CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 juillet 2014

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SERBIA   (Application no. 40485/08)                 JUDGMENT       STRASBOURG   15 July 2014       FINAL   15/10/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Petrović v. Serbia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Josep Casadevall, President,   Alvina Gyulumyan,   Ján Šikuta,   Dragoljub Popović,   Johannes Silvis,   Valeriu Griţco,   Iulia Antoanella Motoc, judges, and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 24 June 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   40485/08) against the   Republic of 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, Ms Radmila Petrović (“the applicant”), on 1 August 2008. 2.     The applicant, who had been granted legal aid, was represented by Ms   T. Drobnjak, a lawyer practising in Belgrade. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 3.     The applicant alleged, in particular, that no effective investigation had been conducted into the circumstances of her son’s ill-treatment and death. 4.     The application was initially allocated to the Second Section of the Court (Rule   52 §   1 of the Rules of Court). 5.     By a partial decision of 4 January 2012, the Court decided to communicate to the Government the complaint concerning the State’s failure to carry out an effective investigation and declared the remainder of the application inadmissible. 6.     On 1   February 2014, the Court changed the composition of its Sections (Rule 25 § 1). This case was thus assigned to the newly composed Third Section (Rule 52 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1950 and lives in Belgrade. The applicant’s son, Mr Dejan Petrović, was born in 1973 and died on 15 February 2002 in hospital, a month after reportedly having fallen from the window of a police station in Belgrade. A.     Events surrounding the death of Mr Dejan Petrović 8.     At about 9.30 p.m. on 16 January 2002 Mr Dejan Petrović was arrested by the Vračar Police Department ( OUP Vračar-SUP Beograd ) on suspicion of having snatched a woman’s handbag earlier that evening and was kept overnight in police custody. Mr Dejan Petrović, then aged twenty-nine, was apparently known to the police as an alleged drug user and as having been involved in similar incidents previously. 9.     According to the police reports, the following morning at 8.30   a.m. Mr   Dejan Petrović was questioned by three police officers, D.K., S.K. and N.K. Mr Dejan Petrović allegedly confessed that he had committed the robbery in question and had hidden a sum of money (around 20,000 Serbian dinars (RSD)) in his home. After an unsuccessful search of the Petrović family’s flat that morning, the police officers left the house together with Mr Petrović in handcuffs. 10.     The applicant alleged that her son had been visibly distressed and very pale, and his mouth had been yellowish. On the way out, he had turned to her and said “call a lawyer, I have done nothing, they will kill me”. 11.     According to the incident report of 17 January 2002 drawn up by Major M.M., the police officers’ superior, Mr Dejan Petrović had been brought back handcuffed, at around 10.30 a.m., to office no. 24 on the second floor of the Vračar police station to be questioned further. As they entered the office, while D.K. was approaching his desk, S.K. was standing and N.K. was closing the office door, Mr Dejan Petrović suddenly rushed forward, jumped head first through a closed window, breaking a window pane, and fell out into the courtyard. None of the police officers had been able to prevent it. The police officers ran out to the courtyard and, as Mr   Dejan Petrović showed some signs of still being alive, they took the handcuffs off, while some other colleagues called an ambulance. 12.     Around noon, the police informed the applicant’s family that Mr   Dejan Petrović had jumped from the second floor of the police premises and that he had been taken to the emergency unit of the Serbian Clinical Centre in Belgrade. 13.     Upon their arrival at the emergency unit, the applicant and her husband (Mr Dejan Petrović’s father) were informed that at around 11.10   a.m. the hospital had admitted an unidentified and severely injured patient who had jumped from the second floor of a building. He was in a comatose state, with a fracture of his left ribs and femur and contusion and haematoma of the liver, and was undergoing surgery that could take several hours. 14.     While the surgical operation was being carried out, the applicant’s husband went to the Vračar Police premises. Following an on-site inspection (see paragraphs 18-19 below), he was shown the scene of the incident. The applicant claimed that her husband, as well as certain media, had initially been informed that their son, who had been handcuffed and in his winter jacket, had been alone in the office when he had jumped through the window, but had later been told that their son had broken away in the presence of the three police officers. 15.     Mr Dejan Petrović remained in a comatose state while in hospital, except between 26 and 28 January 2002, when he showed some signs of consciousness and movement. 16.     