CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 octobre 2019

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page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sD165B68A { width:169.59pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }       THIRD SECTION   CASE OF ALMAŠI v. SERBIA (Application no. 21388/15)         JUDGMENT     STRASBOURG 8 October 2019     FINAL   24/02/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Almaši v. Serbia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Vincent A. De Gaetano, President,   Georgios A. Serghides,   Paulo Pinto de Albuquerque,   Helen Keller,   Branko Lubarda,   Alena Poláčková,   Gilberto Felici, judges,, and Stephen Phillips, Section Registrar, Having deliberated in private on 17 September 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 21388/15) 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 Šandor Almaši (“the applicant”), on 29 April 2015. 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 former Agent, Ms Nataša Plavšić. 3.     The applicant complained of having been ill-treated by the police on 18 April 2011, as well as about the respondent State’s subsequent failure to conduct an investigation into this incident. The applicant furthermore complained of a lack of fairness in the criminal proceedings that had been brought against him – in particular, that his conviction had been based on his statement of 18 April 2011, which had itself been obtained in breach of his right to the legal assistance of his own choosing and as a consequence of the said police abuse. 4.     On 1   April 2016 the applicant’s complaints were communicated to the Government, while the remainder of the application was declared inadmissible, pursuant to Rule 54   §   3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1979 and lives in Male Pijace, Serbia. 6.     On 18 April 2011, at around 2 p.m., a certain S.Š. was brought to the Regional Centre of the Border Police ( Regionalni centar granične policije – “the RCBP”) in Subotica to be questioned about the alleged commission of the crime of illegal border crossing and people smuggling ( nedozvoljen prelaz državne granice i krijumčarenje ljudi ). In his statement S.Š. confessed to taking part in such an operation and named three persons as his accomplices. One of them he identified as Ć, whose residence was in Subotica, while the other two were persons whom he had never met before and did not know by name. 7.     On 18 April 2011, at about 4 p.m., the applicant’s home was searched by the police on the basis of an order issued by an investigating judge. According to the official record of the search, the applicant waived his right to have a lawyer present while the search was carried out. Moreover, in the course of the search the applicant’s phone, among other things, was taken from him. The record of the search was signed (i) by the police officer in charge of the operation, (ii) the official who had compiled the record, (iii)   two witnesses who had been present during the search (one of them being the applicant’s future sister-in-law), and (iv) the applicant himself. 8.     Shortly thereafter the applicant was also brought to the RCBP in connection with the alleged crime of illegal border crossing and people smuggling. 9.     At 5 p.m. the police ordered his detention for a period of forty-eight hours. The applicant was also given a forty-eight-hour detention order, which stated that he had been deprived of his freedom on suspicion of having committed the above-mentioned offence. 10.     Between 6.10 p.m. and 6.40 p.m. the applicant was questioned by the police in this regard. He was also afforded a legal-aid lawyer.   According to the minutes of his questioning, the applicant’s confession was preceded by a confidential conversation with R.R., his legal-aid lawyer. The applicant was also informed of his right, inter alia , to remain silent and to appoint a lawyer of his own choosing. According to the minutes, the applicant explained that he had committed the crime in question because of his poor financial situation and his need to support his children. The record of his questioning was signed by the police officer who had questioned the applicant, the applicant’s legal-aid lawyer, the officer who produced the record, and the applicant himself (after being allowed – at his request – to read it and having registered no objections). The public prosecutor ( javni tužilac ) was informed that the applicant was to be questioned, but did not attend. 11.     According to the applicant, his legal-aid lawyer was chosen by the police officers from a list of lawyers supplied by the Bar Association. The applicant stated that immediately prior to the lawyer’s arrival, the applicant had been slapped a couple of times across the face by a police officer. He then had confessed to committing the crime in question, fearing further police abuse.   