CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 novembre 2006

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margin-bottom:36pt; text-indent:14.2pt } .s6E97E8AF { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s8DCCCE3B { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt } .s2452CEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.4pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sFB009CA1 { width:2.86pt; display:inline-block } .s3AC33C1 { width:206.78pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     THIRD SECTION     CASE OF MATKO v. SLOVENIA     (Application no. 43393/98)     JUDGMENT       STRASBOURG     2 November 2006       FINAL     02/02/2007       This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Matko v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Mr   J. Hedigan , President ,   Mr   B.M. Zupančič ,   Mr   C. Bîrsan ,   Mrs   A. Gyulumyan ,   Mr   E. Myjer ,   Mr   David Thór Björgvinsson ,   Mrs   I. Berro-Lefevre, judges , and Mr V. Berger , Section Registrar , Having deliberated in private on 12 October 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 43393/98) against the Republic of Slovenia lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the   Convention”) by a Slovenian national, Mr Aleksander Matko (“the   applicant”), on 22 July 1998. 2.     The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General. 3.     The applicant alleged that he had been ill-treated by the police and that the investigation into his allegations had not been effective. He relied on Article 3 of the Convention. He further complained that his arrest had been unlawful and thus in violation of Article 5 of the Convention. He also alleged that the criminal proceedings had been unfair and excessively long (Article 6 of the Convention). 4.     The application was transmitted to the Court on 1 November   1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.     The application was allocated to the Third Section of the Court (Rule   52 §   1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6.     By a decision of 8 July 2004 the Court joined to the merits the question concerning the exhaustion of domestic remedies and the issue relating to the six-month rule and declared the application partly admissible. 7.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ). The parties replied in writing to each other’s observations. 8.     On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicant was born in 1961 and lives in Slovenj Gradec. A.     The incident 10.   On 4 and 5 April 1995 a Special Unit ( Specialna enota ), which was under the direct control of the Ministry of Internal Affairs (“the MIA”) in cooperation with officers from the Slovenj Gradec Internal Affairs Administration ( Uprava za notranje zadeve – hereinafter referred as the “Slovenj Gradec Police”) undertook a large-scale operation against the activities of a criminal organisation presumed to be operating on the territory of the town of Slovenj Gradec. 11.     On 4 April 1995 the officers twice entered a coffee bar in Slovenj Gradec, called “ Pik Bar ”, searching for members of the above-mentioned criminal organisation. In parallel to the investigation of the Pik Bar , the police carried out an extensive operation in the town and its surroundings. 12.     On 5 April 1995 at about 8.30 p.m. the applicant, driving a car, was arrested in Slovenj Gradec by officers of the Special Unit and the Slovenj Gradec Police. He was brought to the Slovenj Gradec Police Station for having allegedly failed to comply with the police orders. He was questioned by the police and released on 6 April 1995 at approximately half past midnight. 13.     There are two conflicting versions of what occurred during the police procedure and the transport to the police station. 1.     The applicant’s version of events 14.     According to his submissions before the Court and the statements he gave in the relevant domestic proceedings, the applicant was driving through the centre of Slovenj Gradec on the evening of 5 April 1995 when at least two cars overtook him and forced him to stop. Approximately fifteen armed officers, wearing black jackets, arrived at the scene, some of whom approached the applicant. They were shouting and the applicant, still sitting in the car but attempting to step out, put his hands up. At that moment, the officers dragged him out of the car. They pushed him to the ground, tied him up, took off his shoes, dragged him by his legs approximately 25-30 meters along the road into a dark area where they beat and kicked him for some 15 minutes. After someone had said “he’s had enough, he’s had enough”, the applicant was placed in an off-road vehicle and taken to the police station. On the way there, a journey which lasted approximately 30   minutes, two officers, sitting in the front of the car, threatened to kill him and one of them electro-prodded him several times with a stun gun. At the police station, he was put in the room for provisional detention ( prostor za pridržanje ) where one of the officers untied him at his request. The applicant was questioned and told that he had failed to comply with the police order to stop his vehicle. He was then released. In the meantime, the police also searched the applicant’s car. 15.     