JASAR proti Severní Makedonii

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 69908/01
by Pejrusan JAŠAR
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Third Section), sitting on 19 January and 11 April 2006 as a Chamber composed of:

Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr C. Bîrsan,
Mrs M. Tsatsa-Nikolovska,
Mrs R. Jaeger,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 1 February 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the parties’ oral submissions at the hearing on 19 January 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Pejrusan Jašar, is a national of the former Yugoslav Republic of Macedonia, who was born in 1965 and lives in Štip (the former Yugoslav Republic of Macedonia). He was represented before the Court by Ms D. Post, of the European Roma Rights Centre, and Mr J. Madjunarov, lawyers practising in Budapest and Štip respectively.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The incident

(a) The applicant’s version of events

On 16 April 1998, at around 9 p.m., the applicant and his friend F.D., both citizens of the former Yugoslav Republic of Macedonia of Roma ethnic origin, were having a drink in a downtown bar in Štip. On the other side of the bar, two men were gambling. The man who lost pulled out a gun, fired several shots into the air and one into the ground, and asked for his money back. All those in the bar, including the applicant and his friend, tried to leave, but were ultimately unable to do so because of the crowd that had already blocked the exit.

In the meantime, five police officers arrived at the scene of the incident and started to beat the applicant. One of the police officers caught the applicant by his hair and pushed him against the police car, while another officer grabbed his friend’s arm and twisted it behind his back. Shortly afterwards, the police took them to the local police station, where they were locked up in two separate cells.

The applicant maintains that around midnight one of the police officers concerned came to the cell where he was being held and told him to bend over. The applicant alleges that the police officer kicked him in his head, which caused bleeding from his mouth. As he fell down on the floor, the police officer grabbed him by his hair and allegedly started hitting him savagely with his fists and a truncheon. The applicant further maintains that another police officer, who was allegedly beating his friend in the other cell, came to his cell later and continued to batter him until 5 a.m. They were then taken to an office, where they were questioned about the incident. After drawing up a report, the police released the applicant and his friend at around 11 a.m. the next day.

Following his release, the applicant went to the Emergency Aid Unit at Štip Hospital and asked for medical assistance. A medical certificate issued on 17 April 1998 by the doctor who had examined him indicated that the applicant had sustained several bodily injuries which were described as slight. In addition, the certificate stated that the applicant had declared that he had been beaten at the police station with a truncheon and kicked all over his body. The medical certificate did not specify the possible origin of the injuries, their timing or the way in which they had been inflicted.

The applicant and his friend have never been charged with any offence in relation to the incident at issue.

(b) The Government’s version of events

On 16 April 1998, between 9 and 10 p.m., the applicant and F.D. arrived at the café bar Lotus. They joined a group watching people gambling with dice. At around 2 a.m. on 17 April one of the losing gamblers claimed that the dice had been fixed and demanded his money back. An argument started in which the applicant and F.D. participated. When a certain J.N. took out a pistol and fired, F.D. tackled him and the gun fell on the floor. At about 2.30 a.m. the police came to the scene after the shooting incident had been reported to them. Meanwhile, there was a certain disruption inside the bar, after which some people went outside. The police’s inspection of the scene lasted until 4.30 a.m.

The police sought to take M.S., an individual reported to them, into custody. The applicant and F.D., who had taken the side of M.S. in the dispute, obstructed the police, allowing M.S. to escape. F.D. also assaulted another person on the scene. The police then decided to take all those present, including the applicant, to the police station.

At 5 a.m. the applicant and F.D. were interviewed by the police. They were released at 7.30 a.m. No force was used against the applicant during the questioning, nor did he make any complaint at the police station concerning any abuse by the police or any injury he had sustained. No charges were subsequently brought against him.

2. The criminal investigation

On 25 May 1998 the applicant, through his legal representative, filed a criminal complaint (кривична пријава) with the Štip Basic Public Prosecutor’s Office (Основно Јавно Обвинителство Штип) against an unidentified police officer under Article 143 of the Criminal Code. In the complaint, the applicant set out a factual account of the incident and alleged that the officer concerned had ill-treated him while he was in police custody. He requested the public prosecutor’s office to initiate proceedings as provided for by law. The medical certificate of 17 April 1998 was produced in support of his complaint.

On 28 May 1999 the applicant’s legal representative wrote a letter to the Štip public prosecutor, stressing that his criminal complaint had been filed more than a year previously and that since then he had received no information and had no knowledge as to whether any steps had been taken by the public prosecutor’s office to identify the offenders and to initiate a formal investigation.