Only after the conclusion of the questioning had the applicant been allowed to call L.F., his partner at the time, in order to instruct her to retain the services of V.J.Đ. as the lawyer of his own choosing. According to the applicant, on 18 April 2011, at around 9.00 p.m., L.F. first called V.J.Đ., and by 10.00 p.m. she had formally signed the relevant power of attorney on behalf of the applicant. On 19 April 2011, at 8.46 a.m., that authorisation was lodged with the Subotica Court of First Instance ( Osnovni sud ). 12.     On 19 April 2011 the applicant was taken to the investigating judge ( istražni sudija ). From that moment onwards he was represented by V.J.Đ. In the presence of the public prosecutor the applicant complained to the judge that on the premises of the RCBP he had been slapped a number of times across the face by an officer on 18 April 2011. The applicant submitted that during the questioning two young officers had been present and that he had been slapped by the shorter one of those two. He did not know their names. Furthermore, the applicant submitted that he had not been able to say anything to the legal-aid lawyer about the abuse because the officer who had slapped him had been present in the interview room at all times. The investigating judge asked the applicant whether he needed medical assistance. The applicant replied that although he felt some pain he did not need medical help. As regards the charges against him, the applicant refused to answer any questions. The questioning before the investigating judge lasted from 3.10 p.m. until 3.35 p.m., after which the applicant was released. 13.     On the same day the investigating judge heard the co-accused, S.Š., who confessed to the crime in question and implicated the applicant in the same offence. 14.     Moreover, on the same day an identity parade was carried out and N.S., a witness, recognised with a degree of 70-80% certainty the applicant as one of the persons who had guided the border crossing on the night in question. Before the identity parade was carried out the witness described the person – whom he subsequently picked out of the identity parade line-up – as having had a hood on and being “dark in the face”. He furthermore stated that he was not sure if he could identify the persons who had organised the border crossing but that he had “seen the entire face” of their guide. The applicant’s lawyer objected to the procedure, noting that the witness in question had not been certain of his identification, and that the applicant did not have “a dark face”. 15.     On 20 April 2011, at about 9 a.m., the applicant was examined by a private medical doctor of his own choosing. The doctor noted that the applicant complained of having sustained blunt-force trauma two days earlier. Specifically, the applicant complained to the doctor that he had been hit in the face – around his left eye – which had caused him eye pain and heightened sensitivity to light. The doctor herself found that the tissue around the applicant’s temple and left eye was slightly swollen and sensitive to the touch, with no change in colour. 16.     On 28 April 2011 the Subotica public prosecutor’s office ( Osnovno javno tužilaštvo ) indicted the applicant and S.Š. for the crime in question. 17.     On 18 May 2011 the applicant’s lawyer provided the Court of First Instance with the above-mentioned doctor’s report, maintaining that this proved that he had been ill-treated on 18   April 2011. 18.     Between 12 July 2011 and 14 September 2011 four hearings were held or adjourned before the Court of First Instance. 19.     The applicant’s co-accused, S.Š., reaffirmed his earlier statements, incriminating himself as well as the applicant, but refused to answer any questions. 20.     G.T., a witness, described what had happened on the night in question but maintained that the applicant had not been involved. 21.     T.L., a police officer, stated that the applicant had not been subjected to ill-treatment on 18 April 2011. After being properly advised of his procedural rights, the applicant had said that he did not have a lawyer and that the police should thus provide him with a legal-aid lawyer. T.L. had stated that after the questioning had been concluded the applicant had used a telephone to call someone but that he did not know whom. 22.     S.V., another police officer, likewise stated that the applicant had not been abused or threatened on 18 April 2011. He added that the legal-aid lawyer had indeed been selected from a list of lawyers provided by the Bar Association. Whenever certain lawyers were unavailable in a situation such as the applicant’s, other lawyers were selected from this list. There was, however, no record of which lawyers may have been contacted in respect of the applicant but had been unavailable on 18 April 2011. 23.     