About thirty people were arrested and injured during the two-day operation. 2.     The Government’s version of events 16.     According to the version of events given by the Government, the police noticed a car moving at high speed. Since the conduct of the driver looked suspicious, the police decided to stop the car, to identify the driver and to perform a preventative search. For this reason, they drove after the car. The driver accelerated, prompting the police to force him to stop. 17.     When the driver, who was later identified as the applicant, stopped the car, an unspecified number of the Special Unit’s officers confronted him and informed him that this was a police procedure. The applicant jumped towards one of the officers and attempted to hit him. The officer managed to block his blow and then with the other officers forced the applicant to lean against his car in order to search him. The applicant struggled free and escaped. 18.     When the officers caught him, the applicant again tried to resist and they responded by using truncheons and gripped his elbow to handcuff him, knocking him down in the process. Since the applicant continued to resist, the officers tied his wrists with a plastic cord. They subsequently took him to the police station on suspicion of committing the criminal offence of “obstructing an official in the course of his duties” ( preprečitev uradnega dejanja uradni osebi ). The applicant was released after questioning. 19.     The officers were authorised to use force on the basis of section 54 of the Internal Affairs Act. During the operation, they wore vests with the visible sign “Police” (“ Policija ”). In their later submissions, they stated that only two officers had used force against the applicant. 20.     During the police procedure, the applicant did not request medical aid and the police only afterwards learned that he had sustained injuries. In addition, he did not complain about the conduct of the officers during the procedure. 3.     Documents concerning the relevant incident (a)     Documents from the criminal proceedings against the applicant 21.     The judgment of 12 February 2001 issued in the proceedings instituted against the applicant (see paragraph 48), established that three officers of the Slovenj Gradec Police, D.P., J.K. and M.F., who were in the car which stopped the applicant, received information about the location of a “white Golf”, believed to be being driven by the applicant, and an order to stop it. 22.     Officer J.K. testified in the criminal investigation instituted against the applicant, that they had received information that the “white Golf” had left “the place”, which meant that it had left Pik Bar . He was not able to comment on the speed of the applicant’s car. In addition, he stated that by the time a minute had gone by after the applicant was stopped, there were already four or five vehicles of the Slovenj Gradec Police and the Special Unit at the scene and that three or four officers arrived in each vehicle. 23.     Officer M.F. stated in the same criminal investigation: “We had information about individuals who were suspected members of that [criminal] organisation, and one of them was Aleksander Matko, whom I did not know since I am from Maribor, but I knew him from photographs. (...) We were on one of the streets of Slovenj Gradec when we received information that the car of Aleksander Matko had been seen and that our colleagues had tried to stop him, but he would not stop despite warnings.” 24.     Officer D.P. explained in his testimony in the above mentioned criminal investigation: “At the critical time, we were conducting, in the territory of Slovenj Gradec Police, an operation to investigate organised crime. (...) In front of the Hotel Pohorje, a group of people was noticed which included M.A. and Aleksander Matko. One of the police patrols noticed that M.A. left with the motorcycle and they also saw when Aleksander Matko drove away. In fact, everything happened very quickly (...). We placed vehicles at different locations (...). Our official vehicle, which I was driving, received a message that a white Golf was being driven by a person believed to be Aleksander Matko (...). We decided to stop him in order to search the car since there was a suspicion that he was armed.” 25.     Another officer from the Slovenj Gradec Police, I.G., who had arrived at the scene with the officers of the Special Unit and was also questioned in the criminal investigation, stated that there were 20 officers of the Special Unit and Slovenj Gradec Police at the scene, and that five of them had had direct contact with the applicant.     (b)     Medical evidence 26.     On 6 April 1995, soon after his release, the applicant was admitted to the Slovenj Gradec General Hospital where he stayed until 7 p.m. The medical report, written by a doctor in that hospital, stated that the applicant had bruises on his head, but did not include any details of the injuries. The applicant was advised to rest for a few days. 27.     