CASE OF MATKO v. SLOVENIA
(Application no. 43393/98)
2 November 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Matko v. Slovenia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr B.M. Zupančič,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Berro-Lefevre, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 12 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The incident
10. On 4 and 5 April 1995 a Special Unit (Specialna enota), which was under the direct control of the Ministry of Internal Affairs (“the MIA”) in cooperation with officers from the Slovenj Gradec Internal Affairs Administration (Uprava za notranje zadeve – hereinafter referred as the “Slovenj Gradec Police”) undertook a large-scale operation against the activities of a criminal organisation presumed to be operating on the territory of the town of Slovenj Gradec.
1. The applicant’s version of events
In the meantime, the police also searched the applicant’s car.
2. The Government’s version of events
3. Documents concerning the relevant incident
(a) Documents from the criminal proceedings against the applicant
“We had information about individuals who were suspected members of that [criminal] organisation, and one of them was Aleksander Matko, whom I did not know since I am from Maribor, but I knew him from photographs. (...) We were on one of the streets of Slovenj Gradec when we received information that the car of Aleksander Matko had been seen and that our colleagues had tried to stop him, but he would not stop despite warnings.”
“At the critical time, we were conducting, in the territory of Slovenj Gradec Police, an operation to investigate organised crime. (...) In front of the Hotel Pohorje, a group of people was noticed which included M.A. and Aleksander Matko. One of the police patrols noticed that M.A. left with the motorcycle and they also saw when Aleksander Matko drove away. In fact, everything happened very quickly (...). We placed vehicles at different locations (...). Our official vehicle, which I was driving, received a message that a white Golf was being driven by a person believed to be Aleksander Matko (...). We decided to stop him in order to search the car since there was a suspicion that he was armed.”
(b) Medical evidence
- bruises on the right eye and a small amount of suffusion in the surrounding area;
- a haematoma on the left side of the forehead
- a painful nose;
- a 6 cm by 4 cm haematoma on the left shoulder;
- two 4-5 cm linear skin abrasions on the left side of the thorax;
- a child’s-hand-sized moderate oedema behind the right ear;
- an extensive haematoma on the left thigh.
The doctors had also suspected a fracture of the right temporal bone. The report of an x-ray examination on 19 April 1995 indicated that there was a hairline fracture (fissura).
B. The applicant’s criminal complaint and the subsequent investigation
In his statement, the applicant alleged that about eight to ten officers had dragged him to the metallic fence of the construction site behind the Slovenj Gradec Health Centre where they had beaten him, shouted at him and threatened to kill him. He further stated that while being driven to the police station he had been beaten again, and given electric shocks with the special truncheons. He had not known where the police were driving since his head was pointing downwards the whole way. He also described the injuries he had sustained during the police procedure.
“Further to the analysis of procedures and activities which had taken place on 4 and 5 April 1995, the working group established that all the measures and procedures were lawful and in accordance with legal powers and professional rules.
The procedure against Aleksander Matko was carried out by criminal investigators D.P., J.K., M.F, T.G, I.G. and officers of the MIA’s Special Unit, who were headed by M.J (...).
On 5 April 1995, at 20.30, Aleksander Matko actively resisted the lawful procedure against him with the intention of preventing criminal police investigators from performing their official duties. Since their official duty could not be carried out otherwise, physical force and handcuffs were used against Matko in accordance with police powers.
From the facts described above and from the contents of the criminal complaint [lodged against the applicant] it is evident that there exists a reasonable suspicion [utemeljeni sum] that Matko Aleksander on 5 April at 20.30 committed the criminal offence of obstructing an official in the course of his duties within the meaning of section 302/II of the Criminal Code of the Republic of Slovenia.
The criminal complaint of the Slovenj Gradec Police states that Aleksander Matko sustained injuries as a result of the use of force. (...) On the basis of the facts, stated in the Slovenj Gradec Police’s criminal complaint, there are no grounds for suspicion that the officers of the special working group of the Criminal Police Directorate [the officers of the Slovenj Gradec Police and the Special Unit] committed the alleged criminal offences (...)”
33. The Slovenj Gradec Police report finds, inter alia, that D.P. and J.K. stopped the applicant’s car and that the Special Unit’s officers were under the command of M.J. It explains that the Head of the Special Unit was authorised to give statements concerning the procedure of the Special Unit.
“In the course of the proceedings, the additional information concerning the above-mentioned criminal complaint by the Slovenj Gradec Police and the MIA – Office of the Minister – were obtained. This enabled it to be established that the above-mentioned officers, all employees of the MIA, had participated in the procedure against the applicant.
It would appear from the already mentioned report of the MIA – Office of the Minister – that the employees of the MIA acted in accordance with their powers.
In addition, on 17 January 1997, a request for an investigation against Matko Aleksander was lodged with the investigating judge in the Slovenj Gradec District Court, for, among other matters, obstructing an official in the course of his duties (...).