R.R., heard in the capacity of a witness, recounted that she had been invited by the police to act as the applicant’s legal-aid lawyer on 18 April 2011. She had not noticed any injuries on the applicant’s face. Prior to the questioning, she had had a conversation with the applicant during which he had not said that he had been subjected to any ill-treatment. Moreover, the applicant had not objected to being provided with a State-appointed lawyer and had not complained that he had been deprived of his right to a telephone call. Lastly, R.R. acknowledged that she had not been provided with a formal decision by the police authorising her to act on behalf of the applicant. 24.     The applicant reaffirmed the statement that he had given to the investigating judge, alleged that he had been unable to contact a lawyer of his own choosing on 18 April 2011 (since his phone had already been taken away by the officers), and claimed that he had been slapped by the police prior to the arrival of the legal-aid lawyer. In respect of the charges brought against him, the applicant remained silent. 25.     The investigating judge, heard in the capacity of a witness, stated that during the questioning she had not noticed any injuries on the applicant’s face. She added that she had been approximately two metres away from the applicant during that time. 26.     The applicant’s lawyer proposed that the medical doctor who had examined the applicant on 20 April 2011 be heard as a witness. He also asked the court to hear the applicant’s’ former partner in the same capacity, as she had allegedly seen the applicant after the questioning of 19 April 2011 and had observed bruising on his body. Lastly, the applicant’s lawyer requested that a list of legal-aid lawyers provided by the Bar Association be obtained in order to ascertain whether the appointment of the legal-aid lawyer in the case indicated any irregularities. The Court of First Instance rejected those proposals. 27.     On 20 July 2011 the Court of First Instance decided to exclude the applicant’s statement of 18 April 2011 from the case file on the basis that the official record prepared on that occasion did not contain any reference to an explicit declaration by the applicant as to whether he wanted to hire a lawyer of his own choosing or would instead be willing to accept a State-appointed lawyer. The record instead merely indicated that the applicant had been informed of his procedural rights in this respect. 28.     Following an appeal lodged by the public prosecutor, on 3 August 2011 the Novi Sad Court of Appeal ( Apelacioni sud ) quashed this decision. It noted, inter alia , that the applicant had been properly advised of his procedural rights and had clearly made his choice thereafter, through the de   facto acceptance of his legal-aid lawyer, notwithstanding the absence of an explicit statement to this effect in the record dated 18   April 2011. 29.     On 16 September 2011 the Court of First Instance found the applicant and S.Š. guilty of illegal border crossing and people smuggling and sentenced them each to one year’s imprisonment. In so doing, it referred, inter alia , to the applicant’s own confession of 18   April 2011, the statements of the co-accused, S.Š., and the identification of the applicant by N.S., who was, in particular, deemed not to have had a personal interest in not being truthful. The witness G.T., by contrast, was seen as having had reason to exculpate the applicant in view of his connection with the applicant’s future sister-in-law. The court also noted that the applicant’s procedural rights had been fully respected in terms of choice of counsel and otherwise and opined that there had been no credible evidence of the applicant having been ill-treated in police custody. The court deemed it unnecessary to hear as witnesses the medical doctor who had established the applicant’s condition on 19 April 2011 or his partner at the time. As regards the doctor, it considered that the injuries in question “could not be linked” to the applicant’s questioning on 18 April 2011, especially in view of the statements given by the witnesses in this regard denying any abuse. Moreover, the medical examination itself had only taken place belatedly. With respect to the applicant’s partner, the court held that there was no need to hear her either, given the abundance of other evidence on the issue. 30.     On 17 October 2011 the applicant lodged an appeal against this judgment, maintaining, inter alia , that: (i) his confession had been coerced from him by means of police abuse and intimidation; (ii) he had been unable to question the co-accused S.Š., who had incriminated him; (iii) the identification procedure involving N.S. had been flawed; (iv) the appointment of the legal-aid lawyer had been irregular; and (v)   it had been unreasonable to reject his proposals that the court hear his partner at the time and the medical doctor who had examined him. 31.     On 1 December 2011 the Court of Appeal upheld the first-instance judgment, endorsing its reasoning. It added that the other person accused in the proceedings, S.