Next day, 7   April   1995, the applicant sought medical aid in the Maribor General Hospital. There, he also explained to a doctor that on 5   April 1995 he had been beaten by unknown armed persons. The medical report of 7 April 1995 indicates several lesions, including: -   bruises on the right eye and a small amount of suffusion in the surrounding area; -   a haematoma on the left side of the forehead -   a painful nose; -   a 6 cm by 4 cm haematoma on the left shoulder; -   two 4-5 cm linear skin abrasions on the left side of the thorax; -   a child’s-hand-sized moderate oedema behind the right ear; -   an extensive haematoma on the left thigh. The doctors had also suspected a fracture of the right temporal bone. The report of an x-ray examination on 19 April 1995 indicated that there was a hairline fracture ( fissur a). B.     The applicant’s criminal complaint and the subsequent investigation 28.     On 7 April 1995 the applicant went to the Slovenj Gradec Police and made an oral complaint against the officers of the Special Unit concerning the events of 5 April 1995. A written statement was prepared by the officer in charge and signed by the applicant. In his statement, the applicant alleged that about eight to ten officers had dragged him to the metallic fence of the construction site behind the Slovenj Gradec Health Centre where they had beaten him, shouted at him and threatened to kill him. He further stated that while being driven to the police station he had been beaten again, and given electric shocks with the special truncheons. He had not known where the police were driving since his head was pointing downwards the whole way. He also described the injuries he had sustained during the police procedure. 29.     On 15 May 1995 the applicant lodged, through his lawyer, a written criminal complaint ( kazenska ovadba ) with the Slovenj Gradec Police against unidentified police officers for causing minor bodily harm ( lahka telesna poškodba ) and an unlawful deprivation of liberty ( protipraven odvzem prostosti ). The complaint mentions the names of two officers, D.P. and J.K., who were present at the scene but not involved in the alleged ill-treatment. The applicant proposed that the names of the officers who had allegedly ill-treated him be obtained from those officers and that criminal proceedings be introduced. 30.     On 15 June 1995 the Slovenj Gradec District Public Prosecutor’s Office ( Okrožno državno tožilstvo ) asked the applicant’s lawyer to add his client’s deposition to the file, which he did on 20 June 1995. On 21   October   1996 and 6   January 1997 the applicant’s lawyer sought information from the Public Prosecutor’s Office about the state of progress in the proceedings. 31.     In the meantime, on 14 July 1995, the Slovenj Gradec District Public Prosecutor (the “Public Prosecutor”) requested the Slovenj Gradec Police to identify the officers who had participated in the procedure against the applicant and to conduct an interview with them. Subsequently, two reports concerning the relevant police operation were submitted to the Public Prosecutor: one by the MIA on 15 November 1995 and one by the Slovenj Gradec Police on 5 February 1996. They are each approximately one page and a half long and their content corresponds to the facts as submitted by the Government. 32.     It transpires from the MIA’s report that, on 20 April 1995, the MIA had appointed a “working group” ( delovna skupina ) consisting of officers from the Slovenj Gradec Police and the MIA to assess the lawfulness of the procedures carried out by the Special Unit and the Slovenj Gradec Police. The Court has not received any documents produced or obtained by this working group, except the above-mentioned MIA report. The latter, which under the “subject” ( zadeva ) refers solely to the criminal offence allegedly committed by the applicant, reads as follows: “Further to the analysis of procedures and activities which had taken place on 4   and   5 April 1995, the working group established that all the measures and procedures were lawful and in accordance with legal powers and professional rules. (...) The procedure against Aleksander Matko was carried out by criminal investigators D.P., J.K., M.F, T.G, I.G. and officers of the MIA’s Special Unit, who were headed by M.J (...). On 5 April 1995, at 20.30, Aleksander Matko actively resisted the lawful procedure against him with the intention of preventing criminal police investigators from performing their official duties. Since their official duty could not be carried out otherwise, physical force and handcuffs were used against Matko in accordance with police powers. From the facts described above and from the contents of the criminal complaint [lodged against the applicant] it is evident that there exists a reasonable suspicion [ utemeljeni sum ] that Matko Aleksander on 5 April at 20.30 committed the criminal offence of obstructing an official in the course of his duties within the meaning of section 302/II of the Criminal Code of the Republic of Slovenia. (...) The criminal complaint of the Slovenj Gradec Police states that Aleksander Matko sustained injuries as a result of the use of force. (...) On the basis of the facts, stated in the Slovenj Gradec Police’s criminal complaint, there are no grounds for suspicion that the officers of the special working group of the Criminal Police Directorate [the officers of the Slovenj Gradec Police and the Special Unit] committed the alleged criminal offences (...)” 