SECOND SECTION

DECISION

Application no. 4760/18 Ivan KOBAÅ against Croatia

The European Court of Human Rights (Second Section), sitting on 16 January 2024 as a Committee composed of:

Pauliine Koskelo , President , Lorraine Schembri Orland, Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 4760/18) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 January 2018 by a Croatian national, Mr Ivan Kobaš (“the applicant”), who was born in 1977, lives in Zagreb and was represented by Ms V. Šuster, a lawyer practising in Zagreb;

the decision to give notice of the complaints concerning the alleged ill ‑ treatment and deprivation of liberty to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the applicant’s alleged ill-treatment by the police, the authorities’ failure to investigate the incident and his allegedly unlawful deprivation of liberty.

2. On 27 April 2015 at around 1.50 p.m., following a routine traffic control of the applicant’s vehicle which was driving by, police officer D.P. was informed that the owner of the said vehicle did not have a regulated domicile and possessed an invalid identification card which should be confiscated. Officer D.P. then drove behind the applicant until the latter stopped. The applicant had no valid driver’s license or car registration documents, nor did he have any of the official identification documents on him (such as an ID or passport). Instead, he showed the police officer his lawyer’s ID card.

3. Joined by another police officer, D.M., the police officers proceeded to establishing the applicant’s identity and asked him to open the trunk of his car with a view to inspecting his vehicle, which he did.

4. According to the Government, at that point the applicant told the police that his identity check was taking too long and that he no longer wished to wait because they were in a dangerous neighbourhood. He then got into his car and tried to start the engine. The police officers ordered him to get out of the car and warned him that otherwise they would use force. Since the applicant refused to follow the police order, the police officers each grabbed the applicant by one arm trying to pull him out of his vehicle (which was a convertible). The applicant resisted, pushing against the seat and the floor of the car, and managed to free his right arm, which he swung towards officer D.P. Officer D.P. then grabbed the applicant by his leg, and with the help of D.M. pulled the applicant out of the car whereby he fell on the ground, when the officers held his neck and elbow-locked his left arm. The applicant was then handcuffed while he was lying face down on the ground. He then threatened the two police officers that they would lose their jobs because he had connections in the police.

5 . According to the applicant, he had no intention of driving away but instead wanted to close his convertible roof. When he sat in the car, put the key in and started closing the roof, officer D.P. grabbed him by his neck trying to suffocate him. Both officers then threw him on the ground face down and handcuffed him. They then continued to kick him on the head, back, neck and arms. One of the police officers put his finger forcefully into the applicant’s nose, as a result of which his nose started bleeding.

6 . At 3.05 p.m. the applicant was brought to the police station and uncuffed. He was then examined by a doctor who established that he had redness on his wrists, a minor hematoma on the left side of his neck, superficial scratches on the left side of the back and redness on his knees. The applicant was later also taken to the hospital where the same injuries were recorded, including one scratch on his head and two minor hematomas on his arms.

7. At 7.50 p.m. the applicant was arrested due to the suspicion that he had committed the criminal offence of threat towards officers D.M. and D.P. At the moment of his arrest the applicant was outside the police station with officer Z.M., fetching the security camera from his car in order to establish whether it had recorded the applicant’s treatment by the police officers. He signed the record of arrest upon his return to the police station around 9 p.m., and thereafter called his attorney and his girlfriend.

8. On the next day, the applicant was questioned by the Zagreb Deputy Municipal State Attorney, after which he was released from custody at 4.35 p.m. Officers D.M. and D.P. and several others were also heard, and ultimately all charges against the applicant were dropped.

9. On 30 April 2015 the applicant lodged a criminal complaint against officers D.P. and D.M. for causing him bodily injury, false reporting and unlawful search of an attorney. On 30 September 2015 the Zagreb Municipal State Attorney dismissed his criminal complaint finding no probable cause that the police officers had committed the offences in question.

10. The applicant then filed a motion with the Zagreb County Court to question officers D.P. and D.M., which was done by the Karlovac Police Department. According to the Government, the applicant’s lawyer was notified by phone about the questioning but did not attend it. The applicant did not pursue his complaint further.