According to the medical certificate issued by the Serbian Clinical Centre, Mr Dejan Petrović died from sepsis and cardiac arrest on 15   February 2002 at 4.30 a.m. Following a request by the investigating judge (M.P.) of the Belgrade District Court, the post-mortem examination of Mr Dejan Petrović’s body was carried out on 18 February 2002 at 9 a.m. by two doctors, Sl.K. and V.D.J., of the Institute for Forensic Medicine of the Faculty of Medicine in Belgrade. The autopsy report stated that Mr   Dejan   Petrović’s death had been violent and caused by damage to his brain ( vitalne centre ) and complications thereafter. It further concluded that the damage to his brain, as well as the rib and femur fractures and other external and internal bodily injuries described in the report, had been “inflicted with a blunt, heavy and swinging object ( naneti tupim, teškim i zamahnutim predmetom )”. No photographs or results of any toxicological analysis have been submitted to the Court. B.     The inspection of the scene of the incident on 17   January 2002 17.     Following a telephone call from the Belgrade criminal police department for investigative and operational affairs ( Odelenje za uviđajno-operativne poslove Uprave kriminalističke policije (UKP) - SUP Beograd ; hereinafter “the DIOA”), the investigating judge on duty, V.M., from an unspecified court, arrived at the Vračar Police Department at an unspecified time to inspect the scene of the incident. D.Z., from the DIOA, and a crime-scene technician, M.K., from the Belgrade criminal police forensics unit ( Odeljenje kriminalističke tehnike UKP-a ) were also present. 18.     According to the investigating judge’s one-and-a-half-page report of his inspection of the scene of the incident ( zapisnik o uviđaju ), upon his arrival at the Vračar Police Department, unspecified police officers had shown him office no. 24 and a broken window pane in the left corner of the window, closest to the floor. As it was a double, wooden multi-paned window, and as he had been informed that Mr Dejan Petrović had jumped out through the window pane by breaking the glass, he had examined the pane in question. As he had seen no blood stains, hair or any other trace of this nature, he had asked the two above-mentioned investigators whether they had seen any traces, in order to inspect them, but they had both responded in the negative. He had ordered the crime-scene technician to draw a sketch of the scene and to photograph it, as well as to measure the size of the window. The investigating judge had noted the broken window pane, as well as pieces of glass between the two window frames and on the floor below the inside window. In the snow-covered courtyard of the police building, into which the suspect Mr Dejan Petrović had allegedly fallen, he had “noticed footprints and trodden snow of an indeterminate shape below the window”, but had not found “any blood stains or other physical traces”. 19.     The sketch of the scene of the incident, thirteen photographs of the office and three of the courtyard were an integral part of the investigating judge’s report. The copies of the photographs submitted to the Court show an armchair under the broken window with a cabinet to its right and a hat stand to its left. In the report on the forensic inspection of the scene of the incident ( izveštaj o kriminalističko-tehničkom pregledu lica mesta ), the crime-scene technician noted the following: (a) as regards biological traces, the investigating judge had not requested that fingerprints be lifted and collected; (b) as regards the other evidence and objects found, broken glass had been noticed in the pane of the lower left part of the interior and exterior window frames. The window pane’s frames measured 50 x 55 and 45 x 50 centimeters respectively and stood one metre from the office floor. Both window frames had been found closed. Pieces of broken glass had been found between the interior and exterior window frames and on the windowsill. The outside window stood nine metres above the ground. The trodden snow and pieces of glass had been found 1.5 metres away from the building’s wall. Other traces had not been found. 20.     According to a separate report on the questioning of the three police officers drawn up by D.Z. from the DIOA, they had provided concurring statements to the same effect as those detailed in the incident report (see paragraph 11 above). The police officers also stated that Mr Dejan Petrović had, as usual, been very well-behaved that morning and had confessed to committing the robbery. C.     Internal disciplinary proceedings 21.     A report was drawn up, apparently in the framework of a fact-finding visit conducted on 17   January 2002, at an unspecified time, by Major D.T. and Captain Ð.D. of the Belgrade Police Internal Control Department ( Odeljenje za kontrolu zakonitosti u radu SUP-a Beograd ). The report restated the events as outlined by the previous reports (see paragraphs 11 and 20 above). It was further noted that Mr Dejan Petrović’s parents had mentioned that he had been taking antidepressants as part of his therapy for drug addiction in order to prevent any possible self-injury. Regarding the police officers’ accountability, the inspectors considered that the police officers in charge had undertaken preventive, but apparently insufficient, measures for the protection of Mr Dejan Petrović. For that reason, disciplinary action against S.K. and D.K. and a verbal reprimand to N.K. by her superior were recommended. The inspectors also recommended that the police ensure appropriate conditions, for example, window security bars, on premises where apprehended individuals were questioned. 