CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 juin 2012

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page-break-inside:avoid; page-break-after:avoid; font-size:14pt }       SECOND SECTION             CASE OF HAJNAL v. SERBIA   (Application no. 36937/06)           JUDGMENT     STRASBOURG   19 June 2012       FINAL   19/09/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hajnal v. Serbia , The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Françoise Tulkens, President,   Dragoljub Popović,   Isabelle Berro-Lefèvre,   András Sajó,   Guido Raimondi,   Paulo Pinto de Albuquerque,   Helen Keller, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 29 May 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 36937/06) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Tihomir Hajnal (“the applicant”), on 27 July 2006. 2.     The applicant was represented by Mr V. Juhas Đurić (“V.J.Đ”), a lawyer practising in Subotica. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 3.     The applicant alleged that he had suffered numerous violations of Articles 3, 5, 6 and 8 of the Convention, all in the criminal justice context. 4.     On 22 September 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1985 and lives in Subotica, Serbia. A.     The events of 8 August 2005 6.     On 8 August 2005 the applicant was arrested by the Subotica police and brought to their station concerning an alleged burglary. In their report the police stated that the applicant, together with a number of others, had been caught after the act and that several objects used for the commission of the alleged crime had been seized. The applicant gave a statement to the officers. According to the minutes of his interrogation, the applicant confessed to one count of attempted burglary, and then signed the document using his nickname, notwithstanding a prior reference in the same minutes noting that he was “illiterate”. The minutes further stated that, pursuant to Article 177 of the Code of Criminal Procedure (see paragraph 60 below), the applicant had read them, at his own request, and had had no objections. B.     The events of 17 August 2005 7.     On 17 August 2005, at around 4.00 a.m. according to his own estimate, the Subotica police again brought the applicant, together with several others, to their premises in order to question him about a criminal offence. There was no prior attempt to serve him with the summons. The Government maintained that the reason for this had been the danger that the applicant might otherwise have absconded or tampered with the evidence. 8.     The applicant maintained that his lawyer, V.J.Đ., had been informed of this arrest by his relatives and had hence managed to arrive in time to briefly talk to him before the interrogation. The applicant apparently told V.J.Đ. that he had already been physically abused by the police, who had attempted to obtain his confession. V.J.Đ. himself stated that the applicant had seemed “mentally broken” and had been walking with a limp. 9.     The subsequent police interrogation began at 1.35 p.m. and ended by 1.40 p.m., at which point the applicant was released. The Municipal Public Prosecutor ( Opštinski javni tužilac ) had been informed of the hearing at 8.30 a.m., but did not attend it. In the course of the interrogation the applicant was asked to give a statement concerning “a burglary of a store in Veliki Radanovac”. The applicant, however, declined to do so and noted that he had retained V.J.Đ. as his legal counsel. The minutes of the interrogation further stated that the applicant was “illiterate”, and bore his fingerprint instead of a signature. With reference to Article 177 of the Code of Criminal Procedure, the minutes, lastly, noted that the applicant had read them, at his own request, and had had no objections. The minutes were also signed by V.J.Đ. 10.     The applicant maintained that he had been provided with no food whilst in police custody. C.     The events of 18 August 2005 11.     On 18 August 2005, at around 4.00 a.m. according to the applicant’s own estimate, he was brought, yet again, by the Subotica police to their premises, without having been previously summoned. The Government maintained that, just like before, the reason for this had been the danger that the applicant might otherwise have absconded or tampered with the evidence. 12.     The applicant claimed that he had once again been beaten by the officers who had attempted to obtain his confession. The applicant apparently asked that V.J.Đ. be informed of his arrest, but the police ignored this demand. Instead, the applicant was provided with a legal aid lawyer, N.D., who, it is claimed, appeared only briefly to sign the minutes of the interrogation and left shortly thereafter. 13.     