In view of the above considerations, the accused D.P., J.K. and M.J. acted in the framework of their duties and powers, which they have as employees of the MIA, and therefore there is no reasonable suspicion (utemeljeni sum) that they committed the alleged criminal offences (...).
For those reasons, the criminal complaint must be dismissed.”
C. The criminal proceedings against the applicant
When asked to comment on the applicant’s allegations, the officers either denied the alleged ill-treatment or stated that they could not have seen the events well enough. A.K. testified in favour of the applicant, saying that he had not resisted but had been seriously beaten by the officers.
By a judgment of 22 November 1999 the court acquitted the applicant. The court, acknowledging that the applicant had sustained injuries on the relevant day, concluded that there had been “physical contact” between the applicant and the officers. The court, however, found that it had not been proven that the applicant had physically resisted the officers as described in the indictment since none of the Special Unit’s officers who had had physical contact with the applicant had been identified and there were no documents describing the conduct of the applicant after he had been stopped.
By a judgment of 12 February 2001, the Slovenj Gradec District Court convicted the applicant as charged and sentenced him to 3 months’ imprisonment, suspended for 3 years. The court found:
“Although it was not known which officers of the Special Unit were involved in the procedure after the applicant’s car had been stopped, the officers questioned sufficiently described the acts and the order of events as observers. They could also not have been influenced by anything and therefore they could be entirely trusted. On the contrary, it was impossible to trust either of the witnesses A.K. and D.Č., since it clearly transpires from their testimony that they knew the applicant well; they also confirmed that they knew him. Although the first witness was able to describe the events immediately after the operation, D.Č.’s testimony was unclear and biased in favour of the accused since he said that the officers had beaten the accused with truncheons all over his body and shouted, while it transpired from the medical documentation that he sustained injuries only on the upper part of the body, which is usual for this sort of measure.
The conduct of the accused (...) undoubtedly shows (...) all the elements of the criminal offence (...) since his conduct undoubtedly represented an active form of resistance against the police officers and force was also directed against the officers, though the latter in the interest of protecting the data concerning employees of the Special Unit were not questioned. In any event, given the sufficiently convincing testimony of witnesses questioned in the proceedings – police officers – questioning of the employees of the Special Unit was not necessary (...). ”
The court also found that the applicant had not injured any of the officers involved.
On 9 May 2001 the Maribor Higher Court upheld the conviction but amended the judgment with respect to the costs of the proceedings. The applicant did not appeal to the Supreme Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Use of force
B. Relevant criminal offences (as in force at the material time)
Minor bodily harm, section 133
“(1) Whoever inflicts bodily harm on another person resulting in the temporary weakness or impairment of an organ or part of his body, his temporary inability to work, the impairment of his appearance or temporary damage to his health shall be punished by a fine or by imprisonment for not more than one year.
(4) Prosecution of the offence defined in the first paragraph shall be initiated upon a complaint.”
Violation of human dignity by abuse of office or official duties, section 270
“An official exercising his office who, 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.”
Unlawful deprivation of liberty, section 143
“(1) Whoever unlawfully incarcerates another person or keeps him incarcerated or otherwise deprives him of the freedom of movement shall be sentenced to imprisonment for not more than one year.
(2) If the offence under the preceding paragraph is committed by an official through the abuse of office or of official authority, such an official shall be sentenced to imprisonment for not more than three years.
Obstructing an official in the course of his duties, section 302
“(1) Whoever, by force or threat of imminent use of force, prevents an official from performing an official act, which he intended to perform within the scope of his official duties, or whoever in the same manner compels an official to perform an official act, shall be sentenced to imprisonment for not more than two years.
(4) Whoever commits the offence under the first or third paragraphs of the present section against an official exercising a task of national or public security, pursuing the perpetrator of a criminal offence or guarding a detained person, shall be sentenced to imprisonment for not more than five years.”
C. Criminal proceedings (provisions in force at the material time)
“The public prosecutor shall be obliged to institute criminal proceedings if there is a reasonable suspicion that a criminal offence subject to mandatory prosecution has been committed, unless provided otherwise by the present Act.”
“If there are reasons for suspicion that a criminal offence subject to mandatory prosecution has been committed, the police shall be obliged to take steps necessary for pursuing the perpetrator, ensuring that the perpetrator or his accomplice do not go into hiding or flee, discovering and securing traces of crime or objects of value as evidence, and collecting all information that may be useful for the successful management of criminal proceedings.”
In addition, paragraph 2 of section 161 of the CPA reads as follows:
“If the public prosecutor is unable to infer from the criminal complaint whether the allegations contained in it are probable, or if information in the criminal complaint does not provide sufficient basis to request investigation, or if the public prosecutor has only been informed about a criminal offence and, in particular, if the perpetrator is not known, the public prosecutor may request the police to collect the necessary information which he cannot collect himself or through other agencies and to take other measures in order to discover the criminal offence and the perpetrator (sections 148 and 149). The public prosecutor shall be entitled to ask the police at any time to notify him of what they have undertaken and they shall be under an obligation to reply without delay.”