Š., had been fully entitled not to answer any questions if he so wished, being a defendant in a criminal case himself, and that none of the other irregularities alleged or objections raised by the applicant in his appeal could be accepted. This included the objection regarding the appointment of the legal-aid lawyer where, regardless of any issues connected to the selection procedure, the applicant had clearly accepted this appointment at the time, as evidenced by his cooperation with the said lawyer, his willingness to give a statement in her presence and the absence of any objections in this regard on 18 April 2011. 32.     On 22 June 2012 the applicant’s lawyer lodged a constitutional appeal wherein he repeated and/or restated the arguments raised earlier. He also provided the Court with a list of lawyers published by the Bar Association, maintaining that the requirement to pick a legal-aid lawyer successively had been disregarded in his case (see paragraph 43 below). Specifically, despite the fact that the legal-aid lawyer appointed to represent the applicant’s co-accused, S.Š., had been much higher on that list than the applicant’s own legal-aid lawyer no official explanation was ever offered for the selection of the lawyer that was appointed to the applicant. Admittedly, the list attached to the constitutional appeal was not a list of legal-aid lawyers only but rather a list of all lawyers who were members of the bar association in question. However, some 50% of them would probably have been interested in providing legal aid to defendants in criminal cases, which meant that the list was an indicative one. In any event, the criminal courts had been asked to obtain a list of legal-aid lawyers provided by the Bar Association, but had refused to do so. 33.     On 31 March 2015 the Constitutional Court ( Ustavni sud Srbije ) rejected the appeal as lacking proper constitutional reasoning; notably, it deemed it as yet another attempt to have reassessed the outcome of the criminal proceedings brought against the applicant. 34.     In the meantime, on 23 December 2013, the Court of First Instance apparently released the applicant from serving the remainder of his prison sentence, the applicant having thus served some nine months in all. 35.     The Government, for their part, maintained that there was no evidence that the applicant had ever been abused or intimidated by the police. They furthermore contended that there had likewise been no procedural or other shortcomings in the impugned criminal proceedings or indeed in the overall conduct of the Serbian authorities in respect of the present case. RELEVANT DOMESTIC LAW The Criminal Code ( Krivični zakonik , published in the Official Gazette of the Republic of Serbia – OG RS – no. 85/05, amendments published in OG RS nos. 88/05, 107/05, 72/09 and 111/09) 36.     Article 137 of the Code reads as follows:   “1.   Whoever ill-treats another or treats another in a humiliating and degrading manner shall be punished with imprisonment of up to one year. 2.     Whoever causes severe pain or suffering to another for such purposes as obtaining from him or a third person a confession, a statement or information, or intimidating or unlawfully punishing him or a third person ... shall be punished with imprisonment from six months to five years. 3.     If the offence specified in paragraphs 1 and 2 above is committed by an official acting in an official capacity, the official concerned shall be punished for the offence specified in paragraph 1 with imprisonment of between three months and three years, and for the offence specified in paragraph 2 with imprisonment of between one and eight years.” The 2001 Code of Criminal Procedure ( Zakonik o krivičnom postupku , published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – no. 70/01, amendments published in OG FRY no. 68/02 and in OG RS nos. 58/04, 85/05, 115/05, 49/07, 20/09, 72/09 and 76/10) 37.     Articles 12 and 89 § 8 prohibit, inter alia , any and all violence aimed at extorting a confession or a statement from a suspect and/or an accused. 38.     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. 39.     Articles 19, 20, 46 and 235 provide, inter alia , that formal criminal proceedings may be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex officio , such as the ones here at issue, 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 learned of the incident from a criminal complaint lodged by the victim or another person, or indeed even if he has only heard rumours to that effect. 40.     Article 224 provides, inter alia , that a criminal complaint may be lodged in writing or orally, and that a court of law, should it receive such a complaint, shall immediately forward it to the relevant public prosecutor. 41.     Article 61 provides that should the public prosecutor decide that there is no basis to prosecute, he must inform the victim of this decision; the victim will then have the right to take over the prosecution of the case on his own behalf, in the capacity of a “subsidiary prosecutor”. 42.     