As there was again no reply, on 25 October 1999 the applicant’s lawyer sent another letter to the public prosecutor, requesting information about any action undertaken concerning the applicant’s case. He made no reference to the civil proceedings that had already finished and did not inform the public prosecutor of the identity of the police officers concerned, which had been determined in the course of the civil proceedings.

In a letter dated 11 November 1999 the Štip public prosecutor replied that his office had responded to the criminal complaint at issue by officially requesting additional inquiries from the Ministry of Internal Affairs. However, to date his office had received no information from the Ministry.

As the applicant has not received any fresh information since then as to any action taken by the relevant prosecuting authorities, the proceedings concerning his criminal complaint are still pending.

3. The civil proceedings

On 25 May 1998 the applicant submitted a compensation claim against the respondent State and the Ministry of the Interior for the non-pecuniary damage he had suffered as a result of the violence to which he had been subjected while in police custody. He made the same statements as in the criminal complaint, namely that after the police officers had arrived at the bar, one of them had grabbed him by his hair and pushed him against the police car; that at the police station he had been told to do push-ups and had been subsequently kicked in the head, which had caused his mouth to bleed; and that he had been punched and beaten with a truncheon all over his body.

The Government stated that in December 1998, following the bringing of the civil action, the Solicitor General‘s Office had requested information from the Ministry of the Interior concerning the incident. In January 1999 the Štip police submitted a report based on the official notes and records, stressing that the police had not used force at the station and had intervened and placed the applicant in the police van when he and his friend had resisted them at the scene and his friend had attacked another person. They added that no force had been used against the applicant, nor had he submitted any complaint concerning the injuries allegedly sustained during the police intervention at the bar. Among the documents accompanying this report, the Ministry of the Interior provided the official police record of the statements given by the applicant while being questioned. No complaints of alleged abuse or injuries had been noted in that record.

On 22 March 1999 the Štip Court of First Instance dismissed the applicant’s claims as ill-founded. The court heard evidence from F.D. and several police officers who had participated in the police raid on the night of the incident. It also heard evidence from a specialist doctor, who provided his expert opinion about the applicant’s injuries. He stated that the injuries had been probably inflicted by a blunt object such as a hand or a tool and that no special treatment had been necessary for the applicant’s recovery. The court also admitted as evidence the medical certificate of 17 April 1998 and the photographs showing the applicant’s condition after the incident.

The court found it undisputed that the applicant had been injured, but stated that there was no evidence that the injuries had been inflicted as a result of police brutality. It established that the applicant had sustained certain injuries, but concluded that it could not be inferred under what circumstances they had been inflicted, or by whom or when. It also established that the applicant had sustained some injuries to his head and eye before he had been put in the police car and taken to the police station. It found that the injuries had either been sustained during the fight in the bar (while the applicant was assisting the escape of a person who had fired a gun and caused a disturbance) or had resulted from the legitimate action of police officers in trying to restrain the applicant who had resisted arrest. It went on to conclude that, having regard to the statements of the police officers who had participated in the police raid and to the police report on the incident, even if the police officers had used some force in the bar, thus causing the injuries, the applicant could not have been awarded damages as he had resisted arrest and the circumstances of the case had necessitated the use of force. The court rebuffed as ill-founded the applicant’s argument that he had not been able to undergo a medical examination immediately after being released from custody owing to his lack of financial means, since this was contradicted by the medical certificate dated 17 April 1998.

On 29 April 1999 the applicant appealed to the Court of Appeal.

On 5 October 1999 the Štip Court of Appeal dismissed the applicant’s appeal as ill-founded. It stated that the lower court had indisputably found that the applicant had sustained certain injuries before he had been taken into police custody and that the police officers had not inflicted them. It concluded that the lower court had reasonably found that the State could not be held liable and had dismissed the applicant’s claim for damages.

On 4 February 2000 the applicant requested the public prosecutor to lodge with the Supreme Court an application for supervisory review (барање за заштита на законитоста). Referring to the outcome of the civil proceedings, he did not provide the public prosecutor with the identity of the police officers who had allegedly beaten him and who had given evidence in the course of those proceedings.

On 1 March 2000 the public prosecutor rejected the applicant’s request.

B. Relevant domestic law

Article 143 of the Criminal Code (Кривичен законик) provides that a person who, in the performance of his duties, mistreats, intimidates, insults or generally treats another in such a manner that his human dignity or personality is humiliated is to be punished by a term of imprisonment of six months to five years.

