CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 22 février 2011

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She is represented before the Court by Mr A. Perlesi, a lawyer practising in Rrubik, Mirditë. The Albanian Government (“the Government”) are represented by their Agent, Mrs E. Hajro. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The death of the applicant’s son 3.     The applicant’s twin sons, C and E, were born on 8 June 1987. 4.     On 6 May 2004 the applicant’s sons were detained by the Rrubik police force and placed in custody on suspicion of robbery. On 9 May 2004 the Mirdita District Court validated their detention. 5.     The applicant’s sons shared a cell with two other inmates, K and B. On 5 July 2004 the applicant’s son, E, and his cellmate, K, began to fight. The on-duty guard, G, alerted the control centre with a view to restoring order in the detention cell. V, the control centre officer, opened the door of the cell and took E and K to the interrogation room of the pre-trial detention facility for questioning. G escorted V and the two detainees. 6.     Upon questioning both detainees about the fight, V left the interrogation room to question the other two inmates who had been in the same cell. G remained with E and K in the interrogation room, where E agreed to make peace with K provided he was not made to share the cell with K. This request was refused by G who began arguing with E, as a result of which E was slapped hard on his face and neck and shoved out of the room. In the corridor, on the way to his cell, E lost consciousness and fell to the ground. 7.     When E regained consciousness, he complained about a painful headache, nausea and generally poor state of health. He was taken to the Rrëshen hospital in the afternoon of the same day. His personal medical file stated that: “the patient has a police escort and is complaining of a slight headache. His overall condition is good... he is conscious and can respond to questions.” 8.     E was provided with light sedatives ( sal glukozë 5%, sal fizioligjik 09% dhe analgin i amp. ) and he left the health centre at 7 p.m. on the same day. He was taken back to the pre-trial detention facility. 9.     Upon return to the pre-trial detention facility, he continued to complain about a painful headache, nausea and overall weakness. At 3 a.m. on 6 July 2004 he lost consciousness and was brought, as a matter of urgency, to the Rrëshen hospital. His personal medical condition was assessed and his personal medical file contained the following passage: “The patient, who was brought from the police commissariat to the emergency ward, is in a serious condition. He is pale. It is not possible to communicate with him. He is nauseous and has vomited, he has a low pulse rate ... From the preliminary information, it would appear that the patient has been beaten up while in the pre-trial detention facility.” 10.     The doctors decided to send him for specialised treatment at the Tirana Military Hospital. The applicant submitted that E had lapsed into a coma by the time he was transported by ambulance to Tirana. Transportation by air was impossible. E died at 4 p.m. on 8 July 2004. 11.     E’s death certificate indicated that he had suffered from “ beatings with a hard, bruising, blunt object ” which led to his death as a result of “ cerebral haemorrhage and epidural haematoma ”. 2.     The criminal investigation 12.     On 7 July 2004, following the notification of the fight between inmates, a report on the inspection of the scene was drafted. 13.     On 8 July 2004 the expert medical report stated that E had lapsed into a coma as a result of a collision with hard objects. The report further stated that the damage caused was life threatening and was in the category of serious injuries. 14.     On the same date, following the death of the applicant’s son, the prosecutor opened a criminal investigation. He also ordered a forensic medical report so as to provide answers to the following questions: “1. What injuries are to be found on the corpse of Eriguert Ceka? 2. What was the cause of his death?” 15.     On 9 July 2004 G and V were suspended from work. 16.     On 10 July 2004 G and V were detained in custody. G was accused of breaching the rules on on-duty service ( shkelja e rregullave të shërbimit të rojes ) in accordance with Article 41 § 2 of the Military Criminal Code (“MCC”). V was accused of violating the escort rules ( shkelja e rregullave të shoqërimit ) in accordance with Article 44 § 1 of the MCC. On 12 and 13 July 2004 the Mirdita District Court validated their detention. 17.     