FIFTH SECTION

Application no. 58349/09 Frančiška ŠTEFANČIČ against Slovenia lodged on 23 October 2009

STATEMENT OF FACTS

The applicant, Ms Frančiška Štefančič , is a Slovenian national, who was born in 1933 and lives in Ajdovščina . She is represented before the Court by Mr L. Mohorič , professor.

A. The circumstances of the case

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

According to the police report, on 19 June 2008 the Head of Nova Gorica State Prosecutor ’ s Office informed the police about a number of visits to their offices made by B.Š., the applicant ’ s son, in the previous weeks. Apparently, B.Š. was on these occasions very aggressive and threatened to beat up or kill several persons including his doctor, mother and sisters. The Head of the State Prosecutor ’ s Office further informed the Idrija Psychiatric Hospital staff of B.Š. ’ s threats and was told that the latter was mentally ill and had already been treated in their hospital several times. She was also warned that B.Š. should be taken seriously, as he was physically strong. Thereupon the hospital psychiatrists proposed that the Ajdovščina Community Health Care Centre (hereinafter the ACHCC) order B.Š. ’ s involuntary confinement.

At 5.30 p.m. a doctor of the ACHCC telephoned the Ajdovščina Police Station (hereinafter the APS) to request police assistance in the involuntary confinement of B.Š. on the ground of his threats and aggressiveness. She later submitted a written request to the APS.

At 5.55 p.m. the duty officer of the APS submitted the request to the commander, who granted it.

At 6.00 p.m. APS police officer J.T. set off to B.Š. ’ s home and found the latter to be there. He informed the officers of the Nova Gorica Police Directorate Operation and Communication Centre thereof, and they further informed the ACHCC staff that they could proceed to the involuntary confinement. Police officer J.T. then remained on the spot until the ACHCC medical staff consisting of B.A., doctor on duty of the ACHCC, as well as S.M. and I.P., medical technicians, arrived. Also sent to the scene were D.K., another APS police officer, police officer dog handler J.K. and a traffic patrol of the Nova Gorica Traffic Patrol Police.

Upon their arrival around 8.00 p.m., the police officers first talked to the applicant, who was sitting outside her home which she shared with B.Š., and asked her whether her son was in the house and whether he was armed. The applicant replied that B.Š. was indeed in the house and that he was on the telephone. She further explained that she was not aware of B.Š. ’ s possessing any firearms. The medical team informed the applicant of the reason for their arrival and entered the house upon her invitation, while the police officers remained on the doorstep. Dr B.A. informed B.Š. that they were going to take him to a psychiatric hospital. B.Š. refused to follow them. The medical team then attempted to persuade B.Š. to come with them; however he became agitated and verbally aggressive. The police officers warned B.Š. that he would be taken to the hospital by force if he refused to come of his own will.

The medical technicians attempted to take hold of B.Š. ’ s arms, but he pushed them off and started to scream. Thereupon, Dr B.A. instructed the police officers to handcuff B.Š., but when J.T. and D.K. attempted to restrain him, he resisted forcefully and pushed them off. In response, the police officers used physical force in order to push him to the ground, and J.K. ordered a muzzled and leashed dog to jump at him. As B.Š. did not seem to react to the dog, J.T. and D.K. continued using physical force and managed to knock B.Š. to the ground and turn him partially to the side. At that point, S.M. injected B.Š. with the first dose of tranquiliser, but was unable to apply the entire dose due to the latter ’ s strong resistance. Thereupon, J.T. and D.K. attempted to turn B.Š. to the stomach, whereby they were joined by J.K., who used the technique of a “rear choke” on him. They managed to restrain B.Š. in the prone position and put handcuffs on him, whereupon I.P. injected the second dose of tranquiliser into his body.

B.Š. calmed down immediately upon receiving the second dose of tranquiliser. A few moments later, the police officers and medical technicians noticed that B.Š. was vomiting. They alerted Dr B.A. about this, but he initially assessed that the vomiting could be attributed to the exertion. However, when one of the medical technicians checked on B.Š. ’ s condition, he detected an irregular heartbeat, and the medical team began to resuscitate him at 8.10 p.m. They attempted to remove B.Š. ’ s handcuffs, but only managed to free one of his hands, before the key broke.

The applicant was still outside and headed to the front of the house when she heard loud screaming and dog barking. When she approached the front door, she saw a number of police officers and Dr B.A., who was massaging B.Š. ’ s chest. The applicant asked the police officers what was going on, and received a reply that they were resuscitating B.Š. A while later the applicant was approached by B.A., who offered his condolences. B.Š. ’ s death was pronounced at 8.45 p.m.