The minutes in question contained: (i) an indication that the applicant was being charged with numerous counts of burglary; (ii) his detailed confession of how he had committed those offences; (iii) his statement to the effect that he did not want to retain V.J.Đ. as his legal counsel; and (iv) his declaration that he had given his statement in the absence of “any physical or mental coercion”. 14. The minutes further noted the questions posed by N.D., including whether the applicant was trying to protect anyone with his confession. The Municipal Public Prosecutor had been informed of the hearing on 17 August 2005 at 12.20 p.m., but did not attend it. Finally, the minutes stated that the applicant was “illiterate”, but then went on to note, with reference to Article 177 of the Code of Criminal Procedure, that he had read them, at his own request, and had had no objections. The applicant did not sign the minutes, having instead left his fingerprint. The interrogation lasted between 2.40 p.m. and 3.40 p.m., following which the applicant was released. 15.     The applicant maintained that he had been provided with no food whilst in the police station. D.     The events of 24 August 2005 16.     On 24 August 2005, at around 5.15 a.m. according to his own estimate or at 9.00 a.m. according to official records, the police arrested the applicant once more, but, this time, ordered his detention for a period of 48 hours. The applicant received no prior summons. He was, however, provided with a detention order, which stated that he had been deprived of his liberty on suspicion of having committed numerous burglaries. The order relied on a number of provisions of the Code of Criminal Procedure (see paragraph 57 below), but did not contain any substantiation as to the factual circumstances warranting the applicant’s detention or his prosecution. 17.     On the same day the police issued a report supplementing the criminal charges against the applicant, as well as another three defendants, concerning thirteen separate counts of burglary. The report included, inter alia , a description of the crimes and referred to the evidence obtained. 18.     On the same day V.J.Đ. lodged an appeal on behalf of the applicant. Therein, inter alia , he maintained that the impugned detention order had been merely a template devoid of any meaningful reasoning. V.J.Đ. further informed the investigating judge that, following her son’s detention, the applicant’s mother had been contacted by a lawyer who had offered his services. In particular, the lawyer had said that he knew that the applicant had already retained V.J.Đ. but explained that it would be better for him to change legal counsel as this would facilitate his release from police custody. 19.     On the same day the investigating judge of the Municipal Court ( Opštinski sud ) in Subotica rejected the above appeal. She recalled, inter alia , that on 18 August 2005 the applicant had been heard in the presence of his legal aid lawyer, that the prosecuting authorities had obtained several witness statements incriminating the applicant, and that the applicant had both been convicted of crimes in the past and had “continued committing crimes” thereafter. The judge lastly specified that there were six separate criminal cases pending concurrently against the applicant before the Municipal Court in Subotica, indicating that he had “committed” several property-related crimes in a short period of time. This, in turn, meant that, if released, the applicant was likely to re-offend and/or abscond. 20.     Lastly, on the same day the applicant was examined by the on-duty doctor of the District Prison ( Okružni zatvor ) in Subotica, but “no disease was established, i.e. he was [deemed] healthy”. The Government provided a certificate to this effect issued by the prison doctor on 12 January 2011, as well as copies of the relevant medical protocol dated 24 August 2005. The said protocol, however, was mostly illegible. E.     The preliminary judicial investigation 21.     On 25 August 2005 the Municipal Public Prosecutor’s Office in Subotica requested that a preliminary judicial investigation ( istraga ) be instituted against the applicant in respect of numerous counts of burglary, and proposed that his detention be extended. 22.     On the same day the investigating judge instituted the proceedings sought and extended the applicant’s detention for an additional month. Before so doing, she invited the applicant to give a statement in the presence of V.J.Đ. and the Deputy Public Prosecutor and informed him about the evidence put forth by the prosecution. The applicant, however, refused to respond to the charges in question. He referred, instead, to the abuse suffered at the hands of the police, as well as the alleged breach of his procedural rights up to that point. In the reasoning as regards the applicant’s continued detention, inter alia , the judge stated that the applicant could, if released, re-offend, abscond or unduly influence the witnesses. 