The relevant provisions of the Criminal Proceedings Act (Закон за кривичната постапка) may be summarised as follows:

Section 16 provides that criminal proceedings must be instituted at the request of an authorised prosecutor. In cases involving offences subject to ex officio prosecution by the State or on an application by the injured party, the authorised prosecutor is the public prosecutor, whereas in cases involving offences subject to merely private charges, the authorised prosecutor is the private prosecutor. If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings, his role may be assumed by the injured party, acting as a subsidiary prosecutor under the conditions specified in the Act.

Section 17 sets forth the duty of the public prosecutor to proceed with a criminal prosecution if there is sufficient evidence that a crime subject to ex officio prosecution has been committed (the principle of legality).

In accordance with section 42, in discharging this statutory right and duty, the public prosecutor is empowered to take measures to detect crimes, to identify their perpetrators and to coordinate preliminary criminal inquiries; to request the opening of an investigation; to file and to defend an indictment or application for prosecution before the competent court; to lodge appeals against decisions which have not become final; and to make use of extraordinary judicial remedies against final court decisions.

Section 56 provides, inter alia, that where the public prosecutor finds that there are no grounds for prosecuting an offence subject to ex officio prosecution, he shall notify the injured party of his decision within eight days. He shall also inform the injured party that that party may conduct the prosecution himself.

Section 144(1) provides that the public prosecutor is to dismiss the criminal complaint if it transpires that the act reported is not a criminal offence subject to ex officio prosecution; that the statute of limitations has expired; that the offence has been amnestied or pardoned or that other circumstances exist which preclude prosecution; or that there is no reasonable suspicion that the person in question committed the offence. The public prosecutor shall notify the injured party of the dismissal of the complaint and of the grounds for the dismissal within eight days (section 56) and, if the complaint was filed by the Ministry of the Interior, he shall notify the Ministry accordingly.

Section 144(2) provides that if the public prosecutor is unable to establish, from the criminal complaint, whether or not the allegations set out in the complaint are credible, or if the information given in it is insufficient for him to take a decision on whether to request the opening of an investigation, or if he has merely learned of rumours that a crime has been committed, particularly where the perpetrator is unknown, he shall, if he cannot do this alone or through other authorities, request the Ministry of the Interior to gather the necessary information and to take other measures to investigate the offence and identify the offender. The public prosecutor may at any time require the Ministry of the Interior to inform him about the measures taken.

Section 148 provides, inter alia, that when the perpetrator of a crime is unknown, the public prosecutor may request that the Ministry of the Interior take certain investigative measures if, in view of the circumstances of the case, it would be advisable to take such measures even before the investigation has been formally opened.

Section 150 provides that an investigation is to be opened in respect of a particular person where a reasonable suspicion exists that he has committed an offence.

The relevant provisions of the Administrative Disputes Act (Закон за управните спорови) may be summarised as follows:

Section 67 provides that the protection of human rights and freedoms guaranteed by the Constitution, in the event that they have been violated by the action of a civil servant within an administrative body, must be afforded throughout the procedure as set forth in sections 68 to 76 of the Act, unless other judicial protection is provided.

Section 68 provides that an application for protection from an illegal action should comprise the following elements: the action; the place and time at which it was taken; the organisation or the association, or the official, who took it; the evidence; and a request for the elimination of the obstacle or the restriction on the attainment of the rights or obligations concerned.

In accordance with section 69, the application may be submitted as long as the action is still taking place.

Section 73 provides that when the court considers the application well-founded, it shall prohibit the action from continuing. Otherwise, it shall dismiss the application. The court shall determine in a decision what is necessary to restore the legal situation, fixing a period of time for the execution of the decision, and shall determine the legal sanctions in the event of non-enforcement.

COMPLAINTS

1. The applicant complained under Article 3 of the Convention that he had been subjected to acts of police brutality, at the scene of the events in issue and while in police custody, which had caused him great physical and mental suffering amounting to torture, inhuman and/or degrading treatment. Furthermore, he alleged that he had been the victim of a procedural violation of the above Article since the prosecuting authorities had failed to carry out an effective, or indeed, any official investigation capable of leading to the identification and punishment of the police officers responsible for the treatment.

2. The applicant complained that he had had no effective remedy in respect of the national authorities’ failure effectively to investigate his allegations of ill-treatment, contrary to Article 13 of the Convention, read in conjunction with Article 3.

