CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 janvier 2012

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He is represented before the Court by Mr   B.   Klakočar, a lawyer practising in Krško. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The circumstances in which S.P. died and the action taken to establish the cause of his death On 3 April 2000 several specially equipped officers of the Ljubljana Police entered the apartment building in which the applicant’s son, S.P., lived in an attempt to catch him in flagrante delicto of trading in drugs. At a disputed time between 12.00 and 12.30 a number of officers intercepted S.P. in the hallway leading to his apartment and restrained him, using force. The applicant eventually suffered an asthma attack while being subdued, and died in the hands of the police. S.P.’s wife, M.P., was also handcuffed and pushed to the floor, where she remained until she was allowed to approach S.P.’s body. She and one of the officers tried to revive him, but to no avail. According to the statement given to the police by M.P. on 9 October 2000 and her written statement on which the investigating judge relied in his decision of 28 May 2002 (see below), the events leading to S.P.’s death happened as follows. When the officers encountered S.P. they started hitting him with blunt objects, such as Maglite hand torches and the butts of their handguns. They then pushed him into an enclosed space and continued shouting and beating him. That was when he suffered an asthma attack. S.P.’s five–year-old son, who was at the scene, M.P. and S.P. himself repeatedly requested that an inhaler be given to him. M.P., who could hear her husband calling for help and gasping for breath, was not allowed by the police to go over to him. She saw S.P. wheezing and having a seizure as the police continued to beat him. When she again asked them to let S.P. take his medicine, the officers said that he was just faking and that they would take care of him. When she could no longer hear S.P. she heard one of the officers reporting over the phone that S.P. was refusing to stand up. After a while she got worried at S.P.’s continued silence and told the officers that he could die if he was not given his medicine. Although she was handcuffed, she reached into the drawer with the medicine and gave it to an officer, who told her to administer it herself, which she could not as her hands were still cuffed. When the commanding officer entered the apartment, M.P.’s handcuffs were removed and she gave S.P. a heart massage and attempted artificial respiration, to which he did not react. Meanwhile, the commanding officer of the unit twice rang the station radio control room asking for back-up and an ambulance, which arrived at 13.00, at which time the applicant was pronounced dead. After the body had been taken away, the police continued with the house search. At 13.50 the investigating judge and public prosecutor on duty arrived at the scene. An autopsy report was prepared on 4 April 2000. As the cause of death it listed suffocation as a result of an asthma attack. It would appear that another report was prepared on 17 April 2000 by an expert, B.Š., from the Institute for Forensic Medicine, who found that S.P. had suffered a number of injuries – as a result of being punched and beaten with hard blunt objects – which might, among other things, have contributed to his asthma attack. On 13 September 2000 an internal commission was set up by the Ljubljana Police to investigate the circumstances of S.P.’s death. It consisted of four Ljubljana police officers. On 11 October 2000 the commission issued its findings, which were referred to in a report prepared by the Ljubljana police on 23 October 2000. The latter report was forwarded to the Ljubljana District Prosecutor. 2.     Criminal complaint lodged by the applicant and M.P. The applicant and M.P. lodged a criminal complaint against five police officers and a commanding officer for unlawful deprivation of liberty, unlawful personal search, failure to provide help, mutilation of the body, violation of the privacy of the home, abuse of office and violation of dignity by abuse of power. On 1 February 2001 the Ljubljana District Prosecutor dismissed the criminal complaint on the basis of a police report, the report by the investigating judge following a visit to the scene of the death and the forensic report. She noted that the officers had handcuffed S.P. because he had attempted to escape, and that when he resisted arrest four officers had had to restrain him. The prosecutor found that the allegation that S.P. had been beaten by hard, blunt objects was not supported by the report of the doctor who had gone to the scene. The decision further notes that while the forensic report indicated that S.P. had sustained injuries which could have been caused by repeated blows from hard, blunt objects, and had sustained head injuries which could have been caused by punches, those injuries could by no means have caused S.P.’s death. 3.     