Article 104 § 1 provides, inter alia , that a witness may be required to identify another person in his presence and in the presence of other unknown individuals whose personal characteristics are similar to the ones described by the witness in his prior statement. 43.     Articles 5 § 1, 71,   72, 226 §§ 8 and 9, 227 § 2, 228 § 1 and 229 §§ 6, 7 and 8, 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, to be provided with a legal-aid lawyer paid for by the State. If the arrested person’s questioning has been carried out in accordance with the law, a statement given by him on this occasion may be used as evidence in the subsequent criminal proceedings. Legal-aid lawyers must be appointed on a successive basis according to the Cyrillic alphabet ( po azbučnom redu ) from a list of lawyers provided by the Bar Association. Should there be a departure from this rule, the police must provide an explanation and make an official record thereof. The Bar Association itself shall publish, on its website, a list of all lawyers appointed to act as legal-aid lawyers by the police, together with other relevant information. 44.     Articles 226 § 8, 228 § 1 and 229 § 5, taken together, furthermore provide that, inter alia , a person arrested by the police shall have the right to contact his lawyer, directly or through family members, including by means of a telephone. 45.     Article 177 §§ 1 and 2 provides , inter alia , that a person arrested by the police shall be entitled to read the record of his questioning before he signs it, or have that record read to him. Should such a person refuse to sign the minutes, this refusal shall be noted on the record, as shall the reason given therefor. 46.     Article 75 § 2 provides that a person arrested by the police, while in detention, shall have the right to a confidential consultation with his legal counsel before giving his first statement. This consultation may only be overseen by means of visual, not audio, monitoring. The 2011 Code of Criminal Procedure ( Zakonik o krivičnom postupku , published in OG RS no. 72/11, amendments published in OG RS nos. 101/11, 121/12, 32/13, 45/13 and 55/14) 47.     Under Articles 482 § 1, 483 § 1, 485 §§ 1 and 3, 489 § 3 and 492, a criminal conviction may be overturned or quashed and the case retried where the European Court of Human Rights has found that a convicted person’s rights have been violated in the course of the proceedings domestically. 48.     This Code of Criminal Procedure entered into force on 1   October   2013, thereby repealing the earlier Code. RELEVANT INTERNATIONAL FINDINGS 49.     In its report to the Government on its visit to Serbia from 1 until 11   February 2011, which was made public on 14 June 2012, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) noted as follows: “13. The delegation received several allegations of physical ill-treatment by the police (consisting of slaps, punches, kicks and truncheon blows) at the time of apprehension and/or during questioning, in the latter case mostly in order to obtain confessions. As was the case in 2007, it would appear that juveniles suspected of serious criminal offences remain particularly exposed to the risk of physical violence at the hands of the police. Further, the delegation received some accounts of verbal abuse and threats during questioning. The CPT recommends that police officers throughout Serbia be reminded that all forms of ill-treatment (including verbal abuse) of persons deprived of their liberty are not acceptable and will be the subject of severe sanctions . ... 15.     In the Aleksinac, Niš and Voždovac police establishments, the delegation found – in offices used for police interviews – various unlabelled non-standard items (such as wooden sticks and iron rods). The CPT calls upon the Serbian authorities to take decisive steps to ensure that any non-standard objects are immediately removed from all police premises where persons may be held or questioned. Any items of evidence relating to cases under investigation should be appropriately labelled, recorded and kept in a dedicated property store . ... 17.     At the outset of the visit, the Serbian authorities informed the delegation that there was now a unified system for recording complaints against police misconduct. The Ministry of Interior indicated that some 4,000 such complaints had been registered in 2010, including some 300 concerning torture or other forms of ill-treatment, and that four police officers had been charged with ill-treatment as a result of investigations in the course of that year. ... 21.     