33.     The Slovenj Gradec Police report finds, inter alia , that D.P. and J.K. stopped the applicant’s car and that the Special Unit’s officers were under the command of M.J. It explains that the Head of the Special Unit was authorised to give statements concerning the procedure of the Special Unit. 34.     On 17 January 1997 the Public Prosecutor issued a decision dismissing the applicant’s criminal complaint. It was served on the applicant’s lawyer on 22 January 1997. 35.     In the decision the Public Prosecutor identified D.P., J.K. and M. J. as the officers accused in the applicant’s complaint. After giving a summary of the applicant’s allegations, the Public Prosecutor concluded:   “In the course of the proceedings, the additional information concerning the above-mentioned criminal complaint by the Slovenj Gradec Police and the MIA – Office of the Minister – were obtained. This enabled it to be established that the above-mentioned officers, all employees of the MIA, had participated in the procedure against the applicant. It would appear from the already mentioned report of the MIA – Office of the Minister – that the employees of the MIA acted in accordance with their powers. In addition, on 17 January 1997, a request for an investigation against Matko Aleksander was lodged with the investigating judge in the Slovenj Gradec District Court, for, among other matters, obstructing an official in the course of his duties (...). In view of the above considerations, the accused D.P., J.K. and M.J. acted in the framework of their duties and powers, which they have as employees of the MIA, and therefore there is no reasonable suspicion ( utemeljeni sum ) that they committed the alleged criminal offences (...). For those reasons, the criminal complaint must be dismissed.” 36.     The decision drew the applicant’s attention to his right to initiate a criminal prosecution as a subsidiary prosecutor (see paragraphs 55 and 58 below) within 8 days. He did not avail himself of this opportunity.       C.     The criminal proceedings against the applicant 37.     On 12 April 1995 the Slovenj Gradec Police lodged a criminal complaint against the applicant for the criminal offence of “obstructing an official in the course of his duties” under section 302, paragraph 4-1 of the Slovenian Criminal Code, which referred to the same incident as the applicant’s criminal complaint. 38.     On 17 January 1997 the Public Prosecutor requested the Slovenj Gradec District Court to open a criminal investigation against the applicant. It appears that her request was based on the above-mentioned reports of the MIA and the Slovenj Gradec Police (see paragraphs 31-33). 39.     On 8 April 1997 the investigating judge questioned the applicant. The applicant denied having committed any offence and complained that he had been beaten and ill-treated by the police. He pointed out that he had medical reports proving his injuries. The reports were included in the file. 40.     On 8 May 1997, further to a proposal of the investigating judge, the Slovenj Gradec District Court decided not to open a criminal investigation against the applicant. The court pointed out, inter alia , that the officers who were allegedly attacked by the applicant had not been identified and that the Ministry’s report, stating that a special operation for the investigation of serious crimes was in progress at that time, and the Public Prosecutor’s request for the investigation, which stated that the applicant was arrested because of his excessive speed, were contradictory.   41.     On 12 May 1997 the Public Prosecutor appealed against this decision. On 4 December 1997 the Maribor Higher Court upheld her appeal finding that, despite the shortcomings mentioned in the first-instance decision, there were sufficient grounds for suspicion that the applicant had committed the alleged offence. Accordingly, it changed the first-instance court’s decision and opened a criminal investigation against the applicant. 42.     Between 19 February 1998 and 10 March 1998 the investigating judge interviewed five officers from the Slovenj Gradec Police who had participated in the operation, the officer M.J., who had been responsible for the officers of the Special Unit, and A.K., who had allegedly witnessed the incident. When asked to comment on the applicant’s allegations, the officers either denied the alleged ill-treatment or stated that they could not have seen the events well enough. A.K. testified in favour of the applicant, saying that he had not resisted but had been seriously beaten by the officers. 43.     On 17 March 1998 the criminal investigation was concluded with the investigating judge’s decision ordering the exclusion of certain documents from the case-file in accordance with section 83, paragraph 3, of the Criminal Procedure Act. It is not known when that decision was served on the applicant. 