THE LAW

The applicant complained that he had been assaulted and ill-treated by police officers, that there had been no effective investigation into his complaints and that no effective remedy had been provided in respect of the lack of an investigation. He relied on Articles 3 and 13 of the Convention, which provide:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The Government’s objection concerning the non-exhaustion of domestic remedies

1. The parties’ submissions

The Government submitted that the applicant had not exhausted domestic remedies in respect of his complaints of ill-treatment. They pointed out that the use of force had been regulated and supervised by the Ministry of the Interior. Rules provided for investigations and disciplinary sanctions against officers if allegations were upheld, as well as making provision for compensation to the injured party. The applicant had not, however, made any written or oral complaint while at the police station, to the officer in charge of the station or to the then Sector for Internal Control within the Ministry of the Interior, so that disciplinary proceedings could have been instituted against the police officer responsible. The police chief who was authorised in the first instance to assess the alleged breach of the law or abuse by the police officers had accordingly been given no opportunity to do so in a timely manner, the complaint having only been brought to his attention in December 1998, some eight months later.

The Government also argued that as the national legal system had safeguarded the rights set forth in Article 3 of the Convention, the applicant should have requested protection of his legal rights before the Supreme Court by instituting contentious administrative proceedings, challenging an action of a civil servant by which the right in question had allegedly been violated.

They also asserted that the applicant had failed to bring the alleged police brutality to the attention of the Ombudsman, who was empowered to propose the initiation of contentious administrative proceedings and disciplinary proceedings and to bring criminal complaints before the public prosecutor. The Government also maintained that the applicant had not reported the alleged inactivity of the public prosecutor who had investigated his complaints to the prosecutor’s superior within the public prosecutor’s office, and had thus deprived the office of the possibility to review its own work and to take the necessary measures.

The applicant noted that he had filed both a criminal complaint and a civil action for damages and that as a result, the relevant authorities had been made aware of the incident. The police and the Ministry of the Interior had, however, chosen to do nothing. According to Strasbourg case-law, it was clear that where several available remedies were available, the victim was not required to pursue more than one. In any event, he pointed out that internal disciplinary sanctions, involving mere fines, suspensions or dismissal, did not amount to an effective remedy for the purposes of Articles 3 or 13 and could not replace the total absence of an adequate criminal investigation.

The applicant further submitted that the possibility of applying to the Supreme Court could not be considered an effective remedy, as section 67 of the Administrative Disputes Act (see “Relevant domestic law” above) referred to an action by a civil servant and bore no relation to police brutality and/or prosecutorial inaction; furthermore, it did not apply where alternative judicial protection was provided. Moreover, he argued that the Government had failed to produce a single example where a victim of acts of police brutality had obtained redress through an action brought under section 67 of the Administrative Disputes Act. In accordance with the Court’s case-law, in the absence of any decided domestic cases, the applicant could not be blamed for not availing himself of a particular remedy.

The applicant made no comments on the Government’s objection concerning the effectiveness of the remedy before the Ombudsman and an appeal to the prosecutor’s superiors within the public prosecutor’s office.

2. The Court’s assessment

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52, and Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67).

The Court emphasises that the application of the exhaustion rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights and that it must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others, cited above, p. 1211, § 69, and Aksoy, cited above, p. 2276, §§ 53-54).

The Court would note that the possibility of initiating a disciplinary or internal inquiry into alleged ill-treatment cannot generally be regarded as an effective remedy in this context. Turning to the present case, in so far as this involves a complaint to the police, special internal departments such as the Sector for Internal Control or institutions hierarchically linked to the alleged perpetrators lack the necessary independence.

Although the Government also referred to the possibility of an action in the Supreme Court to assert the applicant’s rights under Article 3 of the Convention, the Court does not consider that in the circumstances of this case it has been shown that this was the remedy which the applicant should have used in preference to others or that he was unreasonable in choosing the criminal and civil avenues of redress. The circumstances under which such an action could be used are an important element in assessing the effectiveness of the action in the instant case. According to national law, such an action may be used only where the law does not provide for another means of judicial protection and only while the impugned measure is taking place. In the case of alleged ill-treatment by a person in the performance of his or her duties, national law provides for the possibility of instituting criminal proceedings and of bringing a civil action for damages. Therefore, it is not apparent that the applicant could have availed himself of the possibility of bringing an administrative dispute before the Supreme Court, as he had at his disposal an alternative court remedy. Moreover, it appears that the proceedings before the Supreme Court are geared to providing protection against ongoing unlawful measures and preventing any repetition, and this would not have been apt to remedy the applicant’s situation.