Most of the persons interviewed by the delegation confirmed that they had been offered the possibility of contacting a lawyer shortly after apprehension. This usually included the presence of the (most often ex officio ) lawyer during the questioning and the possibility to meet the lawyer in private. However, as had been the case during the 2007 visit, the legislation in force failed to mention the exact time when the right of access to a lawyer becomes effective. In practice, it would appear that such access was not always granted to persons in police custody as from the very moment when they were obliged to remain with the police. Further, the current law still does not expressly grant the right of access to a lawyer to persons summoned to the police, obliged to remain in a police establishment and interviewed as “witnesses”. The CPT reiterates its recommendation that the Serbian authorities take steps to ensure that the right of access to a lawyer applies effectively as from the very outset of the deprivation of liberty by the police. Anyone who is under a legal obligation to attend and stay at a police establishment (e.g. as a "witness") should also be expressly granted the right of access to a lawyer. ” THE LAW ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 50.     The applicant complained under Article 3 of the Convention of the police ill-treatment of 18 April 2011, and the respondent State’s subsequent failure to conduct an investigation into this incident. 51.     Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Admissibility 52.     The Government did not raise any admissibility objections. Since the complaints are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds, they must therefore be declared admissible. Merits The procedural aspect (a)    The parties’ submissions (i)   The applicant 53.     The applicant reaffirmed that there had been no proper official investigation into his allegations of police abuse, despite the fact that they had been raised personally (that is to say face-to-face) before the investigating judge and the public prosecutor and that a pertinent medical report had also been provided to the Serbian authorities. 54.     Moreover, two particularly relevant witnesses who could have offered valuable testimony in respect of the applicant’s injuries – specifically the medical doctor who had examined him on 20   April 2011 and his partner at the time, who had seen him following his release from police custody – were not heard by the criminal courts, without any proper reasoning being given for the decision not to hear them. 55.     Lastly, the applicant reiterated that no criminal investigation capable of identifying and punishing the perpetrators of the ill-treatment in question had been opened. The persons who had been heard in respect of the abuse alleged by the applicant had only given statements as part of the criminal proceedings brought against the applicant himself. (ii)   The Government 56.     The Government maintained that there had been a proper official investigation into the applicant’s allegations of police ill-treatment. 57.     The relevant witnesses had all been heard after the applicant had first alleged that he had been ill-treated, although this allegation had only been made a month after the alleged incident. The persons questioned had either denied abusing the applicant themselves or had had no knowledge of the abuse, and none of them had seen any injuries on the applicant’s face. As regards the medical doctor who had examined the applicant on 20 April 2011 and the applicant’s partner at the time, the Government maintained that the criminal courts had declined to hear them since they would either have been inclined to testify in favour of the applicant on the basis of a close personal relationship with him, or had had no direct knowledge of how the injuries in question had been sustained. In any event, traces of any injuries would have disappeared by then. 58.     The criminal courts had nevertheless taken into account the medical report, even though it did not pronounce on the cause of the applicant’s injuries, but they ultimately had held that the applicant’s abuse allegations, given the available evidence, had lacked credibility and had instead been motivated by his wish to avoid criminal responsibility. Indeed, the applicant had moreover never lodged a formal criminal complaint against the officers concerned or even an objection with the Ministry of Internal Affairs, thus further undermining his allegations of abuse. 59.     The Government lastly noted that even though the applicant’s statement of 18   April 2011 had been temporarily excluded from the case file, this exclusion had been based on issues regarding the applicant’s choice of counsel, not his allegations of police ill-treatment. (b)    The Court’s assessment 60.     The Court reiterates that where a person raises an arguable claim or makes a credible assertion that he has suffered treatment contrary to Article 3 at the hands of State agents, that provision, read in conjunction with the general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see, among many authorities, Assenov and Others v.   Bulgaria , 28 October 1998, § 102, Reports of Judgments and Decisions 1998 ‑ VIII; Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV, and Bouyid v. Belgium [GC], no. 23380/09, § 124, ECHR 2015). 61.     