44.     On 28 December 1998 the Public Prosecutor filed an indictment against the applicant for “attempting to obstruct an official in the course of his duties” ( poskus kaznivega dejanja preprečitve uradnega dejanja uradni osebi ). 45.     On 27 January 1999 the applicant filed an objection to the indictment. He pointed out that he had been ill-treated and referred to the statements he had previously given in the proceedings. He also mentioned that he had lodged an application with the Court. His objection was rejected by the Slovenj Gradec District Court on 16 February 1999. 46.     On 13 September 1999 and 22 November 1999 the Slovenj Gradec District Court held hearings. The court heard the applicant, and all the officers who had been questioned in the investigation and A.K. By a judgment of 22 November 1999 the court acquitted the applicant. The court, acknowledging that the applicant had sustained injuries on the relevant day, concluded that there had been “physical contact” between the applicant and the officers. The court, however, found that it had not been proven that the applicant had physically resisted the officers as described in the indictment since none of the Special Unit’s officers who had had physical contact with the applicant had been identified and there were no documents describing the conduct of the applicant after he had been stopped. 47.     On 5   January 2000 the Public Prosecutor appealed against the judgment and on 27 September 2000 the Maribor Higher Court quashed the judgment and remitted the case to a new panel for retrial. 48.     During the retrial, hearings were held on 15 December and 12   February 2001. At the second hearing the court heard a new witness, D.Č., at the applicant’s request. By a judgment of 12 February 2001, the Slovenj Gradec District Court convicted the applicant as charged and sentenced him to 3 months’ imprisonment, suspended for 3   years. The court found: “Although it was not known which officers of the Special Unit were involved in the procedure after the applicant’s car had been stopped, the officers questioned sufficiently described the acts and the order of events as observers. They could also not have been influenced by anything and therefore they could be entirely trusted. On the contrary, it was impossible to trust either of the witnesses A.K. and D.Č., since it clearly transpires from their testimony that they knew the applicant well; they also confirmed that they knew him. Although the first witness was able to describe the events immediately after the operation, D.Č.’s testimony was unclear and biased in favour of the accused since he said that the officers had beaten the accused with truncheons all over his body and shouted, while it transpired from the medical documentation that he sustained injuries only on the upper part of the body, which is usual for this sort of measure. The conduct of the accused (...) undoubtedly shows (...) all the elements of the criminal offence (...) since his conduct undoubtedly represented an active form of resistance against the police officers and force was also directed against the officers, though the latter in the interest of protecting the data concerning employees of the Special Unit were not questioned. In any event, given the sufficiently convincing testimony of witnesses questioned in the proceedings – police officers – questioning of the employees of the Special Unit was not necessary (...). ” The court also found that the applicant had not injured any of the officers involved. 49.     On 12 March 2001 the Public Prosecutor appealed against this judgment and applied for a heavier sentence. The applicant also appealed. On 9 May 2001 the Maribor Higher Court upheld the conviction but amended the judgment with respect to the costs of the proceedings. The applicant did not appeal to the Supreme Court. 50.     Lastly, on 11 October 2001 the Slovenj Gradec District Court ordered the applicant to pay an additional sum to cover the costs of one of the witnesses heard during the proceedings. On that day, the proceedings were “finally concluded” ( pravnomočno končan postopek ). II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Use of force 51.     At the material time, conditions for the use of force by the police were regulated by the Law on Internal Affairs ( Zakon o notranjih zadevah , SRS Official Gazette, no. 28/1980 with amendments, in force until 17   July   1998; hereinafter referred as the “LIA”). Section 54 of the LIA stipulated, inter alia , that a police officer could use force ( fizična sila ) in the performance of his duties to overcome the resistance of a person who refused to comply with the legal orders of the police. The Guidelines for the Use of Coercive Measures, issued by the then Secretary of the Interior ( Navodilo o uporabi prisilnih sredstev , SRS Official Gazette, no. 25/1981, in force until 24 June 2000), further specified that a police officer could in the cases referred to in section 54 of the LIA exceptionally use truncheons, punches, and means of restraint, when he encountered active resistance or an attempt to evade arrest. B.     