CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 octobre 2008

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s719C48CE { width:279.15pt; display:inline-block } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sF6C59CD6 { margin-top:18pt; margin-left:14.2pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s673A384F { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s14110B3D { width:11.19pt; text-indent:0pt; display:inline-block } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt }     13 October 2008     FOURTH SECTION Application no. 26872/05 by Gjyste CEKA against Albania lodged on 13 July 2005   STATEMENT OF FACTS THE FACTS The applicant, Ms Gjyste Ceka, is an Albanian national who was born in 1963 and lives in Mirdite. The applicant is the mother of twins, Enriket and Eriguert Ceka, born in 1987. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. a.     Circumstances surrounding the death of the applicant’s son On 6 May 2004 the applicant’s twin sons were arrested by the Rubik police forces and placed in pre-trial detention on suspicion of theft. On 9 May 2004 the Mirdita District Court ( Gjykata e Rrethit Gjyqësor Mirditë ) validated their detention. On 5 July 2004 Eriguert and his cellmate were taken to the interrogation room of the pre-trial detention facility, following a fight between them. Eriguert agreed to make peace with the other inmate provided that he did not have to share the cell with him. This request was refused by police officers who had an argument with the applicant’s son, as a result of which Eriguert was beaten up and fell unconscious to the floor. When Eriguert recovered consciousness, he complained about a painful headache, nausea and a generally poor state of health. He was taken to the Rreshen local health centre in the afternoon of the same day. His personal medical file stated that, “the patient has a police escort and is complaining of a slight headache. His overall condition is good... he is conscious and can respond to questions.” The applicant’s son was provided with light sedatives ( sal glukozë 5%, sal fizioligjki 09% and analgin i amp. ) and he left the health centre at 7 p.m. on the same day. He was taken back to the pre-trial detention facility. Upon return to the pre-trial detention facility, he continued to complain about a painful headache, nausea and overall weakness. At 3 a.m. on 6 July 2004 he fell unconscious and was urgently driven to the local health centre. His personal medical condition was examined and his personal medical file contained the following passage, “the patient is pale. It is not possible to communicate with him. He is nauseous and has vomited, he has a low pulse rate ... From the preliminary information, it would appear that the patient has been beaten up while in the pre-trial detention facility.” The doctors decided to send him for specialised treatment at the Tirana Military Hospital ( Spitali Ushtarak Tiranë ). The applicant submitted that her son had lapsed into a coma by the time he was transported by an ambulance to Tirana. The applicant’s son died at 4 p.m. on 8 July 2004. An excerpt of the death certificate of the applicant’s son indicated that he had suffered from “beatings with a hard, bruising, blunt object” which led to his death as a result of “cerebral haemorrhage and epidural haematoma”. b.     The criminal investigation and trial proceedings On an unspecified date in 2004 criminal proceedings were instituted by the prosecutor in relation to the death of the applicant’s son. It appears that the applicant was not informed about the decision to initiate the criminal investigation. On 8 July 2004 the prosecutor ordered a forensic medical report. The forensic medical report was drawn up and answered the following questions: “1. What injuries are to be found on the corpse of Eriguert Ceka? 2. What was the cause of his death?” The forensic expert carried out a post-mortem examination. The external examination of the body revealed, inter alia: “Over the right temple, there is a stitched wound ( plagë operatore e suturuar ) in the shape of an “L”. It has its base on the upper side of the head, measuring 3 cm and having 3 stitches. The long line of the “L” is in a horizontal direction, measuring 8 cm and having 7 stitches ( sutura, qepje ). At a distance of 2 cm from the angle of the shape of “L”, there are two parallel dry wounds ( plagë drenimi ), in a vertical direction, 1 cm apart from each-other, measuring 1 cm each and having 1 stitch.” The report concluded that the death had been caused by a fracture of the base of the skull, epidural haematoma and cerebral haemorrhage, inflicted by a hard, flat, blunt object with a relatively high intensity ( me mjet të fortë mbretes, jo të mprehtë, me sipërfaqe goditëse të sheshtë dhe me intensitet relativisht të lartë ). The report provided that the above injuries which led to the death of the applicant’s son could have been caused by him falling on the floor, on the right side of his skull. Two police officers, Gj. R. and V. Sh., who had been serving as guards at the Mirdita pre-trial detention centre at the material time, including on 5 July 2004, were tried. It is not clear what charges were brought against them. On 18 January 2005 the Tirana Military Court of Appeal ( Gjykata Ushtarake Apelit Tiranë ) sentenced Gj. R. to 3 years’ imprisonment for breaching the rules of on-duty service ( shkelja e rregullave të shërbimit të rojes ) under the second paragraph of Article 41 of the Military Criminal Code. On 8 November 2004 the Tirana District Court ( Gjykata e Shkallës së Parë Tiranë ) sentenced V. Sh. to ten months’ imprisonment for the criminal contravention of breaches of the escort rules ( shkelja e rregullave të shoqërimit ) under the first paragraph of Article 44 of the Military Criminal Code. It