The forensic expert, who carried out a post-mortem examination of E, issued his report on 13 July 2004. The external examination of the body revealed, inter alia : “Over the right temple, there is a stitched wound ( plagë operatore e suturuar ) in the shape of an “L”. It has its base on the upper side of the head, measuring 3 cm and having 3 stitches. The long line of the “L” is in a horizontal direction, measuring 8 cm and having 7 stitches ( sutura, qepje ). At a distance of 2 cm from the angle of the shape of “L”, there are two parallel dry wounds ( plagë drenimi ), in a vertical direction, 1 cm apart from each-other, measuring 1 cm each and having 1 stitch.” 18.     The report provisionally concluded that death had been caused by a fracture of the base of the skull, epidural haematoma and cerebral haemorrhage, inflicted by a hard, flat, blunt object with a relatively high intensity ( me mjet të fortë mbretes, jo të mprehtë, me sipërfaqe goditëse të sheshtë dhe me intensitet relativisht të lartë ). The report provided that the above injuries which led to the death of the applicant’s son could have been caused by his falling on the floor, on the right side of his skull. The final determination of E’s death would be given after a microscopic examination of the corpse. 19.     On 13 July 2004 the Mirdita prosecutor’s office, relying on Articles 74, 75, 84 and 89 of the Code of Criminal Procedure (“CCP”), declared that it lacked jurisdiction and transferred the case to the Tirana prosecutor’s office. 20.     On 21 July 2004, following the microscopic examination of E’s corpse, the forensic expert concluded that E’s death had been caused by the contusion of the brain when the right hand side of his head hit the floor. 21.     On 8 October 2004 the prosecutor filed a bill of indictment against G and V with the Tirana Military District Court (“the Military District Court”). Witnesses’ statements 22.     On 7 July 2004 witnesses K and C and police officers G and V made statements concerning the incident. 23.     K stated that G had slapped the victim on the face after exchanging words. As the victim left for his cell, he collided with the wall in the corridor and lost consciousness. He added that he had remained in the interrogation room together with G. 24.     C stated that he ran out of the cell to help his brother after hearing him collapsing on the floor. He noticed that he had been injured on his right arm and had the mark of five fingers on his face. Although, afterwards, he had attempted to get more information from his brother about the events, the victim had remained silent, lying on the bed. 25.     G stated that he had seen E and K fist-fighting. In the interrogation room, G had noticed traces of violence on E’s face. He further stated that C and E had changed rooms even before the incident owing to bickering with other inmates. G added that after regaining consciousness, E told him that he had felt dizzy and had collided with the wall. 26.     V stated that the victim’s face had become red possibly as a result of his fight with K. He had neither seen nor heard G hit the victim. 27.     On the same date, an expert medical report was ordered on the state of health of the applicant’s son. 28.     On 11 July 2004 K made another statement to the prosecutor, which, in so far as relevant, read as follows. “... the latter [G] immediately slapped him [E] two to three times on the face with both hands ... told him to stand up and grabbed him by the arm to take him to the cell. At this moment, he gave him another slap on the neck and a kick on his bottom, forcefully shoved him out of the interrogation room as he [E] did not accept to go to the cell. I continued to stay in the [interrogation] room and witnessed all these actions. After G took E out of the interrogation room ... he continued to slap him as I heard the sound of the slap and E asked not to hurt him. E made this statement on his way out of the interrogation room. As mentioned above, when G took E out of the interrogation room, I heard the slap and, in a matter of seconds, a tumult which sounded like the collapse of a person against an object. At this moment, I heard C’s voice crying ‘what happened to my brother’ and ran out of the room into the corridor.” 29.     On 11 July 2004 B made a statement to the prosecutor. He stated that after the fight, there was no sign of injury on E’s face, whereas K had a scratch on his left eyebrow. When both E and K were brought back to the room, B added that E had a swollen temple and was not able to speak. 30.     Between 13 July and 8 September 2004 at least two police officers and six medical officers made statements concerning the incident and E’s state of health. The medical officers stated that they had not been informed of the causes that had prompted E’s initial hospitalisation. At least one inmate made a statement about what he had heard at the time of the incident. 3. The judicial proceedings 31.     