23.     On 26 August 2005 the applicant’s continued detention was confirmed by the three-judge panel of the Municipal Court, which fully accepted the reasoning of the investigating judge. 24.     On 30 August 2005 the Municipal Court’s three-judge panel confirmed the investigating judge’s decision to institute a preliminary judicial investigation. 25.     In the following weeks the investigating judge heard many witnesses, including witnesses Đ.D. and P.D. On 1 September 2005 the former stated that his head had been slammed against the wall by the police in order to elicit his statement, whilst the latter recounted that he too had been threatened by the police with a baseball bat and for the same purpose. F.     The applicant’s indictment and the subsequent criminal proceedings 26.     On 16 September 2005 the Municipal Public Prosecutor’s Office indicted ( optužilo ) the applicant for the crimes in question. 27.     On 4 October 2005 V.J.Đ. filed a formal objection against the indictment ( podneo prigovor protiv optužnice ), but on 6 October 2005 the three-judge panel of the Municipal Court rejected this objection. 28.     On 21 November 2005 V.J.Đ. informed the Municipal Court that the applicant had recently been photographed by the police in prison. He requested clarification as to what had been the legal basis for this exercise, and expressed concern that the photograph could be used to unlawfully secure his client’s identification in the course of future identity parades. The Government submitted that the applicant had been photographed only once, on 25 August 2005, upon admission to the prison, and, further, that this photograph had been used solely for the purpose of supplementing his prison identity papers ( lični list ). 29.     On 7 December 2005 V.J.Đ. wrote again to the Municipal Court, stating that on 26 August 2005, 18 November 2005 and 6 December 2005 he had visited the applicant in prison, and that each time prison staff had been present during their conversations. Indeed, they had been close enough to be able to both hear and see everything. V.J.Đ. requested an explanation as to why the applicant had not been entitled to unsupervised communication with his counsel. As it subsequently transpired, on 26   August 2005 the Municipal Court had issued a standing permit ( stalna dozvola ) to V.J.Đ., authorising him to visit the applicant in prison. The said permit stated that visits could last up to 30 minutes and take place under the supervision, i.e. in the presence, of an official to be designated by the prison governor. The Government maintained that the supervision in question meant visual observation only, not listening to the conversations between the applicant and his lawyer. 30.     Between 9 December 2005 and 21 March 2006 four hearings were held or adjourned before the Municipal Court. 31.     In the presence of the Deputy Public Prosecutor, the applicant described the abuse which he had suffered whilst in police custody, and gave a physical description of the officer who had engaged in his ill-treatment on 17 August 2005. The applicant added that on this day he had sustained injuries to his legs and back, and had also been temporarily unable to hear on his left ear. Upon release the applicant went to a local hospital but was denied treatment because he had forgotten to bring his medical insurance card. When the applicant returned with this card, however, the hospital staff told him “to come back tomorrow”. On 18 August 2005, having been beaten by the officers once again, the applicant asked for V.J.Đ. to be informed of his arrest, but officer D.M. refused to do so. Officer M.V. was also present. The applicant explained that he had, ultimately, been coerced into signing a statement already prepared by the police without his participation. At one point, N.D., his police-appointed lawyer, appeared in the interrogation room merely in order to stamp and sign the same statement. As regards the charges against him, the applicant specifically denied some of them whilst in respect of others he refused to answer questions. 32.     Officer D.M. stated that the minutes of 17 and 18 August 2005 were accurate, that he had not personally seen the applicant being abused or even heard anything to that effect. The officer also had no recollection as to whether the applicant had been duly summoned to appear before the police, but recalled that the applicant had constantly moved around, which was why he had been difficult to find. 33.     Officer M.V. noted that he had not taken part in the interrogation of 17 August 2005, and had only a vague recollection of the interrogation which had taken place the next day. In particular, he remembered that the applicant had said that he did not want to retain V.J.