The Court is also not persuaded by the Government’s arguments concerning proceedings before the Ombudsman and an application challenging the inactivity of the public prosecutor concerned, which may be lodged with the prosecutor’s hierarchical superior within the public prosecutor’s office.

Concerning the Government’s argument that the applicant failed to refer the matter to the Ombudsman, the Court adheres to the Council of Europe’s recognition of the prominent role played by the ombudsman in the protection of human rights and freedoms. Such role is generated by the need to provide an individual with a swift, free and easily accessible protection against breaches of fundamental rights and by an individual’s fundamental right to good and proper administration of his/ her affairs by the authorities at all levels.

However, the Court considers that in principle the ombudsman cannot be considered as an effective remedy, in particular due to the non-binding nature of the advice given. The Court notes that as a rule the ombudsman is not empowered to address binding decisions to the Government, but only to formulate recommendations (see Lehtinen v. Finland (dec.), no. 39076/97, ECHR 1999‑VII).

Turning to the present case, the Court observes that even assuming that the Ombudsman could have employed the most stringent measure, namely to apply to the public prosecutor to establish the criminal responsibility of those concerned, it does not appear that the applicant could reasonably have expected it to be more efficient than the complaints he had already lodged with the prosecuting authorities.

The Court would also note that the possibility of the applicant to initiate an internal inquiry within the public prosecutor’s office into the alleged inactivity of the public prosecutor concerned cannot be regarded as an effective remedy which the applicant was required to use. It finds that such a hierarchical appeal would effectively consist in submitting a complaint to a supervisory body with the suggestion that it make use of its powers if it sees fit to do so. The ultimate effect of that remedy could be disciplinary proceedings and/or the discharge of the prosecutor responsible, which in the Court’s view, cannot be considered effective and adequate to redress an alleged breach of Article 3 of the Convention.

Furthermore, as stated in the Court’s case-law, when there are several remedies available, the victim is not required to pursue more than one (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, and Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319‑A). The applicant in this case made a criminal complaint to the public prosecutor, initiating a procedure capable of leading to the identification and prosecution of the alleged perpetrators of the assaults. As the public prosecutor did not formally reject the applicant’s criminal complaint, the applicant could not take over the prosecution as a subsidiary prosecutor. Moreover, criminal proceedings could not be instituted where the perpetrator was unknown, as was the case regarding the applicant’s criminal complaint. In addition, the applicant also brought a civil action to obtain damages for the injury and suffering caused. He therefore brought the alleged police brutality to the attention of the authorities, placing them under a duty to carry out an appropriate investigation, and instituted a court procedure able to establish the facts, attribute responsibility and award monetary redress. In the normal course of events this would be regarded as fulfilling the requirements of Article 35 § 1 of the Convention in respect of his complaints under Article 3 and it would not be necessary to institute any other procedures (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, p. 3286, § 86).

The application cannot, therefore, be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 of the Convention. Accordingly, the Government’s objection must be rejected.

B. The Government objection concerning compliance with the “six-month rule”

1. The parties’ submissions

The Government argued that the civil proceedings had been able to provide the applicant with an effective investigation into his allegations of police brutality. They submitted that the civil courts had been able in the instant case to examine the facts, determine liability and afford appropriate redress. Having regard to the criteria defining a remedy as effective – direct accessibility, availability and a lack of discretionary power on the part of those responsible for taking action – they pointed out that the bare criminal complaints raised by the applicant before the public prosecutor could not be considered effective, as their final determination fell within the sole discretion of the public prosecutor. They considered, therefore, that although the proceedings before the public prosecutor were still pending, the six-month period had started to run after the applicant had been served with the Court of Appeal’s judgment of 5 October 1999.

The applicant contended that the civil proceedings could be considered an effective means to redress a breach of Article 3 of the Convention. Referring to the theoretical divergences between the civil and criminal law and the different nature and scope of their effects in relation to the perpetrators and to society in general, he submitted that a civil avenue of redress could not be deemed to have rectified a violation in a situation where no reasonable measures had been taken by the State to comply with its obligations under Article 3. He pointed out that he had used the most available means of redress open to victims of such violations by complaining to the public prosecutor, who was under a duty to investigate alleged crimes. As no official effective investigation into his allegations had been carried out, he had suffered what amounted to a continuing violation. He maintained that by failing to carry out the investigation and yet keeping it open, the State had precluded him from bringing the criminal case directly before the court. He asserted, therefore, that the “six-month rule” did not come into play in the instant case.