On 13 October 2004 the Military District Court decided to hold the first hearing on 28 October 2004. (a) Judicial proceedings against V 32.     On 28 October 2004 the Military District Court granted V’s request for use of the summary procedure and decided to disjoin the proceedings and examine separately the charges against him. 33.     On 4 November 2004 V was dismissed from the police force for abuse of duty resulting in the death of a detainee in pre-trial detention. 34.     On 8 November 2004 the Military District Court found V guilty of breaching the escort rules under the first paragraph of Article 44 of the MCC as he was not supposed to intervene and escort inmates to the interrogation room by himself. The trial court sentenced him to ten months’ imprisonment. In accordance with the summary procedure, the sentence was commuted to six months and twenty days’ imprisonment. 35.     The decision became final on an unspecified date, no appeal having been filed against it. (b) Judicial proceedings against G 36.     On 4 November 2004 G was dismissed from the police force for abuse of duty resulting in the death of a detainee in pre-trial detention. 37.     On 18 November 2004 the Military District Court granted G’s request for the use of summary procedure. 38.     In his final conclusions of 7 December 2004, G requested the trial court to find him not guilty. 39.     On 10 December 2004 the Military District Court found G guilty of breaching the on-duty service rules under the first paragraph of Article 41 of the MCC as he was not supposed to abandon his working place without the prior accord of his supervisor or without having been replaced by another guard. However, the trial court did not find any conclusive evidence that the death of the applicant’s son had resulted from G’s acts. It considered a number of other scenarios which could have contributed to the death such as an attempt by E to kill himself, the blows from the fight he had had with K, or a collision with the wall in the narrow corridor as a result of which he lost consciousness. The court stated that K’s statement of 11 July 2004 was given out of fear as a result of E’s death. The court regretted that no prompt medical intervention, notably an X-ray of the victim’s head, had been provided. Finally, the trial court sentenced G to one year’s imprisonment. In imposing that sentence, the court had regard to G’s professional behaviour at work, his exemplary role as a father and breadwinner and the inappropriate conditions of the cells at the detention centre and their overpopulation. In accordance with the summary procedure, the sentence was commuted to eight months’ imprisonment. 40.     On an unspecified date the prosecutor and G appealed. The prosecutor sought a requalification of the criminal offence in accordance with Article 41 § 2 of the MCC, whereas G appealed against his conviction. 41.     On 18 January 2005 the Tirana Military Court of Appeal (“Court of Appeal”) changed the qualification of the criminal offence in accordance with the second paragraph of Article 41 of the MCC and sentenced G to 3 years’ imprisonment.   In accordance with the summary procedure, the sentence was commuted to two years’ imprisonment. The Court further ordered G’s conditional release for two years as he had served the sentence imposed in accordance with the first paragraph of Article 41 of the MCC and had already been released. The Court of Appeal judgment read, in so far as relevant, as follows. “It transpires from the case file that on 5 July 2004, at the time when G was on duty, the inmates of cell no. 6, E and K, had a fight. In order to clarify the cause of the fight the inmates were brought to the interrogation room. During their stay in the room the victim exchanged offensive words with G, whereupon the latter slapped him and took him out of the room, despite E’s refusal to comply. The victim’s refusal to return to cell no. 6 made G kick him from behind. As a result, the victim lost his balance, hit the wall and then collapsed on the floor, thus losing consciousness. In these circumstances, the victim was taken to the hospital for medical treatment and was later returned to the pre-trial detention facility. The fact that E was hit by the accused was proved by K’s statements which were made on 7 and 11 July 2004. This fact was also substantiated by the victim’s brother’s statement (...) In these circumstances, the accused’s unlawful acts of violence have caused the victim’s death, a serious consequence, as a result of which the accused should be sentenced in accordance with Article 41 § 2 of the MCC (...) ... the accused should be declared guilty on the basis of Article 41 § 2 of the MCC and be sentenced to three years’ imprisonment. By virtue of Article 406 of the Code of Criminal Procedure, one third of the sentence is reduced and he should be sentenced to two years’ imprisonment. Since the accused has completely served the sentence imposed by the court pursuant to Article 41 § 1 of the MCC and has been released, he should be conditionally released for two years to serve the remainder of the sentence ( meqenëse i pandehuri e ka kryer plotësisht dënimin e dhënë nga gjykata për paragrafin e parë të nenit 41 të K.P.Ushtarak dhe aktualisht është i lirë, pjesa e mbeture duhet t’i jepet me kusht për dy vjet kohë ). ” 42.     