Đ. as his counsel since the latter had always advised him to give no statements to the police and he had already had enough of the repeated arrests and interrogations. M.V. had no information to offer as to whether the applicant had been duly summoned to appear before the police, but recalled that the applicant’s police-appointed lawyer had been present throughout the interrogation. Finally, M.V. affirmed that the applicant’s statement was accurately recorded in the minutes of his interrogation, and added that he had personally informed the applicant of their content before he signed them. 34.     More than a dozen witnesses were subsequently heard before the Municipal Court, some of whom confirmed that they had “bought merchandise” from the applicant. Witness R.K. further stated, inter alia , that in August of 2005 he had seen several persons fleeing a crime scene in a red car. 35.     Witness L.K., however, stated that the police had beaten him with a baseball bat in order to force him to confess to a number of crimes, as well as to incriminate the applicant. In support of this allegation he provided the Municipal Court with a copy of a medical certificate documenting his injuries of 18 August 2005. 36.     Witness Đ.D. stated that he had accompanied the applicant from the police station to the hospital, on which occasion he had seen that the applicant had been injured and had been “walking with a limp” (see paragraphs 8 and 31 above). 37.     Witness N.D. stated that he had been invited by the police to act as the applicant’s legal aid lawyer on 18 August 2005. Prior to the interrogation, he had had a conversation with the applicant who had informed him that he had already retained legal counsel. The applicant was nevertheless willing to accept N.D. as his lawyer on that occasion only and in order to be released ( da idem odavde ). The applicant then confessed, in some detail, to the crimes in question. N.D. admitted that he had not inspected the case-file since the applicant had refused to communicate with him as regards the substance of the charges at issue, re-affirming that he had already retained a lawyer for this purpose. N.D. added that the applicant had had no visible injuries at that time, and that he had warned the applicant that the confession given to the police would be used as evidence against him. Officer M.V. interrogated the applicant. He did so by posing questions concerning specific places, burglaries and stores. N.D. lastly noted that he had not seen in his 33 years of practice a confession such as the applicant’s, and had therefore asked the applicant whether he was “protecting anyone”. The applicant had maintained that he was not. 38.     Witness M.D. denied any connection to the applicant, but stated that he too had been physically abused by the police on a number of occasions. M.D. also provided a medical certificate in this regard. 39.     On 22 March 2006 the Municipal Court decided to exclude the applicant’s statement of 18 August 2005 from the case file. It explained, inter alia , that there was indeed evidence to the effect that the applicant had been repeatedly arrested without having first been properly summoned which, in and of itself, indicated a sort of police harassment aimed at obtaining his confession. Further, there was no doubt that the applicant had chosen V.J.Đ. as his legal counsel and had never revoked this authorisation. The police, nevertheless, questioned the applicant in his chosen counsel’s absence, and appointed a legal aid lawyer for no apparent reason. 40.     On 4 April 2006 the District Court ( Okružni sud ) in Subotica quashed this decision and declared the applicant’s statement of 18 August 2005 legally valid. It noted that, as indicated in the minutes of the same date, the applicant had specifically said that he did not want V.J.Đ. to act as his legal counsel. The issue of whether the applicant was duly summoned was irrelevant, and the conditions for the appointment of a legal aid lawyer were clearly fulfilled. The applicant was also properly advised of his procedural rights. 41.     On 10 April 2006 officer Z.T. stated that on 8 August 2005 he had indentified a red car, which had apparently been seen leaving the crime scene, and had arrested the four or five persons whom he and his colleague had found in or around it. These persons were subsequently taken by other officers to the police station. 42.     