Whatever the method of investigation, the authorities must act as soon as an official complaint has been lodged. Even when, strictly speaking, no complaint has been made, an investigation must be started if there are sufficiently clear indications that ill-treatment has been used (see Stanimirović v. Serbia , no. 26088/06, § 39, 18 October 2011). 62.     The Court has also held that the investigation should be capable of leading to the identification and punishment of those responsible. If not, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for State agents to abuse the rights of those within their control with virtual impunity (see Labita , cited above, § 131). The investigation must also be thorough: the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. Furthermore, the investigation must be prompt and independent. Lastly, it must afford a sufficient element of public scrutiny to secure accountability. While the degree of public scrutiny required may vary, the complainant must be afforded effective access to the investigatory procedure in all cases (see Batı and Others v. Turkey , nos. 33097/96 and 57834/00, § 137, ECHR 2004-IV, and Krsmanović v. Serbia , no. 19796/14, § 74, 19 December 2017). 63.     Turning to the present case, the Court considers that the applicant’s complaint of police abuse was such as to require an effective official investigation (see paragraphs 11 and 12 above), it being noted that even where there is insufficient evidence to show that an applicant had in fact been ill-treated the procedural obligation to investigate may still arise, particularly when, such as in the present case, there is a potential for abuse in a detention context (see, mutatis mutandis , Stepuleac v. Moldova , no. 8207/06, § 64, 6 November 2007). 64.     The Court furthermore notes that the applicant complained of having been abused by the police. He did so before the investigating judge and in the presence of a public prosecutor, as well as the trial and appellate chambers. Yet, despite the Convention and the domestic law requiring that an allegation of this sort be examined ex officio (see paragraphs 61 and 39 above, in that order), no separate abuse-related investigation aimed at the identification and punishment of those responsible was ever instituted by the relevant authorities. The criminal case against the applicant, wherein he raised his abuse complaints in order to have some of the impugned evidence excluded, was certainly not capable of the latter (see, regarding precisely this point, Hajnal v. Serbia , no. 36937/06, § 99, 19 June 2012, and Lakatoš and Others v. Serbia , no. 3363/08, § 82, 7   January 2014). 65.     Moreover, the criminal courts in these proceedings, inadequate as they were for the purpose of affording redress in respect of the ill-treatment alleged, themselves declined to hear two witnesses proposed by the applicant. Specifically, they deemed it unnecessary to hear the medical doctor who had established the applicant’s condition on 19   April 2011 or his partner at the time. The former proposed witness was rejected because injuries in question “could not be linked” to the applicant’s questioning of 18 April 2011, in view of (i) the statements given by other witnesses denying any abuse or denying having seen any injuries and (ii) the fact that the medical examination itself had only taken place belatedly. At the same time, the latter proposed witness was rejected because it was deemed that there was no need to hear her, given the abundance of other evidence on the issue. The Court, however, cannot accept this reasoning because the medical doctor, if heard, might have explained whether the injuries in question could have been caused in the manner alleged by the applicant and clarified any issues regarding the time it would take for them to become visible, while the applicant’s partner stated that she had seen the applicant after his release from police custody and could therefore also have potentially provided meaningful testimony. It is, of course, understood that had those witnesses been heard it would ultimately have been up to the courts themselves to consider those statements in conjunction with the other available evidence and to assess their probative value. 66.     In the light of the foregoing, the Court concludes that the respondent State’s authorities failed to carry out an effective official investigation into the applicant’s allegations of ill-treatment. There has, consequently, been a violation of Article 3 of the Convention under its procedural limb. The substantive aspect (a)    The parties’ submissions (i)   The applicant 67.     The applicant reaffirmed that he had suffered police abuse on 18   April 2011. He furthermore maintained that the medical report documenting his injuries had been submitted to the Court of First Instance once he had met with his lawyer, V.J.Đ, following the doctor’s examination. Since the two did not live in the same town, communication and coordination between them had taken more time and effort than would otherwise have been the case. 68.     