Immediately after B.Š. ’ s death, the APS police officers notified the Nova Gorica Police Directorate Operation and Communication Centre of the incident and secured the area. The State Prosecutor on duty of the Nova Gorica State Prosecutor ’ s Office and the investigating judge on duty of the Nova Gorica District Court were also notified of B.Š. ’ s death. The latter came to the scene of the incident and ordered a forensic examination of B.Š. ’ s body.

Statements were taken from the police officers involved in the incident and a witness to the incident. The medical file and equipment used in resuscitation were also seized.

On 31 July 2008 the Head of Criminal Police Division of the Nova Gorica Police Directorate submitted a report on the incident to the Nova Gorica State Prosecutor ’ s Office. Based on a statement provided by the pathologist who conducted the forensic examination, the report listed asphyxiation from inhaling gastric contents as the cause of B.Š. ’ s death. According to the pathologist, B.Š. died during the intervention and his death could not have been prevented by medical assistance. Therefore, the police report concluded that no facts were established giving rise to a suspicion that a criminal offence was committed in connection to the death of B.Š. which was prosecuted ex officio .

On 10 September 2008 the investigating judge of the Nova Gorica District Court received the forensic report, which recorded asphyxia from inhaling gastric contents as the immediate cause of death. In addition to the trauma consistent with the cause of death, the examination discovered a number of blunt injuries in different parts of B.Š. ’ s body.

The latter included bruises and contusions on the outer side of the shoulder blade, on the left side of the back and the back side of the right thigh, swelling on the right side of the hairline and the squamous part of the temporal bone, contusions on the inner side of the right upper arm and the left forearm and on the front side of the left thigh. There were also several hematomas recorded in the area of the left shoulder blade, on the outside edge of the right shoulder blade, on the right side of the thorax and in the scalp area, as well as a pulmonary oedema, an oblique fracture of the fifth rib, bruising in the area of the lumbar spine, and a brain swelling.

According to the report, these injuries were caused by a blow of an object against the body or by pressing a part of the body against an object or by falling or pressing the body between two hard surfaces. As regards the injuries to the back of B.Š. ’ s body, the hairline and to the front of his left thigh, the forensic pathologist concluded that they had very likely occurred by a fall or falls and blows, and the bruises were caused by pulling the body on the floor.

The toxicology report revealed a low concentration of haloperidol, an antipsychotic drug with strong calming effects, in B.Š. ’ s blood. The forensic report concluded that the substance was consumed either as prescription medicine or it was administered during the intervention in order to calm down B.Š., but could not be linked to his death or identified as the cause of his vomiting.

No particularities or disease related changes were found in the organism of B.Å . which could have directly contributed to his death.

With regard to the investigating judge ’ s question whether B.Š. ’ s death could have been prevented by prompt and adequate medical assistance, the forensic report states:

Disregarding the particular circumstances surrounding the incident, this question could be answered in the affirmative; however, one cannot neglect the exceptional circumstances in which the incident occurred.

Prompt and adequate medical assistance could have saved the life of [B.Å .], even in the event that no ambulance with resuscitation equipment was immediately available.

It is likely that [B.Å .] was thrown or pushed to the ground where, prior to being handcuffed, his body was pressed down by applying body weight or other pressure. A blow or pressure to the stomach most likely induced vomiting. In so far as the medical staff or the officers assisting them in the involuntary confinement had noticed in due course that [B.Å .] began to vomit, they could have prevented him from inhaling gastric contents either by lifting his body to the vertical position or by turning him to the side and mechanically clearing his oral cavity by using their fingers or an aspirator (if an aspirator was at the disposal of the medical staff). However, it was not possible to apply any of these measures to an aggressive patient resisting the hospitalisation; namely, it is only possible to apply these measures after the patient has calmed down or lost consciousness as a result of disruption in the exchange of gases following the aspiration of gastric contents. Having regard to the agitation and the aggressiveness of the patient as well as the circumstances of the incident, such measures almost certainly could not have been used.

The deceased only lost consciousness when his breathing was disrupted by inhaling massive amounts of gastric contents. Only then was it possible to apply more aggressive medical intervention (mechanical clearing of the oral cavity, suction of gastric contents from the oral cavity and respiratory tract, removal of potentially larger foreign object and insertion of a tube with a balloon to prevent continuing aspiration of gastric contents, ventilation of the patient), which could not be performed on a conscious person, in particular on an aggressive person, due to unpleasant feelings such an intervention would induce. In the present case, the aspiration of gastric contents was particularly massive and aggressive, which is indicated by the pieces of food which were found by the histological analysis to be present even in the alveoli, that is the final branching of the respiratory system.