22.     In the framework of a preliminary disciplinary inquiry ( prethodni disciplinski postupak ) that evening, the three police officers were questioned again, one by one, by their superior, Major M.M. The three officers repeated their earlier statements. 23.     On 7 March 2002 S.K. and D.K. were prosecuted in disciplinary proceedings for gross misconduct, namely, omitting to take adequate measures for the protection of Mr Dejan Petrović’s safety while in custody. The disciplinary body heard the officers as the suspects, as well as N.K. as a witness, all of whom reiterated their earlier recollection of the incident. The police officers were acquitted at two levels, the last decision being rendered on 10 May 2002. It was found that in the circumstances of the case they could not have done more than they had done to protect Mr Dejan Petrović and prevent his suicide. D.     Investigative measures taken following the submission of the applicant’s criminal complaints 24.     On 28 January 2002 the applicant’s husband lodged a criminal complaint against police officer D.K. on behalf of the Petrović family, on the ground that there was a reasonable suspicion that he had forcibly extracted a statement from Mr Dejan Petrović. In the complaint it was claimed that the police officers had used force in order to extract a statement and had severely ill-treated Mr Dejan Petrović to such an extent that it had driven him to jump out of the office window. The family also alleged that the police officers had failed to disclose Mr Dejan Petrović’s identity and all the circumstances of the incident to the emergency medical team. 25.     In the meantime, on 24 January 2002, the Belgrade police sent the District Public Prosecutor’s Office in Belgrade (hereinafter “the DPPO”) the two reports of 17 January 2002 (see paragraphs 21-22 above). On 14   May   2002 and 12 June 2002, respectively, the DPPO also received the autopsy report and the report on the forensic inspection of the scene of the incident (see paragraphs 16 and 18-19 above). 26.     On 11 October 2002 the DPPO requested information from the Belgrade Police Internal Control Department on the outcome of the disciplinary proceedings against the police officers who had been present during the incident. The DPPO also supplied that department with its own case file to enable them to establish the facts of the case more easily. The requested documentation from the disciplinary proceedings was received by the DPPO on 14 November 2002. 27.     On an unspecified date, the applicant’s husband extended the criminal complaint to include two other police officers who had been involved in the incident. 28.     On 9 January 2003 the DPPO requested a commission of forensic experts from the Institute for Forensic Medicine of the Belgrade Faculty of Medicine to give their opinion on what other causes, apart from a fall from the window, could explain Mr Dejan Petrović’s injuries. On 1 August 2003 the Institute for Forensic Medicine requested the case file and the DPPO sent it to them a month later. On 18 September 2003 the DPPO requested an investigating judge of the District Court to issue an order for a forensic opinion, as the Institute could apparently not proceed on the basis of the DPPO’s order alone. The investigating judge did so on 8 October 2003. 29.     Almost a year later, in an expert opinion dated 13 September 2004, the experts stated, on the basis of the autopsy report and other medical records, that a person of Mr Dejan Petrović’s height and build could have “squeezed through” the window in question. They further maintained that Mr Dejan Petrović’s fatal injuries could have been caused by his jump from the window and his falling on a hard surface. Finally, they concluded that no other injuries, lacerations, scratches or bruises of a nature or location which would indicate that they had any cause other than the one mentioned above had been recorded in the autopsy report or in the hospital’s files. 30.     On 1 November 2004 the DPPO rejected the criminal complaint on the ground that there was no reasonable suspicion that the suspects had committed the alleged crime. The applicant’s husband was notified accordingly and informed that he could pursue a subsidiary criminal prosecution ( preuzeti krivično gonjenje ) within eight days of the date that decision had been served on him by filing a request for an investigation ( zahtev za sprovođenje istrage ). 31.     