On 13 April 2006 the Municipal Court heard the parties’ closing arguments, found the applicant guilty of having, effectively, committed eleven burglaries, i.e. ten between 15 June 2005 and 7 August 2005 and one on 8 August 2005, and sentenced him to one and a half years’ imprisonment for a single crime of “extended burglary” ( jedno produženo krivično delo teške krađe ). The Municipal Court further observed that there were six separate criminal cases pending concurrently against the applicant and considered this as an aggravating circumstance in sentencing. The applicant’s detention was prolonged until the judgment in his case became final. The Municipal Court also noted that, in the meantime, it had already reviewed and extended the applicant’s detention on 16 September 2005, 13   October 2005, 12 September 2005 and 14 February 2006, and that each time its decisions had been confirmed by the District Court on appeal. As regards the applicant’s conviction concerning the burglaries committed between 15 June 2005 and 7 August 2005, the Municipal Court took note of the applicant’s confession of 18 August 2005, recalled that he had been found in possession of stolen property, and emphasised that several witnesses had confirmed that they had bought such property from the applicant. Concerning the burglary of 8 August 2005 the Municipal Court relied on the applicant’s confession of the same date and the statements given by witnesses R.K and Z.T. Testimony indicating that certain witnesses had been ill-treated by the police in order to incriminate the applicant was either dismissed as irrelevant or simply ignored. 43.     On 23 May 2006 the Municipal Public Prosecutor’s Office lodged an appeal, seeking a harsher sentence. 44.     On 29 May 2006 and 7 June 2006 V.J.Đ. filed an appeal on behalf of the applicant, noting, inter alia , that: (i) his statement of 18 August 2005 had been obtained as a result of police brutality and in the absence of his chosen counsel, there being no other evidence which could have warranted a conviction; (ii) the police-appointed lawyer had never offered any genuine legal representation to the applicant and had instead been there to assist the police in their interrogation; (iii) the applicant’s complaints of ill-treatment had simply been ignored by the Municipal Public Prosecutor’s Office; (iv)   the prison staff had not allowed the applicant free communication with his chosen counsel; (v) the six separate criminal proceedings which had been pending concurrently against the applicant could not lawfully have been taken into account as an aggravating circumstance, but that since they were this amounted to an implied breach of the applicant’s right to be presumed innocent. 45.     On 27 June 2006 the District Court rejected the appeals lodged by the parties. 46.     On 25 July 2006 V.J.Đ. filed an appeal on points of law ( zahtev za vanredno ispitivanje zakonitosti pravosnažne presude ) on behalf of the applicant, re-stating his submissions made earlier. 47.     On 15 November 2006, however, the Supreme Court ( Vrhovni sud ) rejected this appeal. 48.     On 23 February 2007, having served his sentence imposed by the Municipal Court, the applicant was released from the District Prison in Novi Sad. II.     RELEVANT DOMESTIC LAW A.     The Criminal Code of the Republic of Serbia 1977 (Krivični zakon Republike Srbije; published in the Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89 and 42/89, as well as in the Official Gazette of the Republic of Serbia - OG RS - nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) 49.     Article 65 of this Code reads as follows: “(1) Whoever acting in an official capacity uses force or threats or other inadmissible means ... with intent to extort a confession or another statement from an accused, a witness, an expert witness or another person, shall be punished with imprisonment of from three months to five years. (2) If the extortion of a confession or a statement is aggravated by extreme violence or if the extortion of a statement results in particularly serious consequences for the accused in the criminal proceedings, the offender shall be punished by a minimum of three years’ imprisonment.” B.     The Code of Criminal Procedure 2001 (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 70/01 and 68/02, as well as in OG RS nos. 58/04, 85/05, 115/05 and 46/06) 50.     Article 3 provides, inter alia , that all State bodies and agencies shall respect the right of all persons to be presumed innocent unless and until their guilt has been established by a final court decision. 51.     Article 4 § 1 provides, inter alia , that a suspect, when first questioned, shall be informed of the charges and evidence against him. 52.     Article 12 prohibits, inter alia , any and all violence aimed at extorting a confession or a statement from the suspect and/or the accused, or indeed any other person involved in the proceedings. 53.     Articles 18 § 2 and 178 provide that a court decision may not be based on evidence obtained in breach of domestic legislation, or in violation of ratified international treaties, and that any such evidence must be excluded from the case file. 54.     