Request for an investigation lodged by the applicant and M.P. Following the dismissal of their criminal complaint, the applicant and M.P., in the capacity of subsidiary prosecutors ( subsidiarni tožilec ), lodged a request for an investigation. They alleged that five police officers under the supervision of the commanding officer had beaten S.P. while he was handcuffed, dragged him around and laughed at him, and that they had refused to give him his medicine despite having been asked by M.P. to do so. The officers were alleged to have committed criminal offences under Article 129 (negligent manslaughter of S.P.) and Article 270 (violation of S.P.’s dignity by abuse of power) of the Criminal Code. Three other officers were alleged to have committed a criminal offence under Article 152 §§ 1, 2 and 3 of the Criminal Code by searching the apartment after S.P.’s death without having authority to do so. In addition, the applicant and M.P. alleged that the officers had committed a number of other criminal acts, namely: unlawful personal search of S.P, deprivation of liberty of S.P. and M.P, abuse of office and violation of dignity by abuse of power against M.P. As the commanding officer died in the course of the proceedings, the applicant and M.P. withdrew the part of the request which concerned him. On 28 May 2002, after hearing the accused officers, the investigating judge of Ljubljana District Court allowed the investigation. He found that M.P.’s statements, the records of the interviews conducted with some of the accused officers after the incident and those given before him, as well as the autopsy report and the opinion of the forensic institute, gave rise to a reasonable suspicion that the alleged criminal offences had been committed. He rejected the request for an investigation in so far it concerned the offences of unlawful personal search of S.P, deprivation of liberty of S.P. and M.P., abuse of office and violation of dignity by abuse of power against M.P. The accused officers appealed against the part of the decision by which the investigating judge had allowed the investigation. On 27 September 2002 a panel of three judges of Ljubljana District Court upheld the appeal and discontinued the proceedings against all of the accused officers. In the first part of the decision it found that the officers had eventually released both S.P. and M.P., allowed the latter to give S.P. his medicine and called the emergency services, and could therefore not be accused of negligence. Relying on the findings of the police report of 11   October 2000, the panel found that the police had used force in line with the applicable regulations. In this connection, it noted that the police could reasonably have suspected that S.P. would be armed and had been required to respond to his active resistance. As regards the house search, it found that it had been lawful as it had been based on a search warrant issued the same day by the investigating judge on duty. In the second part of the decision, the panel upheld the decision of the investigating judge as far as the criminal offences of unlawful personal search of S.P, deprivation of liberty of S.P. and M.P., abuse of office and violation of dignity by abuse of power against M.P. were concerned. The decision noted that appeal lay only against its second part. The applicant and M.P. lodged an appeal against the second part of the decision, which was rejected by the Ljubljana Higher Court on 29 May 2003. In the meantime, on 17 February 2003 the applicant and M.P. lodged an “application for protection of legality” against the panel’s decision of 27   September 2002. On 20 February 2003 the Supreme Court rejected the application as inadmissible, finding that the aggrieved party acting in the capacity of subsidiary prosecutor had no standing to challenge the panel’s decision before the Supreme Court. 4.     First attempt to reopen the proceedings and Constitutional Court’s related decision On 4 January 2003 the applicant and M.P. lodged a request to reopen the proceedings in respect of the panel’s decision of 27 September 2002. They subsequently specified that the request concerned only the criminal offence of causing death by negligence. Their request was based on several new expert opinions, in particular one from a doctor A.Č., and a statement from the emergency doctor who was called to the scene. The applicant and M.P. argued that the police had entered the apartment at 12.00 and that S.P. had died thirty minutes before the time confirmed by the police. In their view, the wrong timing given by the police was intended to hide the fact that S.P. was handcuffed, beaten and denied help before he died. The applicant and M.P. referred to the statement given by the emergency doctor, who, on arriving at the scene at 1 p.m. noted that S.P. had died at least half an hour earlier. The request to re-open the case was rejected by the Ljubljana District Court’s panel on 28 October 2003 and a subsequent appeal was rejected on 1   September 2004 by the Koper Higher Court, which had acquired jurisdiction in the case following a change of venue. The courts rejected the arguments of the applicant and M.P., finding that the information given by the police and the records of the search indicated that the officers had approached the apartment at 12.32 and that in their calls to the station radio control room and, at 12.51, to the emergency services the officers had not reported that S.P. had died. The courts found that the time given by the emergency doctor had been approximate. It was therefore to be assumed that S.P. had died around 1 p.m.. As regards the medical report of doctor A.