The applicant had refused the medical assistance offered to him by the investigating judge because he had not felt much pain at that time. Upon his waking up on 20 April 2011, however, his injuries had been more painful and more visible and had required medical attention. In any event, no one had ever disputed the veracity of the findings of the medial report issued on that occasion. Both the investigating judge and the public prosecutor could also have ordered the applicant’s medical examination following his first complaint of police ill-treatment, but they had never done so. The applicant would certainly not have opposed such an order. 69.     There was, likewise, no credibility to the hypothesis that the applicant could have sustained his injuries anywhere but in police custody. There was no evidence to this effect, or even a theory as to what alternatively could have happened. Since the applicant had been in good health at the time of his arrest and had been in an injured state upon release, it was up to the Government to come up with a plausible explanation as to how other than through police abuse the injuries could have been sustained. 70.     The criminal courts had furthermore refused to hear either of the witnesses proposed by the defence – specifically, the medical doctor who had examined him on 20 April 2011 and his partner at the time, each of whom had particularly relevant testimony to offer in terms of the alleged abuse. 71.     The applicant lastly noted that although none of the witnesses who had been heard had acknowledged seeing the injuries on his face this was not of particular significance since none of them had been medically trained or had seen the applicant on 20   April 2011, which was when his injuries had become more visible. Moreover, the investigating judge herself had been standing between three and three and a half metres away from the applicant and hence too far to have observed the injuries properly. (ii)   The Government 72.     The Government maintained that the applicant had not suffered any ill-treatment while in police custody. His claim to this effect had rather been aimed at avoiding criminal responsibility and had first been made once he had retained the legal services of V.J.Đ. 73.     Even though it had been in the applicant’s best interests to visit a doctor as soon as possible upon his release on 19 April 2011 at around 3.35   p.m., in order for the alleged injuries to be documented, he had only been medically examined on 20 April 2011 at around 9 a.m. Therefore, while not disputing the accuracy of the doctor’s findings following the applicant’s examination, the Government maintained that the applicant could have sustained those injuries elsewhere than in police custody. Moreover, the medical report that had been produced on this occasion had been submitted to the Court of First Instance a whole month after the alleged abuse and had not specified the cause of the injuries in question. Although the applicant had lived in a village some 40 kilometres away from the offices of his lawyer V.J.Đ., there had been regular and cheap transport available, meaning that the two could have met and provided the court with the said medical report earlier. 74.     Following the applicant’s allegations of police ill-treatment raised before the investigating judge, the latter had asked the former if he needed medical assistance. The applicant, however, had declined this offer, thus rendering his claim of abuse even less credible. Moreover, the investigating judge, who had been some two metres away from the applicant, had personally observed no injuries. 75.     As regards the other witnesses who had been heard in respect of the abuse allegations in the course of the criminal proceedings brought against the applicant, none had confirmed them and none had testified that any injuries had been visible on the applicant’s face shortly after the alleged incident. In view of the kind of injuries subsequently noted by the medical doctor who had examined the applicant, no medical expertise would have been necessary for those witnesses to have noticed them had they existed at the time. 76.     Lastly, the Government contended that the refusal of the criminal courts to hear the medical doctor who had examined the applicant on 20   April 2011 was of no relevance since traces of any injuries would have disappeared by then. The doctor had, moreover, not opined in her medical report – and nor could she have done so – as to what exactly had caused the injuries in question. As regards the applicant’s partner, L.F., there was no evidence that she had indeed seen the applicant immediately upon his release, and in any event, her testimony was bound to have been biased in favour of the applicant. (b)    The Court’s assessment (i)   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 of 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 s