Articles 19, 20, 46 and 235, read in conjunction, provide, inter alia , that formal criminal proceedings ( krivični postupak ) may be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex officio , such as the one at issue in the present case, the authorised prosecutor is the Public Prosecutor personally. The latter’s authority to decide whether to press charges, however, is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed. It makes no difference whether the Public Prosecutor has learnt of the incident from a criminal complaint filed by the victim or another person, or indeed even if he has only heard rumours to that effect. 55.     Article 224 provides, inter alia , that a criminal complaint may be filed in writing or orally with the competent Public Prosecutor, as well as that a court of law, should it receive a complaint of this sort, shall immediately forward it to the competent Public Prosecutor. 56.     Article 61 provides that should the Public Prosecutor decide that there is no basis to press charges, he must inform the victim of this decision, who shall then have the right to take over the prosecution of the case on his own behalf, in the capacity of a “subsidiary prosecutor”. 57.     Articles 5 § 2, 142, 144 § 1, 227 and 229, taken together, provide, inter alia , that a suspect may be arrested by the police, without an attempt to be summoned first, if: (i) he is in hiding or there is a danger of him absconding; (ii) there are circumstances indicating that he may tamper with evidence or influence witnesses and/or other participants in the criminal proceedings; and (iii) there are grounds to believe that he may re-offend. The suspect must, however, then either be brought before an investigating judge, within, in principle, a maximum of eight hours, or be formally detained by the police, which detention cannot exceed forty-eight hours. In the latter case, the suspect must be served with the provisional detention order within two hours as of his arrest and may lodge an appeal against it with the investigating judge who shall have to decide upon it within another four hours. Should the appeal be rejected and after the forty-eight hours have expired, the suspect shall either be released or brought to the investigating judge for questioning. The investigating judge shall have the power to order the suspect’s detention for up to one month. 58.     Articles 5 § 1, 71,   72, 226 §§ 8 and 9, 227 § 2 and 228 § 1, read in conjunction, provide, inter alia , that a person arrested by the police shall have the right to remain silent, as well as the right to be heard in the presence of his chosen counsel, or, in the absence thereof and depending on the seriousness of the charges, be provided with a legal aid attorney paid for by the State. If the arrested person’s interrogation has been carried out in accordance with the law, his statement given on this occasion may be used as evidence in the subsequent criminal proceedings. 59.     Articles 228 § 1, 229 § 5 and 226 § 8, taken together, further provide that, inter alia , the person arrested by the police shall have the right to contact his lawyer, directly or through family members, including by means of a telephone. 60.     Article 177 §§ 1 and 4 provides, inter alia , that a person arrested by the police shall be entitled to read the minutes of his interrogation before he signs them, or have those minutes read to him. Should the person in question be illiterate, he shall be allowed to use his right hand index fingerprint instead of a signature. 61.     Article 228 § 7 provides, inter alia , that the suspect shall be entitled to request that his medical examination be ordered by the investigating judge. The investigating judge’s decision to this effect, as well as the medical doctor’s subsequent opinion, shall be included in the case file. 62.     Article 75 §§ 2 and 5 provides that a defendant, whilst in detention, shall have the right to confidential communication with his legal counsel. This communication may be supervised only during the pre-indictment stage of the proceedings, and even then only by means of visual, not audio, monitoring. 63.     Article 193 provides that the costs of criminal proceedings shall include, inter alia , the defence counsel’s fees, whilst Article 196 § 1 states that should the court find the defendant guilty it shall order him to reimburse all costs. 64.     Article 225 § 4 provides that general complaints ( pritužbe ) concerning the conduct of police operations may be filed with the competent Public Prosecutor. 65.     Article 560 § 1 (3) provides, inter alia , that a person who due to an unlawful action undertaken by a State body or an error on its part has been deprived of his liberty in the absence of proper legal basis ( neosnovano ) shall be entitled to recover any damages suffered. C.     The Amendments to the Code of Criminal Procedure 2001 adopted in 2009 (Zakon o izmenama i dopunama Zakonika o krivičnom postupku, published in OG RS no. 72/09) 66.     