On 16 February 2005 the Petrović’s family lodged with the DPPO a new and more detailed criminal complaint against the police officers (P.N., N.K., D.K. and S.K.) for causing severe bodily harm ( teške telesne povrede ), extracting a statement by coercion ( iznuđivanje iskaza ) and ill-treatment in the discharge of their official duties ( zlostava u službi ). In the complaint they expressed their doubt that Mr Dejan Petrović had jumped out of the office window of his own volition and their suspicion that the suspects had thrown their son’s corpse out of the window in order to conceal previous ill-treatment. The complaint pointed out certain alleged contradictions and shortcomings in the previous investigative measures and reports, and proposed numerous investigative activities to be carried out in order to investigate the circumstances of Mr Dejan Petrović’s death adequately. 32.     On 22 March 2005 the DPPO in Belgrade rejected that criminal complaint for the same reasons relied on in its decision of November 2004, and repeated the information it had provided about the possibility of a subsidiary prosecution. That letter was served on the applicant on 8   April   2005. E.     The applicant’s pursuit of a subsidiary prosecution 33.     Following the rejection of the first criminal complaint (see paragraph 30 above), on 17 November 2004 the applicant attempted to take over the prosecution as a subsidiary prosecutor by filing a request for an investigation with the District Court in Belgrade and subsequently, on 11   April 2005, a request to broaden the scope of the investigation ( zahtev za proširenje istrage ). She relied on and reaffirmed the assertions and requests she had made in her second criminal complaint (see paragraph 31 above). 34.     In response to a request of 22 March 2005 by the District Court’s investigating judge, B.P., as well as a reminder sent on October 2005, on 15   January 2006 two forensic pathologists, Dr Z.S. and Dr N.M., from the Military Medical Academy in Belgrade provided an expert opinion. Relying on the previous medical and autopsy reports, they found that the location, distribution and types of injuries observed on Mr Dejan Petrović indicated that they were severe and life-endangering, and that they could undoubtedly have been the result of a fall from the second floor, but only through an open window. In particular, they found that taking into account the circumstances of the incident, including Mr Dejan Petrović’s build, his winter clothes and his handcuffs, the size of the window pane in question and the position of the furniture and the window in the office, it would have been practically impossible for him to have broken through the window and jumped out. Otherwise, it would mean that he had been able to “fly horizontally” over the armchair and break the window with his head exactly in its centre. 35.     On 18 April 2006 the investigating judge held a hearing and interviewed the suspects. They repeated their earlier statements. S.K. added that Mr Dejan Petrović had jumped from the floor one metre away from the window and gone through it without touching the armchair, which was under the window; none of the furniture had fallen over or been moved. 36.     On 8 May 2006 the investigating judge refused to open the investigation sought by the applicant ( izrazio neslaganje sa zahtevom ), and referred the case to a three-judge criminal panel (see paragraph 49 below). 37.     On 17 July 2006 the three-judge panel of the District Court upheld the investigating judge’s findings, relying on the case file, namely, the “concordant statements of the suspects” and the findings and opinions of the forensic experts in 2004 and 2006, “which [were] consistent and indicate[d] that all the injuries of the deceased could have been caused at the same time by his fall from a height of nine metres onto a hard surface”. The applicant was instructed that she could appeal against that decision within three days from the date on which the decision was served on her and she did so on 2   November 2006, reiterating her previous arguments. 38.     On 30 November 2006 the Supreme Court of Serbia rejected the applicant’s appeal as unfounded. In reaching that decision, by reference to the expert commission’s forensic findings of 2004, it upheld the lower court’s reasoning as clear, conclusive and convincing. That decision was served on the applicant on 20 February 2007. 39.     On 7 March 2007 the applicant applied to the Chief Public Prosecutor’s Office ( inicijativa za podizanje zahteva za zaštitu zakonitosti ), urging him to lodge a request with the Supreme Court for the protection of legality ( zahtev za zaštitu zakonitosti ) against the decision of 30 November 2006 on her behalf. 40.     On 27 August 2007 the Chief Public Prosecutor informed the applicant that on that same day he had accepted her motion and had lodged a request for the protection of legality against the decision of 30   November   2006, submitting, in particular, that: (a) the court had based its finding on evidence that had been challenged by the applicant and, which, according to him, had been flawed by inconsistencies; (b) the court had dismissed the applicant’s appeals without addressing her arguments; and (c) the collection and examination of evidence had been superficial, which had resulted in the incorrect and implausible conclusion reached by the court. 41.     