In the present case it was not possible, once the deceased lost consciousness, to apply those methods and suction the gastric contents from the respiratory passageways and the alveoli; considering the quantity and force of the aspiration of gastric contents, medical assistance probably would not save the life of [B.Å .].

On 20 January 2009 the applicant, through her representative L.M., lodged a criminal complaint against police officers J.T., D.K. and J.K., whereby he stated that B.Å . was strangled and died as a result of an unnecessary and unprofessional police intervention. The applicant also stated that the forensic report was misleading and doubtful as to its correctness.

On 2 June 2009 a State Prosecutor of the Specialised Department attached to the Group of State Prosecutors for the Prosecution of Organized Crime, which had exclusive jurisdiction for the prosecution of criminal offences committed by police officers, rejected the applicant ’ s criminal complaint on the basis of the police and forensic reports.

The decision to reject the criminal complaint summarised the information included in the two reports as well as the statements of Dr B.A. and medical technicians S.M. and I.P., who submitted that B.Š. had strongly resisted being taken to the psychiatric hospital and had only calmed down when he had been restrained and injected with a tranquiliser. I.P. also stated that after having been administered the second dose of tranquiliser, B.Š. had stopped breathing or had been breathing shallowly, but had apparently taken a breath just when Dr B.A. had checked on him. Dr B.A. had then proceeded to organise B.Š. ’ s transport to the psychiatric hospital, while I.P. had checked again whether B.Š. had been breathing. When the police officers had turned B.Š. onto his back, they had discovered that he had vomited and that his face had turned blue, at which point they had begun to resuscitate him.

The State Prosecutor, relying on the forensic report, concluded that B.Š. ’ s death could have been prevented if it had been noticed in time that he had begun to vomit. However, in the circumstances of the case in question, where B.Š. was aggressive and resisted hospitalisation, no assistance could have been provided until he had calmed down.

No appeal was available to the applicant against the decision of the State Prosecutor to reject her criminal complaint.

B. Relevant domestic law

Under the provisions of the Criminal Procedure Act (hereinafter the CPA), the public prosecution is mandatory where there is a reasonable suspicion ( utemeljeni sum ) that a criminal offence subject to mandatory prosecution has been committed. Public prosecutions are conducted by the State Prosecutor ’ s Office, an autonomous body within the justice system. In 2007 the CPA was amended to provide for an independent investigation of criminal offences allegedly committed by police officials and other persons vested with police powers.

To this end, the Sp ecialised Department of the Group of State Prosecutors for the Prosecution of Organised Crime was established, charged with the prosecution of criminal offences allegedly committed by persons vested with police powers, while the tasks of detection and investigation of these offences were conferred upon a team of police officers attached to the Specialised Department which take over the investigation once the “grounds for suspicion” ( razlogi za sum ) have been established to exist. If the circumstances of the incident in question are found not to give rise to any grounds for suspicion that a criminal offence was committed by a police official, the case is not referred to the specialised police team.

Article 158a of the Criminal Procedure Act , as in force at the material time, which concerns the powers of the police officers in a specialised team, reads, in so far as relevant, as follows:

“(1) If there are grounds for suspicion that a criminal offence that is prosecuted ex officio was committed by an officer employed in the police or another officer employed in internal affairs agencies or in a statutory body within the Ministry responsible for defence that has police powers in pre-trial procedure, or an officer seconded to a mission abroad, police officers in a specialised the team of state prosecutors in charge of fighting organised crime (hereinafter police officers of the specialised team) shall be vested with police powers laid down in this Act.

(2) Police officers of the specialised team shall be obliged to inform without delay the competent state prosecutor from the specialised team of state prosecutors in charge of fighting organised crime about the grounds for suspicion that a criminal offence from the preceding paragraph was committed and to keep him informed about the planning and course of the pre-trial procedure.

(3) The state prosecutor from the preceding paragraph shall direct and supervise the pre-trial procedure from the preceding paragraphs and decide on its course and termination. He shall have the right to inspect files, participate in the collection of evidence and directly perform individual acts in the procedure. The assigned police officers shall be obliged to act as directed by the state prosecutor.

...”