Relevant criminal offences (as in force at the material time) 52.     In general, acts of ill-treatment resulting in physical harm are punishable under various provisions of the Criminal Code of the Republic of Slovenia ( Kazenski zakonik Republike Slovenije , Official Gazette no.   63/94) prosecution being mandatory. In the case of the offence of inflicting “minor bodily harm” prosecution is triggered by the aggrieved party’s official complaint lodged with the police or the public prosecutor. However, when minor bodily harm is caused by a public official, e.g. a police officer, this will constitute a delictum proprium , i.e. the offence of “violation of human dignity by abuse of office or official duties”, for which prosecution is mandatory: notwithstanding the absence of a complaint by the aggrieved party ( oškodovanec ). 53.     Among the offences defined by the Criminal Code, the following are relevant for the present case:   Minor bodily harm, section 133 “(1)     Whoever inflicts bodily harm on another person resulting in the temporary weakness or impairment of an organ or part of his body, his temporary inability to work, the impairment of his appearance or temporary damage to his health shall be punished by a fine or by imprisonment for not more than one year. ... (4)     Prosecution of the offence defined in the first paragraph shall be initiated upon a complaint.” Violation of human dignity by abuse of office or official duties, section 270 “An official exercising his office who, by abuse of his office or official duties, treats another person badly, insults him, inflicts minor bodily harm upon him or otherwise treats him in such a way as to affect his human dignity, shall be sentenced to imprisonment for not more than three years.” Unlawful deprivation of liberty, section 143 “(1)     Whoever unlawfully incarcerates another person or keeps him incarcerated or otherwise deprives him of the freedom of movement shall be sentenced to imprisonment for not more than one year. (2)     If the offence under the preceding paragraph is committed by an official through the abuse of office or of official authority, such an official shall be sentenced to imprisonment for not more than three years. ...” Obstructing an official in the course of his duties, section 302 “(1)     Whoever, by force or threat of imminent use of force, prevents an official from performing an official act, which he intended to perform within the scope of his official duties, or whoever in the same manner compels an official to perform an official act, shall be sentenced to imprisonment for not more than two years. ... (4)     Whoever commits the offence under the first or third paragraphs of the present section against an official exercising a task of national or public security, pursuing the perpetrator of a criminal offence or guarding a detained person, shall be sentenced to imprisonment for not more than five years.” C.     Criminal proceedings (provisions in force at the material time) 54.     Criminal proceedings in Slovenia are regulated by the Criminal Procedure Act ( Zakon o kazenskem postopku , Official Gazette no. 63/94; hereinafter referred to as the “CPA”) and based on the principles of legality and officialness; the prosecution is mandatory when reasonable suspicion ( utemeljeni sum ) exist that a criminal offence, subject to mandatory prosecution, has been committed. Section 20 of the CPA provides: “The public prosecutor shall be obliged to institute criminal proceedings if there is a reasonable suspicion that a criminal offence subject to mandatory prosecution has been committed, unless provided otherwise by the present Act.” 55.     Public prosecutions are conducted by the public prosecutor’s office, an autonomous body within the justice system (Article 135 of the Constitution of the Republic of Slovenia, Ustava Republike Slovenije, Official Gazette no.   33/91). However, when the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the proceedings, the aggrieved party has the right to take over the proceedings in the capacity of a subsidiary prosecutor ( subsidiarni tožilec ); that is as an aggrieved party acting as a prosecutor (CPA, section 19/3). A subsidiary prosecutor has, in principle, the same procedural rights as the public prosecutor, except those vested with the public prosecutor as an official authority (CPA, section 63/1). If the subsidiary prosecutor takes over the proceedings, the public prosecutor is entitled at any time pending the conclusion of the main hearing, to resume management of the prosecution (CPA, section 63/2). In reality, however, the 2002 statistics show that out of approximately five hundred cases initiated by subsidiary prosecutors at a number of first-instance courts between 1997 and 2002 most were either still pending or had ended in favour of the accused; in eleven cases the accused was convicted and in seven cases the proceedings were handed over to the public prosecutor (see paragraph 72 below). 56.     