On 8 February 2008 the Supreme Court of Serbia, sitting in a different composition from that of 30 November 2006, rejected the Prosecutor’s request. Having regard to the case file and a hearing in the presence of the three suspects and their lawyer, the court stated the following: (a) the forensic experts had not ruled out that the victim might have sustained the injuries while breaking the window and falling on a hard surface; (b) no evidence had shown that the suspects had caused the victim any bodily harm by any other means; (c) according to the relevant evidence, there was no reasonable suspicion that the suspects had committed the alleged crimes which would warrant the opening of criminal proceedings; and, lastly, (d)   the impugned decision did not ultimately preclude the opening of criminal proceedings if the victim, as a subsidiary prosecutor, submitted new evidence which had not existed or had been unknown at the time of her previous request for an investigation. This decision was served on the applicant on 30 May 2008. F.     Civil proceedings against the State 42.     In December 2002 the applicant and her husband brought a joint civil action against the respondent State and the Ministry of the Interior to obtain redress for the mental anguish suffered as a consequence of Mr   Dejan   Petrović’s death. They relied on the Obligations Act and various international human rights instruments. The defendant contested the claim in general, but did not make any further clarification in that respect. 43.     In its judgment of 4 June 2007, the First Belgrade Municipal Court clarified that although it could not ascertain a reliable course of the events in question or anyone’s clear fault, this was not its task in any event. Referring to the 2006 forensic experts’ report and Article 172 of the Obligations Act (see paragraphs 34 above and 51 below, respectively), the court concluded that the respondent State should compensate the plaintiffs on the basis of the State’s liability for its officials’ omissions, which had undoubtedly occurred given that Mr Dejan Petrović had sustained injuries and died while in police custody under the supervision of State officials. Pursuant to Articles 200 and 201 of the Obligations Act, it awarded each plaintiff RSD 1,000,000 for non-pecuniary damage, and made an award in respect of costs. 44.     That judgment was upheld on the merits by the District Court and the Supreme Cassation Court on 23 February 2009 and 24 June 2010 respectively. The sums awarded were paid on 7 December 2010. II.     RELEVANT INTERNATIONAL LAW   Recommendation Rec(2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system (adopted on 6 October 2000 at the 724 th meeting of the Ministers’ Deputies) 45.     The relevant part of Recommendation Rec(2000)19 reads as follows: “33. Public prosecutors should take proper account of the views and concerns of victims when their personal interests are affected and take or promote actions to ensure that victims are informed of both their rights and developments in the procedure. 34. Interested parties of recognised or identifiable status, in particular victims, should be able to challenge decisions of public prosecutors not to prosecute; such a challenge may be made, where appropriate after an hierarchical review, either by way of judicial review, or by authorising parties to engage private prosecution.” III.     RELEVANT DOMESTIC LAW A.   Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – no. 70/2001; amendments published in OG FRY no. 68/2002 as well as the Official Gazette of the Republic of Serbia – OG RS – nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09 and 72/09) 46.     The relevant domestic provisions are contained in Articles 19, 20, 46, 61, 64, 235, 242, 243, 379, 406 and 425 of the Code. 47.     In accordance with these provisions, formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of crimes subject to public prosecution, including the crimes mentioned above in paragraph 31, the authorised prosecutor is the public prosecutor in person. The public prosecutor’s discretion 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 public prosecution has been committed. The public prosecutor must undertake measures necessary for the preliminary investigation of crimes subject to public prosecution and the identification of the alleged perpetrators. To that end he is vested with the power to co-ordinate the work of various law-enforcement agencies and other government bodies. 48.     If the public prosecutor finds, based on the evidence before him, that there is a reasonable suspicion that a certain person has committed a crime subject to public prosecution, he will request the competent court to open an official investigation or file a bill of indictment. If, however, the public prosecutor decides that there is no basis for the institution of such proceedings, he must issue a reasoned decision, and also inform the victim of this decision; the victim then has the right to take over the prosecution of the case on his or her own behalf, in the capacity of “subsidiary prosecutor”, within eight days from the notification of the public prosecutor’s decision. 49.     