Č., the court found that it only noted the injuries sustained by S.P. Those injuries might have been relevant for the criminal offence of violation of dignity by abuse of power, but not for the offence of negligent manslaughter. As regards the argument that the courts failed to hear M.P., which the applicant and M.P. also pursued in their submissions, the Koper Higher Court found that this could not be considered new evidence. In the course of the proceedings the applicant and M.P. lodged two constitutional appeals – one against the decision of the Ljubljana Higher Court of 29 May 2003 in so far as it concerned their allegation of a violation of the privacy of their home, and one in which the applicant and M.P. complained about the Ljubljana District Court panel’s decision of 28 October 2003 and the Koper Higher Court’s rejection of their appeal. They complained that although their request for an investigation concerned the right to life and the prohibition of torture, there had been no impartial judicial investigation. All the decisions adopted in the impugned proceedings were based on the statements of the accused officers and on the police report, which was biased to support the officers’ account. On 6 July 2006 the Constitutional Court rendered a decision which set a precedent in the matter. It drew a distinction between, on the one hand, cases where the subsidiary prosecutors challenged before it a final conviction or other court decision by which the proceedings were finally discontinued, and, on the other hand, cases where a request for an investigation or the reopening of an investigation in respect of officers involved in an operation leading to the death of an individual was rejected. As regards the former, it was established case-law of the Constitutional Court that subsidiary prosecutors in such a position could not challenge final judgments or decisions before the Constitutional Court. As regards the latter, the Constitutional Court noted that it had never previously decided such a matter, and accordingly proceeded to examine the merits of the complaint. Referring to the Court’s case-law, including the principles set out in Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V, and Ribitsch v. Austria , 4 December 1995, §§ 34 and 38, Series A no. 336, and the findings in Rehbock v. Slovenia , no. 29462/95, ECHR 2000 ‑ XII, the Constitutional Court established that: “Article 15 § 4 of the Constitution should be interpreted so as to include also a right to independent investigation of the circumstances of an incident where a person was allegedly subjected to torture or inhuman or degrading treatment by the police or where he or she lost his or her life during a police operation. The aforementioned right includes also the effective access of the aggrieved parties to such investigation. Despite the fact that Article 15 § 4 of the Constitution secures the right to judicial protection of human rights, it suffices in the situations concerned, according to the (aforementioned) jurisprudence of the European Court of Human Rights in respect of Article 13 of the Convention, that the investigation is conducted outside of judicial proceedings under the condition that it is independent and provides for effective access of for the aggrieved parties. Article 15 § 4 of the Constitution and Article 13 of the Convention do not require that the independent investigation be conducted in the framework of criminal proceedings. The aim of criminal proceedings is to establish whether the accused has committed an alleged criminal offence and whether he is guilty... Therefore, the fact that there was no criminal investigation in the present case does not lead to the conclusion that there was a violation of Article 15 § 4 of the Constitution taken together with Article 13 of the Convention. ...” The Constitutional Court found that in the present case the internal commission was composed of police officers and that the applicant and M.P. had not been involved in its activities. It therefore concluded that there had been a violation of the right to the effective protection of human rights enshrined in Article 15 § 4 of the Slovenian Constitution, taken together with Article 13 of the Convention, on account of a failure by the authorities to conduct an independent investigation into the incident. The Constitutional Court decided not to quash the impugned judicial decisions, however, as the fact that there had been no criminal investigation did not give rise to a violation, and stated that its finding was of a declaratory nature. 5.     Second attempt to reopen the proceedings and Constitutional Court’s related decision On 10 December 2004, the applicant and M.P. lodged another request for reopening, this time in respect of the criminal offences of negligent manslaughter and violation of dignity by abuse of power. Inter alia , they produced new doctors’ opinions, an additional statement by the emergency doctor, as well as photographic material from the scene of S.P.’s death which allegedly showed S.P.’s injuries. On 13 December 2006 the Koper District Court rejected the request, finding that most of the evidence on which it relied had already been assessed in the previous proceedings and that the applicant and M.P. essentially wished to obtain a fresh assessment of the evidence already in the file. The applicant and M.P. appealed. In their appeal they also referred to the Constitutional Court’s decision of 6 July 2006 and argued that the courts were bound by the obligation to conduct an independent investigation, which could be derived also from the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the UN Convention against Torture”). The Koper Higher Court rejected the appeal on 24 October 2007. It noted that the reopening of the proceedings would be possible only if new evidence was sufficient, in itself, to justify reasonable suspicion that the accused had committed the alleged criminal acts, which was not the case here. It further noted that the court was called to examine the matter only in the light of the parties’ submissions. It lastly noted that the Constitutional Court’s decision of 6 July 2006 had not given the applicant and M.P. a right to obtain the conviction of the accused officers. Subsequently, the applicant