Slovenian criminal proceedings are divided into three stages – preliminary proceedings ( predkazenski postopek ), conducted by the police and the public prosecutor; criminal investigation ( preiskava ), conducted by the investigating judge of the district court, and trial ( glavna obravnava ), conducted before mixed panels of professional judges and lay-judges at district court level or a single professional judge of the local court. Proceedings falling under the jurisdiction of local courts (offences punishable by a fine or imprisonment of not more than three years) are summary proceedings ( skrajšani postopek ), which do not include the stage of a criminal investigation. 57.     Preliminary proceedings are initiated either upon a criminal complaint lodged by any person with the police or the public prosecutor (CPA, section 147) or upon the police or the public prosecutor being informed by any means whatsoever of a situation that gives rise to “reasons for suspicion” ( razlogi za sum ), i.e. less than reasonable suspicion, that an offence which is subject to mandatory prosecution has been committed. In this respect, paragraph 1 of section 148 of the CPA provides:   “If there are reasons for suspicion that a criminal offence subject to mandatory prosecution has been committed, the police shall be obliged to take steps necessary for pursuing the perpetrator, ensuring that the perpetrator or his accomplice do not go into hiding or flee, discovering and securing traces of crime or objects of value as evidence, and collecting all information that may be useful for the successful management of criminal proceedings.”   In addition, paragraph 2 of section 161 of the CPA reads as follows:   “If the public prosecutor is unable to infer from the criminal complaint whether the allegations contained in it are probable, or if information in the criminal complaint does not provide sufficient basis to request investigation, or if the public prosecutor has only been informed about a criminal offence and, in particular, if the perpetrator is not known, the public prosecutor may request the police to collect the necessary information which he cannot collect himself or through other agencies and to take other measures in order to discover the criminal offence and the perpetrator (sections 148 and 149). The public prosecutor shall be entitled to ask the police at any time to notify him of what they have undertaken and they shall be under an obligation to reply without delay.” In the preliminary proceedings, most of the activities are carried out by the police, who, like the public prosecutor, do not have discretion as to whether to act (CPA, section 148), i.e. they must pursue the investigation ex-officio . However, it is the public prosecutor’s statutory right and duty to ensure that the facts are sufficiently investigated in order to decide whether or not there should be a prosecution (CPA, sections 20, 45 and 161/2). 58.     If the evidence from the criminal complaint is inconclusive or if the perpetrator is not identified, the public prosecutor may request the police to collect further necessary information and report back to him or her on the results (CPA, section 161/2, above). When, even after such additional measures were taken, the public prosecutor concludes that there is no reasonable suspicion ( utemeljeni sum ) that a specific person committed a criminal offence or the perpetrator cannot be identified, the criminal complaint must be dismissed (CPA, section 161/4). Following the dismissal of the criminal complaint, the public prosecutor must within eight days notify the aggrieved party of the dismissal (CPA, section 161/1). 59.     Conversely, when the standard of reasonable suspicion is satisfied, the investigating judge, upon the request of the public prosecutor or subsidiary prosecutor, opens a criminal investigation into the alleged criminal offence (CPA, sections 167 and 186). The prosecutor’s request for investigation must specify, inter alia , the person against whom an investigation is requested (CPA, section 168). The investigation is conducted only for the criminal offence and only against the accused specified in the investigating judge’s decision opening the investigation. However, if during the investigation a suspicion is raised of another criminal offence or of another suspect, the investigating judge must notify the public prosecutor thereof. Paragraph 2 of section 175 of the CPA provides as follows: “If, in the course of investigation, it appears that the proceedings should be expanded to cover another criminal offence or an offence against another person the investigating judge shall notify the public prosecutor accordingly. In this case investigative acts that call for urgent attention may be performed and the public prosecutor should be informed of everything that has been done.” 60.     The investigating judge may at any time during the investigation terminate the proceedings if he determines that the act under investigation is not a criminal offence or if there is not enough evidence that the accused has committed a criminal offence (CPA, section 181). 61.     