6 September 2010

CHAMBER SECOND SECTION

Application no. 19072/08 by Adnan HABIMI and Others against Serbia lodged on 2 April 2008

STATEMENT OF FACTS

THE FACTS

The applicants (see the attached list) are Serbian nationals. They are represented before the Court by Mr D. Vidosavljević , a lawyer practising in Leskovac .

A. The circumstances of the case

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

In November 2006 prison riots broke out in the Niš Prison (where the applicants were then detained) and other prisons in Serbia over unfulfilled demands for the parliament to pass an amnesty law. On 24 November 2006 at about 7 a.m. hundreds of special police officers wearing masks entered the Niš Prison and brought the protests under control. Reportedly, dozens of inmates were injured during the operation (see the 2006 Report on Human Rights in Serbia of the Belgrade Centre for Human Rights and the 2006 Report on Human Rights Practices in Serbia of the US State Department).

The applicants claim that they were beaten with baseball bats and truncheons, forced to run between two rows of police officers who kicked them as they passed and lastly forced to lie on a cold, concrete floor for hours, whilst being handcuffed and, some of them, naked. Some applicants (who declare affiliation with Albanians and Roma) also claim that they were subjected to racist verbal abuse . As a result, the applicants allegedly sustained various injuries, such as fractured bones, bruises and wounds all over the body, internal bleeding and brain concussion. Some of them ( Mr Adnan Habimi , Mr Ljubomir Simić , Mr Srđan Lomigora , Mr Bojan Vučković , Mr Bajram Baždar , Mr Branislav Radulović , Mr Darko Savić , Mr Ćerim Binaj and Mr Nenad Đokić ) were treated in the Niš Hospital ( Klinički centar Niš ) . Mr Slađan Matić was treated in the Niš Military Hospital . The remaining applicants were either treated in the Niš Prison hospital unit or left without any medical assistance. T hey have submitted no evidence in this regard apart from three photos.

Between 29 March and 11 May 2007 the applicants lodged criminal complaints against unnamed special police officers and prison staff. They asked the public prosecutor to find out who had participated in the operation at issue, seek the applicants ’ medical records from the Niš Hospital , Niš Military Hospital and Niš Prison and interview some eyewitnesses.

On 5 December 2007 the public prosecutor decided not to prosecute, relying on a report from the special police forces concluding that the force used had been lawful and that the applicants ’ injuries had mainly been due to their mutual fights and /or their falling down the stairs or against the cell furniture.

Shortly thereafter the applicants applied to the investigating judge to find out which special police officers and prison staff had participated in the impugned operation, with the intention of starting a subsidiary prosecution against them. The investigating judge at first refused to take any action, but he eventually interviewed the applicants pursuant to an order of a pre-trial chamber of the Niš Municipal Court of 17 April 2008. On 22 December 2008 the investigating judge closed the investigation. It appears that he failed to determine the identity of the alleged perpetrators , which prevented the applicants from taking over the prosecution (see “Relevant domestic law” below).

On 21 January 2009 Mr Adnan Habimi , Mr Ljubomir Simić , Mr Srđan Lomigora , Mr Bojan Vučković , Mr Bajram Baždar , Mr Branislav Radulović , Mr Darko Savić , Mr Ćerim Binaj and Mr Nenad Đokić asked the Niš Hospital, through their counsel, to send them a copy of their medical files. On 23 January 2009 the Niš Hospital responded that this would be in breach of section 37 of the Health Act 2005 ( the principles of confident iality and respect for patients ’ privacy ) .

B. Relevant domestic law

The Criminal Code 2005 (published in Official Gazette of the Republic of Serbia no. 85/05, amendments published in Official Gazette nos. 88/05, 107/05, 72/09 and 111/09) has been in force since 1 January 2006. 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 of any kind, 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.”

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 and torture) ar e subject to public 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 against a named individual within eight days from the notification of that decision.

The Police Act 2005 (published in Official Gazette of the Republic of Serbia no. 101/05) has been in force since 29 November 2005. Pursuant to section 86 of that Act, whenever force has been used , the police officer concerned must submit a written report to his or her superior within 24 hours. The superior officer will then establish whether the force used has been justified and lawful.

The Health Act 2005 (published in Official Gazette of the Republic of Serbia no. 107 /05) has been in force since 10 December 2005. Section 37 of that Act deals with the principles of confident iality and respect for patients ’ privacy .

COMPLAINTS

The applicants complain that they were ill-treated during a special police operation of 24 November 2006 and that there was no effective official investigation in this connection. They rely on Article 3 of the Convention.

Num.

Last name

First name

Birth date

HABIMI

Adnan

22/05/1967

2.VUČKOVIĆ

Bojan

11/08/1969

3.LOMIGORA

Srđan

08/02/1979

4.FRANC

Robert

12/10/1972

5.STANKOVIĆ

Siniša

26/05/1973

6.IVLJANIN

Vladimir

09/04/1977

7.JURIŠIĆ

Miloš

23/09/1982

8.LJATIFI

Ramadan

14/04/1968

9.RAJKOVIĆ

Bratislav

21/11/1953

10.MATIĆ

Slađan

09/09/1975

11.Å EKULARAC

Ivan

21/07/1975

12.ĐOKIC

Nenad

07/07/1970

13.VASILJEVIĆ

Vladimir

10/01/1975

14.BINAJ

Ćerim

15/05/1961

15.JONOVIĆ

Ivica

24/06/1979

16.SAVIĆ

Darko

11/01/1979

17.ALEKSIĆ

Predrag

01/09/1959

18.OSMANOVIĆ

Branislav

02/05/1984

19.STEVANOVIĆ

Saša

24/12/1973

20.STOJANOVIĆ

Dejan

26/04/1981

21.RADULOVIĆ

Branislav

08/11/1973

22.JOVANOVIĆ

Nenad

28/10/1976

23.ZDRAVKOVIĆ

Zoran

25/02/1977

24.KOSTIĆ

Vukašin

22/08/1978

25.RISTIĆ

Goran

06/04/1963

26.TANASKOVIĆ

Ivan

26/07/1980

27.BAŽDAR

Bajram

21/02/1979

28.BELILOVIĆ

Minuš

07/08/1977

29.VASIĆ

Zoran

30/01/1976

30.VUJOVIĆ

Ognjen

10/06/1982

31.SIMONOVIĆ

Aleksandar

14/05/1982

32.GAJIĆ

Ivan

01/11/1974

33.MARKOVIĆ

Zoran

31/05/1982

34.STRUGAR

Slaviša

03/03/1975

35.GLUÅ ICA

Dane

14/01/1978

36.MATOVIĆ

Zoran

17/12/1955

37.ANTIĆ

Zoran

?

QUESTIONS TO THE PARTIES

1. Were the applicants subjected to treatment contrary to Article 3 of the Convention during the special police operation of 24 November 2006 (see Vladimir Romanov v. Russia , no. 41461/02, 24 July 2008 )?

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 Article 3 of the Convention in the present case?

3. The Government are request ed to submit the report on the use of force concerning the operation of 24 November 2006 prepared pursuant to section 86 of the Police Act 2005 and any follow-up reports, the entire file concerning the present case from the Office of the Niš Municipal Public Prosecutor and the Niš Municipal Court as well as the applicants ’ medical files from the Niš Hospital , Niš Military Hospital and Niš Prison for the period from 24-30 November 2006.

4. The Government are also requested to clarify whether it is indeed the practice of the local hospitals to re fuse to send a copy of patients ’ medical files to their counsel and to submit any secondary legislation and/or policy documents in this connection.