In accordance with Article 414 of the Code of Criminal Procedure 2001, as amended in September 2009, the re-opening of a criminal trial may be sought where the Constitutional Court or an international court has found that the convicted person’s rights have been breached in the trial. D.     The Obligations Act (Zakon o obligacionim odnosima, published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85, 45/89 and 57/89, as well as in OG FRY no.   31/93) 67.     Articles 157, 199 and 200 of the Obligations Act, taken together, provide, inter alia , that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or of his other personal rights ( prava ličnosti ) shall be entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction (see, for instance, judgment no. 3879/03 adopted by the First Municipal Court in Belgrade on 29 April 2004, which has, in its relevant part, been upheld by the Supreme Court on 25 May 2006, awarding compensation for, inter alia , an implied breach of the presumption of innocence under Article 200; see also judgment no. 2939/01 rendered by the Municipal Court in Šabac on 20 February 2002, which was ultimately confirmed by the Supreme Court on 21 April 2004, ordering the cessation of discriminatory treatment and the publication of an apology under Articles 157 and 199). 68.     Article 172 § 1 provides that a legal entity ( pravno lice ), which includes the State, shall be liable for any damage caused by one of “its bodies” to a “third person”. This provision includes State liability for any judicial or police misconduct and/or malfeasance (see, for example, the judgments of the Supreme Court of 10 November 2002, Rev. 6203/02, and 10 April 2003, Rev. no. 1118/03). E.     Domestic case-law referred to by the Government 69.     The Government provided the Court with case-law indicating that a plaintiff complaining about the lawfulness of his detention, as well as the related issues concerning his private life, including the unlawful taking of photographs, had been able to obtain redress before the domestic courts. Specifically,   on 21 February 2006 the Municipal Court in Novi Sad, inter alia , applied Article 200 of the Obligations Act, recognised the alleged breaches of Articles 5 and 8 of the Convention, and ordered the respondent State to pay the plaintiff a specified amount of compensation (Pbr. 1848/05). On 8 November 2006 the District Court in Novi Sad upheld this judgment and increased the compensation awarded (Gž. br. 3293/06). III.   RELEVANT INTERNATIONAL REPORTS A.     Report to the Government of Serbia and Montenegro on the visit to Serbia and Montenegro carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) from 16 to 28   September 2004, made public on 18 May 2006. 70.     The relevant sections of this report read as follows: “203.   The CPT’s delegation heard numerous allegations of deliberate physical ill-treatment of persons deprived of their liberty by the police throughout Serbia. Some of the allegations concerned ill-treatment at the time of or immediately following apprehension, whereas others related to ill-treatment during police questioning and, more particularly, during interrogation by officers of the criminal police. Many detainees interviewed by the delegation alleged that they had been slapped, punched, kicked or beaten with batons during police custody. A number of allegations received included recent accounts of beatings on the palms of the hands or soles of the feet, the placing of a plastic bag over the detainee’s head to cause temporary asphyxiation, or the infliction of electric shocks on different parts of the body. The ill-treatment alleged was in several cases of such a severity that it could well be considered to amount to torture. ... Further, in almost all of the police stations visited in Belgrade, the delegation found baseball bats and similar non-standard and unlabelled objects in offices used for interrogation purposes. 204.   The information at the CPT’s disposal suggests that persons suspected of a criminal offence run a significant risk of being ill-treated by the police in Serbia at the time of their apprehension and during the first hours in police custody. The number and severity of allegations of police ill-treatment received calls for urgent action by the national authorities ... 206.   As regards fundamental safeguards against ill-treatment of persons deprived of their liberty by the police (e.g. the right to have the fact of one’s detention notified to a close relative or third party; the rights of access to a lawyer and a doctor), at present their practical implementation leaves a lot to be desired; the CPT has made detailed recommendations in this area ...” B.     Report to the Government of Serbia on the visit to Serbia carried out by the CPT from 19 to 29 November 2007, made public on 14   January 2009 71.   The relevant sections of this report read as follows: “13.   