At the end of investigation, when the investigating judge decides that a case has been investigated to the extent that an indictment can be made out, he must send the case-file to the public prosecutor (CPA, section 184). Before doing that he must eliminate from the case-file all contaminated evidence (exclusionary rule). He must also eliminate from the file all information obtained by the police directly from the accused and from certain other persons in the preliminary proceedings: such information is denied the status of legitimate evidence and cannot constitute the basis of the indictment or the judgment (CPA, section 83). 62.     In summary proceedings before a local court, the criminal proceedings start with the bill of indictment ( obtožni predlog , CPA, section   430) submitted by the prosecutor. The bill of indictment has to include the name and surname of the defendant, with his personal data if known, and a description of the criminal offence (CPA, section 434). Before lodging the bill of indictment, the public prosecutor or subsidiary prosecutor can request the judge to perform individual investigative measures (CPA, section 431). D.     Civil remedy 63.     Article 26 of the Slovenian Constitution provides: “Everyone has the right to compensation for damage caused through unlawful actions in connection with the performance of any function or other activity by a person or body performing such function or activity under state authority, local community authority or as a bearer of public authority. Any person having sustained damage also has the right, in accordance with the law, to demand compensation directly from the person or body that has caused the damage.” 64.     The compensation claim may be pursued in civil litigation. In these proceedings, the courts are bound by the final criminal court’s judgment of conviction but only in so far as the existence of the criminal offence and criminal liability are concerned (section 12 of the Civil Procedure Act, Zakon o pravdnem postopku , SFRJ Official Gazette no. 4-37/77 with amendments, valid until 14 July 1999). In addition, the aggrieved party may lodge his compensation claim within the on-going criminal proceedings against the perpetrator ( premoženjsko-pravni zahtevek, sections 100-111 of the CPA). 65.     The statistical overview provided by the Government in their observations of 2 April 2002 shows that out of all registered civil claims submitted by aggrieved persons who had been injured during police procedures prior to 2002, forty-nine civil claims had been settled or withdrawn and sixty-seven civil claims were still pending. As to the first group of cases, the statistics are inconclusive; sixteen cases were transferred to the State Attorney Office ( državno pravobranilstvo ) and fifteen were settled during the preliminary proceedings. However, no information is provided as to their outcome. As to the remainder of the first group of cases, one case was settled out of court, two discontinued, five cases were decided against the plaintiff and five claims were wholly or partly upheld. In five cases no information as to the stage of proceedings or their outcome has been provided. E.     Constitutional Court’s decision of 6 July 2006 (Up-555/03-41 and Up-827/04-26) 66.     On 6 July 2006 the Constitutional Court ( Ustavno sodišče ) delivered a decision in a case concerning a person who had died during a planned police operation and alleged interference with several constitutional rights of the deceased and his wife. The Constitutional Court found a violation of the right to the effective protection of human rights, as provided by Article 15 of the Slovenian Constitution, taken together with Article 13 of the Convention, on account of a failure by the authorities to conduct an independent investigation into the incident. The Constitutional Court established (paragraph 33 of the decision):   “Article 15 paragraph 4 of the Slovenian Constitution should be interpreted so as to include also a right to independent investigation of the circumstances of an incident where a person was allegedly subject to torture or inhuman or degrading treatment by the police ( državni represivni organi ) or where he or she lost his or her life during a police operation. The aforementioned right includes also the effective access of aggrieved parties to such investigation. Despite the fact that Article 15 paragraph 4 of the Constitution secures the right to judicial protection of human rights, it suffices in the situations concerned, according to the (aforementioned) jurisprudence of the European Court of Human Rights in respect of Article 13 of the Convention, that the investigation is conducted outside of judicial proceedings under the condition that it is independent and provides for the effective access of aggrieved parties.” THE LAW I.     THE SCOPE OF THE CASE 67.     In his application, the applicant complained of ill-treatment, of an inadequate response by the authorities to his allegations, that his arrest and detention had been unlawful, and, in general, of the unfairness and the length of the proceedings concerning the incident. At the time of the lodging of his application, the criminal investigation against the applicant had been conclud