11. His subsequent constitutional complaint was declared inadmissible by the Constitutional Court on 17 July 2017.

12. Meanwhile, following a complaint by the applicant filed with the Ministry of the Interior, the Internal Control Department conducted an inspection of the applicant’s treatment by the police, during which it heard the police officers involved and other witnesses. By a report dated 13 May 2015, it dismissed all allegations of misconduct submitted by the applicant.

13. Before the Court, the applicant complained, under Article 3 of the Convention, that he was ill-treated by the police and that the incident was never properly investigated. He also complained, under Article 5 of the Convention, that he was unlawfully deprived of his liberty, in that he stayed in the police station for over seven hours prior to his formal arrest.

THE COURT’S ASSESSMENT

14. The Court considers that it is not necessary to decide on the Government’s preliminary objections concerning the exhaustion of domestic remedies and the applicability of Article 3, since these complaints are in any event inadmissible for the following reasons.

15. The relevant general principles of the Court’s case-law concerning the substantive and procedural aspects of the State’s obligations under Article 3 of the Convention are summarised in the case of Bouyid v. Belgium ([GC], no. 23380/09 , §§ 81-90 and §§ 114-23, ECHR 2015).

16. The Court notes that the applicant had disobeyed a police officer’s clear order to get out of his vehicle. He was then informed that force would be used against him in order to remove him from the car. Since the applicant refused to follow the police order, the police officers forcibly removed him from the car. The domestic authorities found that the use of force by the police had complied with domestic law in the circumstances.

17. Moreover, the Court notes that the applicant resisted the police by pushing himself back in the seat of his car with his legs. The two police officers then managed to pull him out of the car and immobilise him on the ground, where the applicant was handcuffed. The foregoing line of events, as presented by the Government, is also consistent with the findings of the medical reports in the case, which noted one superficial scratch on the applicant’s head and several on his back, as well as minor hematomas on his neck and arms (see paragraph 6 above). No serious injuries were found which would support the applicant’s version of the events that the two police officers continued beating him while he was lying handcuffed on the ground (see paragraph 5 above). The Court thus agrees with the Government that that the force used had been made strictly necessary by the applicant’s own conduct, and was not excessive (compare Barta v. Hungary , no. 26137/04, §§ 68-72, 10 April 2007).

18. In view of the foregoing, the Court is of the view that the applicant’s complaint about the alleged ill-treatment by the police was not “arguable” for the purposes of Article 3 of the Convention and that the domestic authorities were thus not required to carry out an effective investigation into the incident ( compare also Goran Kovačević v. Croatia , no. 34804/14, § 58, 12 April 2018 and the cases cited therein).

19. Accordingly, the Court finds that the applicant’s complaints under both the substantive and the procedural limbs of Article 3 of the Convention should be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

20. The relevant general principles on the requirements of Article 5 § 1 (c) of the Convention are set out in Selahattin Demirtaş v. Turkey (no. 2) ([GC], no. 14305/17, §§ 311-21, 22 December 2020).

21. The Court notes that under section 51 of the Police Duties and Powers Act, a person’s freedom of movement may be restricted to a certain place for up to six hours in order to prevent commission of a criminal offence subject to public prosecution or a minor offence. Moreover, under Article 210 of the Code of Criminal Procedure, the police have the right to hold for up to six hours a person who is caught in the commission of a criminal act.

22. In the present case, the applicant was stopped by the police at around 1.50 p.m., whereas, according to the official police record, which the applicant signed without any objections, he was formally arrested at 7.50 p.m., that is to say, about six hours later. The circumstance that the applicant had been outside the police station at the moment of his arrest does not change the fact that he had been informed of his arrest and reasons therefor at the said time, whereas the written record on his rights had been served on him once he returned to the police station.

23. The foregoing is sufficient for the Court to conclude that the applicant’s deprivation of liberty complained of had been “lawful” within the meaning of Article 5 § 1 (c) of the Convention. It was further justified under sub-paragraph (c) of Article 5 § 1 as it served the purpose of bringing the applicant before the competent legal authority on reasonable suspicion of having committed the offence of threat towards police officers D.M. and D.P.

24. Consequently, this complaint must be rejected as manifestly ill ‑ founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 February 2024.

{signature_p_1} {signature_p_2}

Dorothee von Arnim Pauliine Koskelo Deputy Registrar President