CEDH · CASELAW;COMMUNICATEDCASES;ENG — 28 janvier 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s10AB3CA3 { font-family:Arial; color:#222222 } .sC83985A0 { font-family:Arial; font-style:italic; color:#222222 } .s5DE1DBF4 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-15pt; page-break-inside:avoid; page-break-after:avoid } .s1B25ECFB { margin-top:12pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-14.2pt; page-break-inside:avoid; page-break-after:avoid } .s7ED160F0 { text-decoration:none } .s539148BA { font-family:Arial; font-style:italic; color:#000000 } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s5664A23F { margin-top:12pt; margin-left:63.8pt; margin-bottom:6pt; text-indent:-21.25pt; page-break-inside:avoid; page-break-after:avoid } .sEB98FB19 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt } .s477661CC { margin-top:12pt; margin-left:56.7pt; margin-bottom:6pt; text-indent:-21.25pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 28 January 2019   THIRD SECTION Application no. 73313/17 Aleksandar ZLIČIĆ against Serbia lodged on 7 October 2017 STATEMENT OF FACTS 1.     The applicant, Mr Aleksandar Zličić, is a Serbian national, who was born in 1981 and lives in Novi Sad. He is represented before the Court by Ms   S.   Đorđević, a lawyer practising in the same town. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     On 10 January 2014 at around 10   p.m. the applicant and his friend G.K. were sitting on a bench close to the building where the latter had been living at the time, when two plain-clothes police officers approached them and asked them to show their identity cards. One of the officers then went behind the bench and, while holding a small plastic bag ( kesicu ) in his hand asked them: “Whose bag is this? Is it yours?” The applicant and his friend replied that they neither knew whose bag that was, nor what was in it. The officers then searched them and took them to the Novi   Sad Police Station. 4.     During his questioning at the police station, the applicant was ill ‑ treated in order to elicit a confession. Specifically, four officers repeatedly punched him in the head and the abdomen and one of those officers, S.D., threatened to detain him for a period of 48 hours and to inform his employer thereof. The same officer further said that he would harass the applicant’s parents and his cohabitant and break into his flat and search it. At one point, the applicant was forced to remove all of his clothes, but was then allowed to get dressed again. Fearing additional police abuse, the applicant ultimately signed a document confirming seizure of the bag in question ( potpisao potvrdu o privremeno oduzetim predmetima ). The interrogation allegedly lasted for more than an hour, following which the applicant was released. 5.     On 12 January 2014, at around 1.30 p.m., the applicant went to the Novi Sad Emergency Centre ( Urgentni centar ), together with his lawyer and G.K. The doctor who examined the applicant diagnosed a contusion of the head and face, as well as a contusion of the left eyeball. On the same day an ophthalmologist in the Vojvodina Clinical Centre ( Klinicki centar ), found that the applicant had suffered a corneal erosion. Lastly, on 14   January 2014 the applicant was examined by an ophthalmologist and a neuropsychiatrist in the Novi Sad Health Centre ( Dom zdravlja ). The ophthalmologist diagnosed mild hyperemia and an issue with the epithelium of the cornea, while the neuropsychiatrist concluded that the applicant had suffered from a reaction to a severely stressful situation and an “adaptation disorder”. 6.     On 21 January 2014 the applicant lodged, through his lawyer, a criminal complaint against S.D. and three other unidentified officers concerning the events of 10 January 2014. On 19 and 24 March 2014 the Police Internal Control Sector ( Sektor unutrašnje kontrole policije ) interviewed the applicant and his cohabitant, as well as G.K. and his father. The applicant recounted the abuse suffered while in police custody and stated that officer S.D. had been one of the officers who had ill ‑ treated him. He also recognized two other officers from the photos shown to him, but could not claim that they had punched him because he had not been able to see anything after he had received the first blow to the head. He added that on 10   January 2014 he had sustained the injuries listed in the medical reports. Fearing additional police abuse, however, he had not gone to the hospital immediately upon release but had done so on 12 January 2014 together with his lawyer. G.K., the applicant’s friend who had also been arrested on the same occasion, stated that he had seen when officer S.D. had punched the applicant in the head, i.e. his left temple ( slepoočnica ), and added that he too had been physically and psychologically abused by the police in order to extort his statement, including by officer S.D. The applicant’s cohabitant stated that the applicant had come home at around midnight on 10 January 2014 and that she had observed swelling on his left eyelid. The applicant had said that he had been beaten by the police during his interrogation at the police station and that he knew the identity of one of the officers involved. The applicant’s cohabitant provided the Police Internal Control Sector with photographs of the applicant’s face which she had taken one day after his release. J.K. recounted that he had been in front of the Novi Sad Police Station when his son, G.K., had been released. He had noticed redness in the area of his son’s cheekbone and skin abrasions ( oguljotine ) on one of his legs. His son had also told him that he had been punched and ill-treated by the police, and that one of the officers involved had been S.D. 7.     On 10 July 2014 the First Instance Public Prosecutor’s Office in Novi Sad rejected the applicant’s criminal complaint, finding that there were no grounds to suspect that a criminal offence subject to public prosecution had been committed. On 7 November 2014 the High Public Prosecutor’s Office in Novi Sad upheld this decision. In so doing, it explained, inter alia , that officer S.D. as well as the other officers who had had contact with the applicant on the critical day, had denied any wrongdoing and had further not personally seen the applicant being abused or even heard anything to this effect. Moreover, neither the applicant’s cohabitant nor his friend’s father had had any direct knowledge of the alleged abuse, and the Police Internal Control Sector, for their part, could not be deemed as anything but impartial. The First Instance Public Prosecutor’s Office was therefore justified in concluding that there were indeed no grounds to suspect that the officers in question, acting in an official capacity, had used force, threats or other inadmissible means with intent to extort a confession or any other statement from the applicant. 