2. The Court’s assessment

As stated in the Court’s case-law, the six-month period normally runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of. Article 35 § 1 cannot be interpreted, however, in a manner which would require an applicant to refer his complaint to the Court before his position in connection with the matter has been finally settled at domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the Court considers that it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant became or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).

In the present case, the matters complained of relate to the applicant’s allegations of police brutality towards him while he was in police custody. He instituted civil proceedings for damages and lodged criminal complaints with the public prosecutor against an unidentified person or persons. Although the application was submitted more than six months after the Štip Court of Appeal had dismissed the applicant’s compensation claim with final effect, the Court is not persuaded by the Government’s argument that the six-month period should be calculated from the final decision in the civil proceedings. The Court would note that the proceedings before the public prosecutor are still pending as the latter has not dismissed the complaint and the investigation does not appear to have produced any tangible results. The Court observes that it cannot be considered that the application was lodged outside the six-month period, as the public prosecutor’s investigation, requested by the applicant, is officially still open. Although the civil courts did not find the State liable for the alleged ill-treatment of the applicant, the State has not given a final decision on the applicant’s allegations of police brutality.

The application cannot, therefore, be declared inadmissible as being introduced out of time within the meaning of Article 35 §§ 1 and 4 of the Convention. Accordingly, the Government’s objection must be rejected.

C. The substance of the case

1. The parties’ submissions

The Government submitted that the applicant’s allegations were not credible or substantiated. The statements taken by the police and the official records contradicted the applicant’s version of events, including the timing of the incident, his role in it and the minor injuries recorded after an alleged night of being beaten. The applicant and his friend had not been neutral bystanders but active participants in the quarrel and had obstructed the police in their attempt to take a gambler into custody. The police had been obliged to use permissible force to prevent further disruption and to restore order. The minor physical injuries recorded by a doctor were most probably the result of the scuffling between the participants in the bar brawl before the police’s arrival or the result of the necessary intervention of the police. There was no evidence of the alleged use of force at the police station.

The Government also pointed out that the applicant was not a respectable citizen being persecuted by the police on account of his Roma identity, but in fact an offender with an extensive criminal record. Between 1985 and 1998, 11 criminal charges had been brought against him, eight of which concerned property offences, two assaults and one a public-order offence. The applicant had received four prison sentences, of which one was suspended, and in 2002 further criminal charges for serious bodily harm had been brought. As regards the investigation into his allegations, they submitted that he himself had rendered it ineffective by not using the appropriate remedies and by not providing concrete evidence or facts relating to the alleged violation. If he had used the possibilities open to him in a timely fashion, there would have been some prospect of an effective investigation. They maintained that the applicant had neither raised the issue of being beaten during the questioning at the police station nor reported the alleged ill-treatment in the days that followed. The investigation was still pending, as the public prosecutor had not yet taken a decision to dismiss the complaints.

The applicant submitted that he had been subjected to acts of police brutality that had caused him severe physical and mental suffering amounting to torture or to inhuman and degrading treatment or punishment. As he had suffered physical abuse while in police custody, it was for the Government to show that their officials were not responsible for his injuries. They had not done so. Their version of events was contradicted by the statement given by F.D., the only independent witness, and the medical certificate issued by the hospital, which had found numerous serious injuries to the applicant’s head, hands and back. There was nothing to suggest that the applicant had taken part in any physical confrontation or had physically resisted the police. The internal police memos were biased and had no probative value. The courts, when considering the applicant’s claims, had simply ignored the evidence and relied on police evidence and reports which were clearly cursory, inconsistent and in contradiction with one another.

The applicant also referred to a report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT/Inf (2003) 3), which indicated that physical ill-treatment of persons in police custody was a serious problem and expressed doubt that judges or prosecutors conducted effective investigations where such ill-treatment came to their attention. This indicated a deep-rooted and widespread practice of abuse in police custody and impunity with regard to officers who perpetrated such acts. It was for the Government to show what they had done in response to the scale and seriousness of the problem at issue. In the present case, they had clearly done nothing. Finally, the applicant disputed that any remedies existed to provide redress for the authorities’ blatant inaction.

2. The Court’s assessment

The Court considers, in the light of the parties’ submissions, that the complaints under Articles 3 and 13 raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court therefore concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Vincent Berger Boštjan M. Zupančič
Registrar President