is unclear why the proceedings were separated As the domestic courts had adopted the summary procedure in accordance with Articles 403-406 of the Code of Criminal Procedure, the respective sentences were commuted to 2 years’ imprisonment for Gj. R. and 6 months and twenty days’ imprisonment for V. Sh. On 5 June 2005 the applicant wrote to the General Prosecutor’s Office. She stated that she had no information about any criminal investigation and requested the authorities to inform her about the state of the proceedings. On 1 July 2005, the General Prosecutor’s Office replied to the applicant’s letter and stated that the trial proceedings concerning the investigation into her son’s death were pending before the Tirana Military Court of Appeal. It appears that the document provided inaccurate information as the trial proceedings had finished on 18 January 2005 by a decision of that court. It appears from the case file that this was the only information provided to the applicant concerning the criminal investigation into her son’s death. It is unclear whether the applicant was granted victim status in the criminal proceedings concerning her son’s death. B.     Relevant domestic law 1. The relevant provisions of the Constitution: Article 21 “The life of the person is protected by law.” Article 25 “No one shall be subject to torture, cruel, inhuman or degrading punishment or treatment.” 2. The relevant provisions of the Criminal Code: Article 87 – Torture “Torture, like any other degrading or inhuman treatment, shall render the offender liable to a sentence of imprisonment of between five and ten years. Article 87 – Torture resulting in serious consequences “Torture, like any other degrading or inhuman treatment, when it has inflicted handicap, mutilation or any permanent harm to the well-being of a person, or death, shall render the offender liable to a sentence of imprisonment of between ten and twenty years.” 3. The relevant provisions of the Code of Criminal Procedure: The summary procedure is governed by sections 403-406 of the CCP. It is based on the assumption that the case can be decided on the basis of the case file as it stands, without submitting it to judicial examination. The Supreme Court’s unifying decision No. 2 of 29 January 2003 adds that the essence of the summary procedure is to admit the collected documents to the file, avoiding the consideration of evidence at a hearing and the arguments relating thereto. It simplifies and abridges the procedure, increases the effectiveness of the examination process, commutes the sentence of imprisonment or fine to one third and replaces life imprisonment by a sentence of twenty-five years’ imprisonment. 4. The relevant provisions of the Military Criminal Code: Article 14 – Application of provisions of Chapter II of the Criminal Code to the military officers “When a military officer commits a criminal offence which is not specified in this Code, he shall be liable on the basis of the provisions of the Criminal Code.” Article 41 – Breach of on-duty service rules “... Breach of on-duty service rules, when it has resulted in serious consequences, shall render the offender liable to a sentence of imprisonment of between 2 and 8 years. ...” Article 44 - Breach of the escort rules “Breach of the escort rules by the military officer responsible for this duty constitutes a criminal contravention and shall render the offender liable to demotion, a fine, dismissal from work or a sentence of imprisonment not exceeding two years. ....” COMPLAINTS The applicant complains under Article 2 of the Convention that: a) the authorities failed to take measures to protect her son’s life in police custody; b) the authorities did not conduct an effective and adequate investigation into the cause of her son’s death; c) the police did not promptly provide adequate medical treatment to her son; d) she was not notified about the criminal investigation and trial proceedings. Under Article 3 of the Convention, the applicant complains that her son was subjected to ill-treatment in police custody. In her submission, the applicant refers to Article 8 without raising any complaints under this heading. QUESTIONS TO THE PARTIES 1.   Has there been a violation of Article 2 of the Convention? In particular: a) Did the applicant’s son die as a consequence of injuries inflicted by the police? b) Did the acts of the police, and in particular the alleged lack of timely and adequate medical treatment, contribute to the applicant’s death? c) Was there an effective investigation into the death of the applicant’s son? d) Did the authorities notify the applicant about the conduct of criminal investigation and trial proceedings (see, amongst others, Taniş and Others v. Turkey , no.   65899/01, §   204, ECHR 2005 - ...?) e) Was the offenders’ sentence compatible with the requirements of Articles 2 of the Convention in light of the circumstances of the case? (see, for example, Ali and Ayşe Duran v. Turkey , no. 42942/02, §   ..., 8 April 2008, not yet final; Okkalı v. Turkey , no.   52067/99, §   71/78, ECHR 2006 - ... (extracts)) 2. Has there been a violation of Article 3 of the Convention? In particular: a) Was the applicant’s son subjected to torture or inhuman and degrading treatment for which the Contracting Party is liable (see, for example, Tomasi v. France , judgment of 27 August 1992, Series   A no.   241 ‑ A, §   104-116) ? b) D id the authorities conduct an effective investigation into the ill-treatment experienced by the applicant’s son? 3. The Government are requested to submit complete copies of the medical files of the applicant’s son and the death certificate ( vërtetim mjeksor i shkakut të vdekjes ) and complete copies of documents contained in the files of the authorities which investigated and subsequently tried the case.