6 September 2010

CHAMBER SECOND SECTION

Application no. 32277/07 by Dragan ĐEKIĆ and Others against Serbia lodged on 19 May 2007

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Dragan Đ eki ć , Mr Zoran Đekić and Mr Dragan Končar , are Serbian nationals who were born in 1976, 1984 and 1976 respectively and live in Prokuplje . They are represented before the Court by Mr B. Todorovi ć , a lawyer practising in Niš .

A. The circumstances of the case

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

On 18 September 2004 at about 2.30 a.m. the applicants were involved in a trivial road traffic accident. Shortly thereafter, the police arrived and arrested the applicants. They spent the night at the Prokuplje Police Station.

On 18 September 2004 at about 8.30 a.m. the applicants were taken to the investigating judge. They were then released.

On 22 September 2004 the applicants obtained medical certificates indicating the following injuries: Mr Dragan Đ eki ć had a bruise on his right shoulder, Mr Zoran Đekić had bruises on the back of his head, and on his right arm and right shoulder, and Mr Dragan Končar had bruises on his head, chest, abdomen, back and right shoulder.

On 8 December 2004 the applicants lodged a criminal complaint against S.B., M.K. and Z.V. claiming that they had been punched and kicked repeatedly at the premises of the Prokuplje Police Station. On 28 January 2005, after having obtained a report from the head of the Prokuplje Police Station , t he public prosecutor decided not to prosecute . The head of the Prokuplje Police Station relied in his report on an internal report prepared by the Inspectorate General of Police allegedly finding that the use of force had been lawful and necessary. It appears that the public prosecutor failed to question either the applicant s or the officers accused or any witnesses. It further appears that the public prosecutor failed to obtain the report prepared by the Inspectorate General of Police on which the head of the Prokuplje Police Station had relied in his report.

On 2 March 2005 (that is, within eight days from the notification of the public prosecutor ' s decision ) the applicants started a subsidiary prosecution against S.B., M.K. and Z.V.

On 18 April 2006, after having examined the applicant s, S.B., M.K., Z.V. and a number of witnesses , the Prokuplje Municipal Court decided that the use of force against the applicants had been lawful and acquitted the officers accused . During the criminal proceedings, the officers accused and some of their colleagues claimed that the applicants had been drunk, that they had behaved aggressively during their arrest and again at the premises of the Prokuplje Police Station and that recourse to physical force had been absolutely necessary to overcome their resistance. In contrast, the applicants and some eyewitnesses to their arrest claimed that the applicants had offered no resistance and that they had been handcuffed immediately after the arrival of the police at the scene of the accident. On 24 October 2006 the Prokuplje District Court upheld that judgment. The judgment of 24 October 2006 was served on the applicants on 27 November 2006.

On 6 December 2006 the applicants applied to the public prosecutor to lodge a request for the protection of legality on their behalf. It appears that the public prosecutor has not yet decided whether to do so or not.

B. Rele vant domestic law

The Criminal Code 1977 (published in Official Gazette of the Socialist Republic of Serbia no. 26/77, amendments published in Official Gazette of the Socialist Republic of Serbia nos. 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03 ) was in force from 1 July 1977 until 1 Jan uary 2006. The relevant Article read s as follows :

Article 66 (Ill-treatment by public officials acting in an official capacity )

“ Whoever acting in an official capacity ill-treats or insults another or otherwise treats such person in a humiliating and degrading manner, shall be punished with imprisonment from three months to three years. ”

The Code of Criminal Procedure 2001 (published in Official Gazette of the Federal Republic of Yugoslavia no. 70/01, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) has been in force since 28 March 2002. Most criminal offences (including ill-treatment by public officials acting in an official capacity) are subject to public prosecution, but some minor offences are only subject to private prosecution. By Article 20 of the Code, the public prosecutor must prosecute when there is sufficient evidence that a named individual has committed a criminal offence which is subject to public prosecution. Article 61 of the Code provides that when the public prosecutor decides not to prosecute such an offence because of the lack of evidence , the victim of the offence may nevertheless start a subsidiary prosecution within eight days from the notification of the public prosecutor ' s decision.

COMPLAINTS

The applicant s complain that they were ill-treated while in police custody and that there was no effective official investigation into their ill-treatment . They rely on Article s 3 , 6 and 13 of the Convention .

QUESTIONS TO THE PARTIES

1. Have the applicants been subjected to treatment contrary to Article 3 of the Convention while in police custody (see, among many other authorities, Ribitsch v. Austria , 4 December 1995, Series A no. 336 ; Selmouni v. France [GC], no. 25803/94, ECHR 1999 ‑ V ; and Rivas v. France , no. 59584/00, 1 April 2004 )?

2. Having regard to the procedural protection from ill-treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), has there been a breach of Articles 3, 6 and/or 13 of the Convention in the present case?

3. The Government are required to submit the following reports concerning the present case: the report on the use of force, the report from the head of the Prokuplje Police Station to the public prosecutor and the report prepared by the Inspectorate General of Police mentioned in that report of the head of the Prokuplje Police Station . The Government are also required to submit the relevant secondary legislation regarding the use of force by the police.