A subsidiary prosecutor may submit a request for the opening of the investigation or file an indictment. If an investigating judge refuses to open the investigation sought, the case will be referred to a three-judge criminal panel to issue a decision in that respect within forty-eight hours. A further appeal is allowed. If the prosecution has already been taken over by a subsidiary prosecutor, the public prosecutor shall nevertheless have the power to resume the prosecution of the matter ex officio . 50.     As regards a request for the protection of legality, a party to the proceedings has no right under the law to make use of this remedy personally, but is entitled to submit a motion to the competent public prosecutor to file it on his or her behalf, while the latter has full discretion in respect of whether to do so. If the Supreme Court accepts the motion, it has the power to find a breach of legality, to reverse the final decision or to quash it fully or partially and to refer the case for reconsideration. B.   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) 51.     Article 172 § 1 provides that a legal entity, which includes the State, is liable for any damage caused by one of “its organs”. 52.     Articles 200 and 201 provide, inter alia , that anyone who has suffered fear, physical pain or, indeed, mental anguish as a consequence of, inter alia , the death of his or her next-of-kin, is entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress which might be capable of affording adequate non-pecuniary satisfaction. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 53.     Тhe applicant complained that the Serbian authorities had not discharged their obligations under the procedural limb of Article 2 of the Convention, which required them to conduct an adequate and effective investigation into the circumstances surrounding her son’s death, with the alleged intention of concealing police abuse. Article 2 provides as follows: Article 2 “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.” A.     Admissibility 1.     The Government’s preliminary objections (a)     Six-month rule 54.     The Government argued that the decision of the Supreme Court of 30   November 2006 was the final decision for the purposes of Article   35   §   1 of the Convention, since a request for the protection of legality is, according to the Court’s case-law, an ineffective legal remedy. The applicant had lodged her application on 1 August 2008 and had therefore not complied with the six-month requirement set out in Article 35 § 1. 55.     The applicant replied that in considering the question of compliance with the six-month rule account had to be taken of her attempt to use every available remedy in respect of her complaints. She maintained that the prosecutor’s request for the review of the decision of 30   November 2006 had raised her expectation that the authorities might, upon his request, ultimately carry out an effective investigation. Therefore, the final decision within the meaning of Article 35 § 1 had not been that of 30   November   2006. Instead, it was only on 8 February 2008 that it had become apparent that these processes no longer offered any realistic prospects of obtaining redress domestically. 56.     Article 35 § 1 of the Convention provides: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” 57.     The relevant question in the present case is whether the applicant’s unsuccessful attempts to take over the prosecution as a subsidiary prosecutor and to request the prosecutor to lodge a “request for the protection of legality” amounted to her pursuing unnecessary remedies, which would render her application out of time (see, for example, Prystavska v. Ukraine (dec.), no.   21287/02, 17 December 2002). The Court considers that they did not, for the following reasons. 58.     The Court has already held that while victims are not required to pursue the prosecution on their own, this being the duty of the public prosecutor, who is better equipped in that respect, if an applicant nonetheless takes over the prosecution in the capacity of a subsidiary prosecutor, those proceedings become an inherent part of the case and must be taken into account, including for exhaustion and six-month purposes (see, in the context of Article 2, Mladenović v.   Serbia , no.   1099/08, §§   39 and   47, 22   May 2012; see, albeit in the context of Article 3, Otašević   v.   Serbia , no.   32198/07, § 25, 5   February 2013 with further references therein). 59.     Turning to the present case, the Court notes that the applicant diligently pursued this avenue of redress and, likewise, she then made a rational decision not to file any further indictment in view of her previous unsuccessful request for an investigation (see paragraphs 38 and 49 above), which required a much lower standard of proof (contrast to Gasyak and Others v. Turkey , no.   27872/03, §   58, 13 October 2009). Instead, the applicant successfully applied to the Chief Public Prosecutor’s Office urging him to lodge the request for the protection of legality (see paragraphs 39 and 50 above). She finally lodged her application to the Court after she had received the Supreme Court’s negative decision of 8   February 2008 concerning the Prosecutor’s request for the protection of legality. In this latter connection, the Court notes that the request for the protection of legality was admittedly of a discretionary character, and normally such a remedy is not considered to be effective (see Lepojić v.   