The number of allegations of ill-treatment by the police heard by the CPT’s delegation in the course of the 2007 visit was lower, and the ill-treatment alleged less severe, than during the Committee’s first periodic visit in 2004. That said, the delegation did receive a number of allegations of physical ill-treatment (consisting of punches, kicks, truncheon blows, blows with a thick book or with a wet rolled newspaper, and handcuffing to fixed objects in a hyper-extended position) during questioning by criminal police officers, in order to obtain confessions or other information. It would appear that juveniles suspected of serious criminal offences are particularly exposed to physical violence. Further, the delegation received some accounts of verbal abuse and threats during questioning ... 14.   Most of the allegations of ill-treatment related to periods some time before the delegation’s visit; consequently, any injuries which might have been caused by the ill-treatment alleged would almost certainly have healed in the meantime ... 15.   It should also be noted that, in several police stations visited (e.g. in Bor, Inđija, Kovin, Petrovac na Mlavi, Negotin and Ruma), the delegation again found – in offices used for police interviews – various non-standard issue items (such as baseball bats, iron rods, wooden sticks, thick metal cables, etc). The CPT reiterates its recommendation that any non-standard issue objects be immediately removed from all police premises where persons may be held or questioned. Any such items seized during criminal investigations should be entered in a separate register, properly labelled (identifying the case to which they refer) and kept in a dedicated store. ... 19.   As stressed by the CPT in the report on its first visit to Serbia, it is axiomatic that judges must take appropriate action when there are indications that ill-treatment by the police may have occurred. In this connection, it should be noted that some persons interviewed during the 2007 visit alleged that the investigating judges before whom they had been brought with a view to being remanded in custody ignored their complaints of police misconduct ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 72.     The applicant complained under Article 3 of the Convention about the police ill-treatment of 17 and 18 August 2005, as well as the respondent State’s subsequent failure to conduct any investigation into these incidents. 73.     Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 74.     The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other ground. They must therefore be declared admissible. B.     Merits 1.     The substantive aspect (a)     The parties’ submissions 75.     The Government pointed out that there was no medical evidence to the effect that the alleged ill-treatment had occurred. In fact, there was nothing but the applicant’s own allegations to this effect. It was further unclear as to why the applicant had not sought a medical examination on 18   August 2005, or indeed attempted to get in touch with V.J.Đ. after his release from police custody. Finally, the Government noted that the applicant had failed to request a medical examination in accordance with Article 228 § 7 of the Code of Criminal Procedure (see paragraph 61 above), and maintained that on 24 and 25 August 2005, which was when he had been admitted to the District Prison in Subotica and heard by the investigating judge, respectively, no injuries were apparent on his person (see paragraphs 20 and 22 above). 76.     The applicant acknowledged that he had not managed to obtain medical evidence of the abuse in question, but argued that there was other, direct or indirect, evidence capable of proving his abuse at the hands of the police. (b)     The relevant principles 77.     The Court reiterates that Article 3 of the Convention must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe (see Pretty v. the United Kingdom, no. 2346/02, §   49, ECHR 2002-III). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention (see, inter alia , Chahal v. the United Kingdom , judgment of 15 November 1996, §   79, Reports of Judgments and Decisions 1996-V). 78.     According to the Court’s settled case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010; Price v. the United Kingdom, no. . 33394/96, §   24, ECHR 2001-VII; Mouisel v. France , no.   67263/01, §   37, ECHR   2002-IX; and Jalloh v.   Germany [GC], no.   54810/00, §   67, 11   July 2006). 79.     Treatment has been held by the Court to be “inhuman” because, inter alia , it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see   Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see   Hurtado v. Switzerland , 28 January 1994, opinion of the Commission, § 67, Series A no.   280, and Wieser v. Austria , no.   2293/03, §   36, 22   February 2007). Constant mental anxiety caused by the threat of physical violence and the anticipation of such, has likewise been deemed to go beyond