The decision became final, no appeal having been filed against it. (c) Request for information by the applicant 43.     On 5 June 2005 the applicant wrote to the General Prosecutor’s Office. She stated that she had no information about any criminal investigation and requested the authorities to inform her about the state of proceedings. 44.     On 1 July 2005, the General Prosecutor’s Office replied to the applicant’s letter and stated that the trial proceedings concerning the investigation into her son’s death were pending before the Tirana Military Court of Appeal. 4. Civil action for damages 45.     On an unspecified date the applicant brought a civil claim against the Mirdita police commissariat seeking compensation for non-pecuniary damage for the death of her son. On 23 January 2007 the Mirdita District Court awarded her 2,301,750 leks (ALL), approximately 17,257 euros (“EUR”) at the material time. The Mirdita District Court accepted that, while in detention, the applicant’s son had been beaten up by police officers. It observed that the police officers did not promptly inform doctors of the causes of E’s deteriorating health. Neither his family nor his representative had been informed in a timely manner. Furthermore, his state of health had not been reflected in the prison medical records. In the District Court’s view, the above circumstances engaged the direct responsibility of the police commissariat for the death of the applicant’s son. The police commissariat had failed to respect and adhere to the necessary procedures. 46.     On 31 January 2008, following an appeal by the defendant, the Tirana Court of Appeal upheld the Mirdita District Court’s decision of 23 January 2007. 47.     On 31 March 2009 the Government informed the Court that an appeal by the defendant was currently pending before the Supreme Court. 48.     On 12 February 2010 the Government informed the Court that the applicant’s claim for compensation for non-pecuniary damage had been paid in full on 11 December 2009. They provided the relevant supporting documents for this purpose. B.     Relevant domestic law and practice 1. The Constitution 49.     The relevant provisions of the Constitution read as follows. Article 21 “The life of the person is protected by law.” Article 25 “No one shall be subject to torture, cruel, inhuman or degrading punishment or treatment.” Article 44 “Everyone has the right to rehabilitation and/or compensation in compliance with the law in the event that he has experienced damage owing to an unlawful act, action or the omission of the State authorities.” 2. Code of Criminal Procedure (“the CCP”) 50.     Article 74 of the CCP provides that the District Court has jurisdiction to try any criminal offences, except for those falling within the jurisdiction of the Military Court. According to Article 75 of the CCP, the Military Court has jurisdiction to try military servicemen, war prisoners and other persons, in respect of criminal offences provided for in the Military Criminal Code. Pursuant to Article 84 of the CCP, the prosecutor, during the criminal investigation or following its conclusion, may decide that he lacks jurisdiction and transfer the case to the competent prosecutor’s office. In the event of disagreement, the senior prosecutor ( prokurori më i lartë ) decides. 51.     The summary procedure is governed by sections 403-406 of the CCP. The accused or his representative should make a request in writing for the use of a summary procedure, which is based on the assumption that the case can be decided on the basis of the case file as it stands at the investigation stage, without submitting it to judicial examination. If the court grants the accused’s request for summary procedure, when giving its decision on the merits, it reduces the penalty by one third. Life imprisonment is commuted to twenty-five years’ imprisonment. Both the prosecutor and the accused may appeal against the court’s decision. 52.     