Serbia, no.   13909/05, § 54, 6 November 2007) and could not restart the running of the six-month limit (see, for example, Kucherenko v.   Ukraine   (dec.), no. 41974/98, 4 May 1999). Nevertheless, situations in which a request to reopen the proceedings actually results in a reopening, or in which a request for extraordinary review is successful, may be an exception to this rule (see Gasparyan v. Armenia (no. 1) , no.   35944/03, §   30, 13 January 2009 with further references), though only in relation to those Convention issues which served as a ground for such a review or reopening and were the object of examination before the extraordinary appeal body (see Gasparyan , cited above, §   32, and Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR   2004 ‑ II (extracts)). 60.     The Court considers that the situation in the present case falls into the category of exceptional cases. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to lodge his complaint with the Court before his position in connection with the matter has been finally settled at the domestic level (see Mladenović , cited above, § 44). The applicant’s complaint to the prosecutor, raising the substance of her complaint before this Court, was in fact successful: indeed, the Chief Public Prosecutor, as the most senior prosecutor, criticised in particularly strong terms the previous decisions of the domestic judicial bodies as wrong and arbitrary (see paragraph 40 above). It was thus perfectly reasonable for the applicant to await the Supreme Court’s decision on the prosecutor’s request for the protection of legality, particularly in view of the Supreme Court’s powers had that request been accepted (see paragraph 50 above). In that respect, it cannot be said that the applicant deliberately tried to defer the time-limit set in Article 35 § 1 by making use of inappropriate procedures which could offer her no effective redress for the complaint in issue under the Convention (compare and contrast Fernie v.   the   United Kingdom   (dec.), no.   14881/04, 5 January 2006). 61.     For the reasons mentioned in the above paragraph, the Court considers that the decision of the Supreme Court of 8 February 2008 was the final decision for the purposes of Article   35   §   1 of the Convention in the present case. The Court therefore finds that by lodging her application within two months of 30 May 2008, which was the date of service of the final decision issued in the domestic proceedings (see paragraph 41 above), the applicant complied with the six-month time-limit provided in Article 35 § 1 of the Convention. (b)     Victim status 62.     Referring to Caraher v. the United Kingdom   (dec.), no.   24520/94, ECHR   2000 ‑ I, the Government further submitted that the applicant could no longer claim to be the victim of any violation of the rights relied on in respect of the death of her son, since the civil courts had “acknowledged [that] the State [had] made an omission in respect of the circumstances causing the death of the applicant’s son” and had, in that connection, awarded compensation almost equivalent to the settled amount in a case which had been struck out (see Petković v.   Serbia (dec.) , no. 31169/08, 6   December 2011). In addition, the State’s response was not limited merely to compensation, given that the authorities had brought disciplinary and criminal proceedings against the police officers. The fact that no case to take forward was established cannot be equated to the Court’s conclusion that no investigation was carried out at all. 63.     The applicant submitted that the civil proceedings could not satisfy the State’s procedural obligation under Article 2 and therefore could not have deprived the applicant of her victim status. 64.     A decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Nikolova and Velichkova v.   Bulgaria , no.   7888/03, § 49, 20 December 2007 and the cases cited therein). As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, with particular regard to the nature of the right alleged to have been breached (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010), the reasons given for the decision (see Jensen v. Denmark   (dec.), no.   48470/99, ECHR 2001 ‑ X) and the persistence of the unfavourable consequences for the person concerned after that decision (see Freimanis and Līdums v.   Latvia , nos. 73443/01 and 74860/01, § 68, 9 February 2006). 65.     In view of the foregoing, the Court considers that the question of the applicant’s victim status is closely linked to the nature and the content of the obligation at issue in the present case and should be joined to the merits of the complaint under Article 2. 2.     Compatibility ratione temporis 66.     The Court observes that Serbia ratified the Convention on 3   March   2004 and that some of the events in the present case took place before that date. In the Court’s view, although the Government have not raised an objection as to its competence ratione temporis , this issue nevertheless calls for its consideration proprio motu (see, mutatis mutandis , Jovanović v.   Serbia , no. 32299/08, §§ 34-35, 2 October 2012). 67.     