8.     On 8 January 2015 the applicant lodged a constitutional appeal. He described the relevant facts concerning the events of 10 January 2014, named one of the officers who had ill-treated him, submitted documents including medical reports corroborating his allegations and maintained, inter alia , that such police conduct during his interrogation and the lack of a proper investigation in this regard thereafter had clearly amounted to a breach of his right to physical and mental integrity as guaranteed under Article 25 of the Constitution (see paragraph 9 below). On 9 June 2017, however, the Constitutional Court dismissed the applicant’s appeal, finding that, given the legal nature and the content of the rejections issued by the public prosecution service (see paragraph 7 above), they could not be considered as individual acts against which a constitutional appeal could be lodged based on Article 170 of the Constitution (see paragraph 9 below). B.     Relevant domestic law 1.     The Constitution of the Republic of Serbia (Ustav Republike Srbije, published in the Official Gazette of the Republic of Serbia –OG RS – no. 98/06 ) 9.     The relevant provisions read as follows: Article 25 “1.     Everyone’s physical and mental integrity shall be inviolable. 2.     Nobody may be subjected to torture, inhuman or degrading treatment or punishment, nor subjected to medical and other experiments without their free consent.” Article 170 “A constitutional appeal may be lodged against individual decisions or actions of State bodies or organizations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.” 2.     The Criminal Code (Krivični zakonik, published OG RS no.   85/05, amendments published in OG RS nos. 88/05, 107/05, 72/09, 111/09,121/2012 and 104/2013) 10.     The relevant provisions read as follows: Article 136 (Extortion of Confession) “1.     Whoever acting in an official capacity uses force or threat[s] or other inadmissible means ... with intent to extort a confession or another statement from an accused, a witness, an expert witness or another person, shall be punished with imprisonment from three months to five years. 2.     If the extortion of a confession or of a statement is aggravated by extreme violence or if the extortion of a statement results in particularly serious consequences for the accused in criminal proceedings, the offender shall be punished with imprisonment from two to ten years.” Article 137 (Ill-treatment and Torture) “1.     Whoever ill-treats another or treats such a person in a 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, or for any reason based on discrimination, 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 shall be punished for the offence in paragraph 1 with imprisonment from three months to three years, and for the offence in paragraph 2 with imprisonment from one to eight years.” 3.     The Code of Criminal Procedure (Zakonik o krivičnom postupku, published in OG RS no. 72/2011, amendments published in OG RS nos. 101/2011, 121/2012, 32/2013, 45/2013 and 55/2014) 11.     Article 9 prohibits, inter alia , any use of torture, inhumane and degrading treatment, or of force, threats and/or coercion, with the aim of extorting a confession or any other statement from the accused or another person taking part in the proceedings. 12.     Articles 5, 6 and 51 taken together provide, inter alia , that for criminal offences which are subject to prosecution ex officio , such as the ones at issue in the present case, the authorized prosecutor is the public prosecutor personally. The said official’s authority to decide whether to press charges, however, is bound by the principle of legality which requires that he or she must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed. Should the public prosecutor dismiss a criminal complaint lodged in respect of such an offence, he or she must inform the victim of this decision, who may then lodge an objection with the immediately higher public prosecutor, within eight days as of the date of notification. The immediately higher prosecutor may reject or accept the objection but no appeal or objection is allowed against that decision. Should the immediately higher public prosecutor decide to accept the objection, he or she shall issue a mandatory instruction to the competent public prosecutor to start a prosecution or continue therewith. COMPLAINTS Under Articles 3, 6 and 14 of the Convention and Article 1 of Protocol No. 12 thereto the applicant complains about having been ill-treated while in police custody, as well as the subsequent lack of an effective official investigation in that regard. Under Article 13 of the Convention, read in conjunction with the above, the applicant further complains that the Constitutional Court’s refusal to even consider his appeal amounted to a breach of his right to an effective remedy before the national authorities. QUESTIONS TO THE PARTIES 1.     Has the applicant been subjected to treatment contrary to Article 3 of the Convention while in police custody on 10 January 2014 (see, Hajnal v.   Serbia , no. 36937/06, § 81, 19 June   2012)? 2.     Having regard to the procedural protection from ill-treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? 3.     Has there been a violation of Article 13 taken together with Article 3 of the Convention, particularly in view of the approach adopted and the reasoning offered by the Constitutional Court in its decision of 9 June 2017? The Government are invited to provide any and all relevant case-law or other relevant material in this respect, as well as the corresponding copies of constitutional appeals in each case. 4.     The Government are further invited to provide the Court with a copy of the entire file concerning the applicant’s alleged ill-treatment on 10 January 2014, including all reports, decision and/or other documents in possession of the Police Internal Control Sector and the Ministry of Internal Affairs, as well as the First Instance Public Prosecutor’s Office and the High Public Prosecutor’s Office, both based in Novi Sad. 5.     The Government are, lastly, invited to provide the Court with information as to whether any charges were ever pressed or any criminal proceedings were ever brought against the applicant in connection with his arrest on 10 January 2014.