The Supreme Court’s unifying decision No. 2 of 29 January 2003 stated, in so far as the summary procedure is concerned, the following. “... The summary procedure is important for the sake of judicial economy, because it simplifies and abridges the procedure, increases the expediency and effectiveness of a judicial examination and, consequently, results in a benefit to the accused by reducing his penalty by one third and by not imposing a sentence of life imprisonment. It is important to underline that this benefit should not be to the detriment of justice. For this purpose, the court accepts the accused’s request only when it is persuaded that it could resolve the case on the basis of the case file as it stands, without submitting it to judicial examination. ... The essence of the summary procedure is to admit the documents as collected during the criminal investigation and to avoid the consideration of other evidence at a hearing and the arguments relating thereto. ...   The collection of other evidence and requests relating to their invalidity are not part of the summary procedure. The law provides that the case shall be resolved on the basis of the case file as it stands, which implies a mutual acknowledgment of acts and documents by the parties. It is the court’s obligation to assess whether a decision could be taken on the basis of the case file as it stands, without undermining justice and interfering with the lawful interests of the accused. The trial proceeds with the submission of the parties’ final conclusions, which make reference to the case file as it stands ... and the court takes a decision based thereon. If the parties complain about the invalidity of acts or documents, the court should revoke its decision for use of a summary procedure and order the continuation of a normal judicial examination.” 3. Military Criminal Code (“the MCC”) 53.     Article 2 stipulates that Albanian nationals who commit a criminal offence in the field of defence shall be sentenced on the basis of the MCC. Under Article 6 ‘military serviceman’ refers to a person serving in the Armed Forces. 54.     Other relevant provisions of the Military Criminal Code read as follows: Article 14 – Application of provisions of Chapter II of the Criminal Code to military officers “When a military officer commits a criminal offence which is not specified in this Code, he shall be liable on the basis of the provisions of the Criminal Code.” Article 41 – Breach of on-duty service rules “... 2. Breach of on-duty service rules, when it has resulted in serious consequences, shall render the offender liable to a sentence of imprisonment of between 2 and 8 years. ...” Article 44 - Breach of the escort rules “1. Breach of the escort rules by the military officer responsible for this duty constitutes a criminal offence and shall render the offender liable to demotion, a fine, dismissal from work or a sentence of imprisonment not exceeding two years. ....” 55.     In its unifying decision no. 2 of 30 June 2004, the Supreme Court Joint Benches held that police officers, who have committed criminal offences in the line of duty, shall be liable to the provisions of the MCC, in the absence of special provisions to be found in the Criminal Code. The relevant parts of the unifying decision read as follows. “Article 56 of ... the State Police Act lays down that ‘the police officer shall be made subject to the civil-criminal jurisdiction. For criminal offences committed during the discharge of his duties, he shall be made liable to the special provisions envisaged in the Criminal Code.’ Article 68/2 states that ‘until the enactment of [special] provisions referred to in Article 56 of the [State Police] Act, the police officer, in so far as criminal offences have been committed during the discharge of his duties, shall be made subject to the provisions of the Military Criminal Code.’ It transpires from these two provisions and the law as a whole that, even though police officers are treated on the basis of the status of military serviceman of the Armed Forces, they are made subject to civil-criminal jurisdiction instead of military jurisdiction. However, having regard to the particularities of the State Police, special provisions in the Criminal Code with a view to governing the criminal responsibility of police officers were to be drawn up. To date, such provisions have not been adopted. Consequently, pending their adoption, police officers who have committed criminal offences in the line of duty are subject to the Military Criminal Code. This is expressly provided for by law, as mentioned above. This transitional status of the position of a police officer concerning his criminal responsibility ... leads the Supreme Court Joint Benches to conclude that a police officer who commits criminal offences in the line of duty, pending the enactment of special provisions in the Criminal Code, shall be made subject to and held answerable to the provisions of the Military Criminal Code. For the time being, they are subject to criminal proceedings under the Military Criminal Code in respect of criminal offences committed in the line of duty.” COMPLAINTS   56.     