The principles established by the Court in its case-law are the following: (a) The State’s procedural obligation to carry out an effective investigation has evolved into a separate and autonomous duty, capable of binding a State regardless of whether the death, as a triggering event, took place before or after the entry into force of the Convention with respect to that State (see Šilih v. Slovenia [GC], no. 71463/01, §§ 159 and 162, 9   April   2009, and Velcea and Mazăre v. Romania , no. 64301/01, § 81, 1   December 2009). (b) However, having regard to the principle of legal certainty, the Court’s temporal jurisdiction as regards compliance with the procedural obligation of Article   2 in respect of deaths that occur before the critical date is not open-ended. (i) Firstly, only procedural acts and/or omissions occurring after that date   can fall within the Court’s temporal jurisdiction. The reference to “procedural acts” must be understood in the sense inherent in the procedural obligation under Article 2, namely, acts undertaken in the framework of criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party. The mention of “omissions” refers to a situation where no investigation or only insignificant procedural steps have been carried out but where it is alleged that an effective investigation ought to have taken place (see Janowiec and Others v.   Russia   [GC], nos. 55508/07 and 29520/09, §§ 142-44, ECHR 2013). (ii) Further, there must be a “genuine connection” between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligation imposed by Article 2 of the Convention to come into effect. In order for a “genuine connection” to be established, it means, in practice, that the period of time between the death as the triggering event and the entry into force of the Convention in respect of that State must have been reasonably short (in principle, not exceeding ten years) and most of the investigative steps required by this provision must have been carried out, or ought to have been carried out, after the entry into force (see   Janowiec , cited above, §§   146-48). (c) Lastly, even where the “genuine connection” test is not satisfied, the Court can, in extraordinary situations, exercise its jurisdiction (for more details, see Janowiec , §§ 149-51). 68.     In the present case, while the death and most of the preliminary investigative measures took place two years before 3 March 2004, there have been almost four years of procedural acts as of this critical date, including further important investigative measures and the issuing of all the relevant decisions by the investigating authorities. The applicant’s complaint under the procedural aspect of Article 2 mainly concerns these latter matters. In line with the jurisprudence set out above, the Court considers that a procedural obligation arose in the present case requiring the authorities of the respondent State to investigate Mr Dejan Petrović’s death. 69.     The Court further finds that it has temporal jurisdiction to examine the applicant’s complaint in so far as it concerns procedural acts or omissions occurring in the period subsequent to the ratification date. It will nevertheless, for reasons of context and whilst examining the situation complained of as a whole, also take into account any and all relevant events prior to that date (see, in the context of Article 2, Mladenović , cited above, §   53, and, in the context of Article 3, Milanović v.   Serbia , no.   44614/07, §   78, 14   December 2010). 3.     Conclusion on admissibility 70.     The Court considers that the applicant’s complaint under Article 2 of the Convention raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 71.     The applicant complained that the authorities had acted neither of their own motion nor effectively. In particular: (a) the fact that it had taken four years for the authorities to undertake only preliminary investigative activities could not satisfy the criteria of promptness or reasonable expedition of the investigation; (b) the investigation had been based entirely on the testimony of police officers and autopsies; (c) the decisions not to investigate further had not been sufficiently reasoned, in contravention of the requirements of the relevant domestic law; (d) the Supreme Court, instead of examining carefully any deficiency, had simply repeated the same reasoning without establishing the relevant facts of the case; (e) the real facts of the case had never actually been established; and (f) the applicant’s procedural right to be properly involved in the investigation had not been observed. 72.     The Government, recounting in detail the facts described above, argued that the various national authorities had done everything they could in the present case and had consistently established the cause of Mr   Dejan   Petrović’s death. An independent prosecutor had carried out the investigation, and the police officers involved in the investigation had been hierarchically independent and/or superior to the police officers present during the incident. The Government submitted that the investigation into the death of the applicant’s son had consequently fully met the requirements of impartiality and thoroughness laid down in Article 2 of the Convention. 2.     The Court’s assessment (a)     General principles 73.