A criminal complaint against known or unknown persons can be lodged by any person with the police or the State Prosecutor. The preliminary proceedings are further initiated upon the police or the State Prosecutor being informed by any means whatsoever of a situation that gives rise to grounds for suspicion, that is, less than a reasonable suspicion that an offence which is subject to mandatory prosecution has been committed.

If a State Prosecutor or a State Prosecutor of the Specialised Department dismisses the criminal complaint or drops the charges at any time during the proceedings, the aggrieved party has the right to take over the conduct of the proceedings as a “subsidiary prosecutor” ( subsidiarni tožilec ), that is, as an aggrieved party acting as a prosecutor. A subsidiary prosecutor has, in principle, the same procedural rights as the State Prosecutor, except those that are vested in the public prosecutor as an official authority.

The provisions of the State Prosecutors Act, as in force at the material time, which concern the powers of the Specialised Department of the Group of State Prosecutors for the Prosecution of Organized Crime read, in so far as relevant, as follows:

Article 10

“The Group of State Prosecutors for the Prosecution of Organized Crime (hereinafter the Group) shall operate as a separate organisational unit under the auspices of the Supreme State Prosecutor ’ s Office of the Republic of Slovenia (hereinafter the Supreme State Prosecutor ’ s Office).

The Group shall have jurisdiction to deal with criminal offences pertaining to the traditional and commercial organised crime, terrorism, corruption and other criminal offences whose investigation and prosecution rely on special organisation and qualifications.

The Group shall have jurisdiction in the entire territory of the Republic of Slovenia .

A Specialised Department shall operate within the Group, which shall have exclusive jurisdiction for the prosecution of criminal offences committed by officials pertaining to the Police or to other areas of home affairs, by officials pertaining to the units of the Ministry of Defence vested by the law with police powers in pre-trial proceedings, and by officials vested with police powers in pre-trial proceedings seconded to missions abroad. The state prosecutors of the Department shall be vested with powers to prosecute these criminal offences and to provide guidance to the police as regards detection and investigation of these criminal offences.

The State Prosecutor General may, on a proposal by the Head of the Group or the Head of the Specialised Department, assign another state prosecutor ’ s office with territorial jurisdiction to deal with a specific case which falls within the jurisdiction of the Specialised Department, in so far as he or she deems that, considering the nature of the case, the prosecution of the perpetrator and the guidance of the police are to be more efficient under the jurisdiction of a state prosecutor ’ s office.

Any state prosecutor ’ s office with territorial jurisdiction to deal with the case is required to cooperate with the Group in the execution of its tasks.”

Article 10e

The tasks of detection and investigation of criminal offences set forth in Article 10(4) of this Act shall be carried out by persons vested with police powers who shall exercise the police officer posts in the Specialised Department.

The police officers of the Specialised Department may, for the purpose of implementing the jurisdiction of the Specialised Department set forth in Article 10(4) of this Act, carry out all police powers and tasks as determined by the act governing the police and by the act governing criminal proceedings, and regulations adopted on the basis thereof.

COMPLAINTS

1. The applicant complains under Article 2 of the Convention about the death of her son B.Å . She submits that B.Å . was afflicted by illness and should not have been approached by the police and medical staff in such a cruel and aggressive manner. She considers that his death occurred as a result of a use of force which was not absolutely necessary in the circumstances of the case.

In addition, she submits that the establishment of a commission to investigate into the circumstances of B.Š. ’ s death was only an attempt to conceal the truth, avoid responsibility and ensure that the incident was forgotten about.

2. The applicant further complains that the rejection of the criminal complaint against the police officers involved in the incident deprived her of an effective remedy within the meaning of Article 13 of the Convention.

Q UESTIONS

1. Was the dea th of the applicants ’ son B.Š. a result of a violation of Article 2 of the Convention?

In particular, did B.Š. ’ s death occur as a result of force used in the course of the intervention initiated to bring him to the psychiatric hospital? If so, was the use of force absolutely necessary within the meaning of Article 2 of the Convention (see, for example, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 174-182 , ECHR 2011 (extracts) )? Moreover, once B.Š. began to vomit, did the police and medical staff take reasonable steps to avoid the risk of his death by monitoring his condition and providing timely medical assistance?

2. Having regard to the procedural obligation to investigate, was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

The Government are requested to submit copies of the complete case file pertaining to the investigation of B.Š. ’ s death, including copies of all interviews conducted in the case, and of all documents on the basis of which the criminal complaint lodged by the applicant ’ s representative was dismissed.