The applicant complained under Article 2 of the Convention about her son’s death and the lack of an effective investigation. 57.     Under Article 3 of the Convention, she complained that her son had been ill-treated by police officers and that the authorities had not undertaken an effective investigation into the alleged ill-treatment. THE LAW 58.     The applicant complained of a violation of the substantive and procedural aspects of Articles 2 and 3 of the Convention. A. Alleged violation of the substantive and procedural aspects of Article 2 of the Convention 1. The parties’ submissions 59.     The Government argued that the applicant brought civil proceedings as a result of which she was awarded damages. In their view, the applicant could not claim to be a victim of a substantive violation of Article 2 of the Convention. 60.     They submitted that the prosecutor promptly opened an investigation into the death of the applicant’s son. The investigation was conducted within a short time. In this connection, two police officers were promptly arrested, prosecuted and convicted by domestic courts. Moreover, they were dismissed from the police force. According to domestic legislation, the prosecutor was not obliged to inform the next-of-kin about the conduct and progress of the investigation. 61.     The applicant maintained that although an investigation was opened into the death of her son, it was superficial and deficient. For example, in her view, the real reasons for the death of her son were never investigated; the police officers failed to take her son to hospital promptly. Even when he was taken to hospital, they concealed the truth about the causes of his medical condition from the medical staff. The applicant submitted that the prosecutor was obliged to notify the injured party about the conduct of the criminal investigation. The applicant further took issue with the charges brought against G and V and the lenient sentences they received. 2. The Court’s assessment 62.     The Court has examined the submissions of the parties and considers that the Government’s objection about the applicant’s ‘victim’ status should be joined to the merits of the applicant’s complaints under the substantive aspect of Article 2 of the Convention. It further notes that the applicant’s complaint under the procedural aspect of Article 2 is not manifestly ill-founded. No other ground for declaring these complaints inadmissible having been established, the Court therefore declares the complaints admissible. B. Alleged violation of the substantive and procedural aspects of Article 3 of the Convention 1. The parties’ submissions 63.     The Government maintained that the applicant had not exhausted domestic remedies as she could have lodged a civil claim for compensation against the police officers. They submitted that the applicant’s son was not subjected to ill-treatment. There was no evidence in the case file that linked the death of the applicant’s son to the actions of the police officers. 64 .     In their further comments, the Government accepted that a police officer had ill-treated the applicant’s son which resulted in E’s death. They noted that the actions of the police officer were unlawful and had never been condoned by the authorities. 65 .     In their further comments the Government submitted that no special investigation was opened into the allegation that the applicant’s son had been ill-treated. The investigation and conviction of G by the domestic courts had made the conduct of a separate investigation into the allegations of ill-treatment unnecessary. 66.     The applicant submitted that she had lodged a compensation claim. Additionally, on 5 June 2005 she had written to the GPO to enquire about the progress in the proceedings. 67.     The applicant submitted that her son had died as a result of torture inflicted by police officers and that no investigation had been conducted into this allegation. 2. The Court’s assessment 68.     The Court has examined the submissions of the parties and considers that the Government’s objection about the non-exhaustion of domestic remedies should be joined to the merits of the applicant’s complaints under the substantive aspect of Article 3 of the Convention. It further notes that the applicant’s complaint under the procedural aspect of Article 3 is not manifestly ill-founded. No other ground for declaring these complaints inadmissible having been established, the Court therefore declares the complaints admissible. For these reasons, the Court unanimously Discontinues the application of Article 29 § 1 of the Convention to the case; Declares the application admissible, without prejudging the merits of the case.   Lawrence Early   Nicolas Bratza     Registrar   President