lodged a constitutional appeal in which he complained that the above courts had acted arbitrarily and discriminatorily in refusing his new request for reopening. The Constitutional Court had clearly raised a doubt on 6 July 2006 as to the impartiality of the decisions refusing the investigation, which had nevertheless remained unopened. The applicant argued that he had never maintained that he had a right to have the accused officers convicted, but simply requested an impartial investigation, which in the Slovenian legal system could only have been carried out in the context of criminal proceedings. He further argued that he was at a disadvantage as he could not obtain evidence to which the State had access. On 9 March 2010 the Constitutional Court rejected the applicant’s constitutional appeal, finding that it was not in a position to come to any different conclusion than in its first decision, namely that there had been a violation of constitutional rights. It noted that since it had decided a similar matter before, the present appeal could not be said to concern an important legal question which went beyond the particular case. The Constitutional Court also noted that since its previous decision and the Court’s judgment in Matko v. Slovenia , no. 43393/98, 2 November 2006, legislation had been adopted which allowed for a special group of public prosecutors to be set up with a view to investigating criminal offences committed by police. These changes in the legislation were aimed at ensuring that the special public prosecutors would be able to conduct independent investigations. Lastly, the Constitutional Court noted that the changes had no effect on the applicant’s situation. On 24 September 2010 the applicant wrote to the Ministry of the Interior requesting them to conduct an impartial investigation – which would also involve him and external experts – with a view to objectively establishing the circumstances of S.P.’s death. He has received no reply. B.     Relevant domestic law Article 15 § 4 of the Slovenian Constitution reads as follows: “Judicial protection of human rights and fundamental freedoms, and the right to obtain redress for the violation of such rights and freedoms, shall be guaranteed.” Article 129 of the Criminal Code (Official Gazette no. 63/94) provides for anyone who causes the death of another by negligence to be sentenced to imprisonment for not less than six months and not more than five years. In addition, Article 270, entitled “Violation of human dignity by abuse of office or official duties”, provides: “An official who, in the exercise of his office and by abuse of his office or official duties, treats another person badly, insults him, inflicts minor bodily harm upon him or otherwise treats him in such a way as to affect his human dignity shall be sentenced to imprisonment for not more than three years.” For the relevant provisions of the Criminal Procedure Act see Butolen v.   Slovenia (dec.), no. 41356/08, §§ 35-42, 9 June 2009. COMPLAINTS The applicant complains that there has been no independent investigation into the circumstances in which his son died during a police operation. In this connection, he submits that the only investigation was conducted by an internal police commission and did not involve external institutions and family members. Its findings were nevertheless relied on by the public prosecutor and were taken as practically the sole basis for the rejection of his criminal complaint. The courts also discriminatorily and arbitrarily refused to open a judicial investigation and rejected the evidence obtained by the applicant, who was placed at a significant disadvantage vis–à-vis the police. Referring to the UN Convention against Torture, the applicant further complains that the alleged violation of S.P.’s dignity by abuse of power amounted in substance to torture or other forms of inhuman or degrading treatment, and that the State was under an obligation to hold an impartial investigation into this allegation. The applicant further complains that the Constitutional Court failed to remedy the situation as it did not order that an independent investigation be conducted or indicate what body should carry out such an investigation. Lastly, the applicant complains that owing to the lack of an effective impartial investigation he was in no position to claim successfully compensation for damages. QUESTIONS TO THE PARTIES 1.     May the applicant still claim to be a victim of a violation of the Convention, within the meaning of Article 34?   2.     Having regard to the procedural protection of the right to life (see Öneryıldız v. Turkey [GC], no. 48939/99, §§ 93-4, ECHR 2004 ‑ XII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?   3.     Having regard to the procedural aspect of protection from torture and inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, §   131, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?   4. Having regard to the declaratory nature of the Constitutional Court’s decision, did the applicant have at his disposal an effective domestic remedy for his complaints under Articles 2 and 3 of the Convention, as required by Article 13 of the Convention? Has the applicant had an effective civil remedy for obtaining compensation in respect of his complaints under Article 2 as required by Article 13 of the Convention?   The Government are requested to send copies of the case-file concerning the applicant’s request for judicial investigation, copies of all medical reports obtained in the proceedings, the documents obtained during the investigation by the internal commission of the Ljubljana Police and the latter’s report.