the PPS and the decisions of the PPS by definition could not have violated the applicant ’ s rights as identified in his constitutional complaint.

The decision was served on the applicant on 25 April 2012.

COMPLAINTS

21 . The applicant complains that he was subjected to treatment prohibited under Article 3 of the Convention, consisting of the alleged beating, food and drink deprivation, psychological pressure, and racial discrimination.

22 . The applicant also complains under Article 3 of the Convention that there was no effective, independent and prompt investigation of the own motion of the authorities concerned into his credible assertion that he had been subjected to treatment incompatible with that Article.

23 . The applicant further complains that, contrary to his rights under Article 13 of the Convention, he has not had an effective remedy at his disposal in respect of his complaints under Article 3 of the Convention.

24 . Lastly, relying on Article 14, in conjunction with Articles 3 and 13 of the Convention, the applicant complains that his ethnic origin was a decisive factor in the ill treatment he suffered during his detention as well as in the subsequent failure of the authorities to conduct a proper investigation into the ill treatment. With reference to various international reports and other texts, the applicant submitted that discrimination against Roma in Slovakia was pervasive in all aspects of their lives, including attacks by police officers and population against Roma and investigation into such attacks. In that respect, with reference to various international reports and other texts, the applicant submits that discrimination against Roma in Slovakia is pervasive in all aspects of their lives, including attacks by police officers and population against Roma and investigation into such attacks.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to treatment incompatible with Article 3 of the Convention?

2. Having regard to the procedural protection under that provision (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation into the applicant ’ s complaints in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention, as required by Article 13 of the Convention?

4. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the ground of his Romani origin contrary to Article 14 of the Convention, read in conjunction with Articles 3 and 13 of the Convention?