In the preliminary proceedings, most of the activities are carried out by the police, who, like the public prosecutor, do not have discretion as to whether to act (CPA, section 148), i.e. they must pursue the investigation ex-officio. However, it is the public prosecutor’s statutory right and duty to ensure that the facts are sufficiently investigated in order to decide whether or not there should be a prosecution (CPA, sections 20, 45 and 161/2).
“If, in the course of investigation, it appears that the proceedings should be expanded to cover another criminal offence or an offence against another person the investigating judge shall notify the public prosecutor accordingly. In this case investigative acts that call for urgent attention may be performed and the public prosecutor should be informed of everything that has been done.”
D. Civil remedy
“Everyone has the right to compensation for damage caused through unlawful actions in connection with the performance of any function or other activity by a person or body performing such function or activity under state authority, local community authority or as a bearer of public authority. Any person having sustained damage also has the right, in accordance with the law, to demand compensation directly from the person or body that has caused the damage.”
E. Constitutional Court’s decision of 6 July 2006 (Up-555/03-41 and Up-827/04-26)
66. On 6 July 2006 the Constitutional Court (Ustavno sodišče) delivered a decision in a case concerning a person who had died during a planned police operation and alleged interference with several constitutional rights of the deceased and his wife. The Constitutional Court found a violation of the right to the effective protection of human rights, as provided by Article 15 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 established (paragraph 33 of the decision):
“Article 15 paragraph 4 of the Slovenian 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 subject to torture or inhuman or degrading treatment by the police (državni represivni organi) or where he or she lost his or her life during a police operation. The aforementioned right includes also the effective access of aggrieved parties to such investigation. Despite the fact that Article 15 paragraph 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 the effective access of aggrieved parties.”
I. THE SCOPE OF THE CASE
The Government replied to the questions concerning the exhaustion of domestic remedies and the six-month rule and the alleged breaches of Articles 3 and 5. In addition, they provided comments on both sets of proceedings – those following the applicant’s criminal complaint and the criminal proceedings against the applicant.
70. The Court considers that, although the Government were not asked to comment specifically on the question concerning Article 5 § 1 and the length of the criminal proceedings against the applicant (Article 6 § 1), the arguments raised by the Government on those issues in their observations, submitted before and following the admissibility decision, do permit the Court to conclude that they had an opportunity to respond to the applicant’s allegations and to submit their defence. The Court therefore sees no obstacles to ruling on all the applicant’s allegations under Articles 3, 5 and 6 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. Preliminary objections
1. Arguments of the parties
(a) The Government
They argued that the applicant, after the dismissal of his criminal complaint on 17 January 1997, could have tried to institute criminal proceedings as a subsidiary prosecutor by submitting either a bill of indictment (obtožni predlog) or a request for investigative measures (preiskovalna dejanja) to the Slovenj Gradec District Court. Had he used this opportunity, the applicant would have been also able to file his compensation claim in the criminal proceedings (premoženjsko-pravni zahtevek).
In support of their arguments, the Government submitted a statistical overview of civil claims submitted by persons who had been injured during police procedures prior to 2002 (see paragraph 65 above).
(b) The applicant
2. The Court’s assessment
The Court has held on many occasions that this requirement cannot be satisfied solely by instituting civil proceedings (see, among others, Krastanov v. Bulgaria, no. 50222/99, § 60, 30 September 2004).
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Arguments of the parties
2. The Court’s assessment
(a) Concerning the alleged inadequacy of the investigation
(i) General principles
(ii) Application of these principles in the present case
However, in the instant case the Public Prosecutor’s conduct also lacked the necessary transparency and appearance of independence (see, mutatis mutandis, McKerr v. the United Kingdom, no. 28883/95, § 131, ECHR 2001 III, and Hugh Jordan v. the United Kingdom, no. 24746/94, § 123, ECHR 2001 III (extracts)). In this respect, the Court notes that the Public Prosecutor based her decision to dismiss the applicant’s criminal complaint solely on the reports submitted by the police and the MIA. These reports lacked information as to the investigative measures taken (see, mutatis mutandis, Mahmut Kaya v. Turkey, no. 22535/93, § 105, ECHR 2000 III). Nor did the Public Prosecutor undertake any independent steps; for example, interviewing the applicant and the officer involved, ordering a forensic examination of the applicant’s injuries, questioning the use of electroshock equipment, etc. (see, by contrast, Berliński v. Poland, nos. 27715/95 and 30209/96, §§ 69 and 70, 20 June 2002). There are no indications that she was prepared in any way to scrutinise the police and the MIA’s account of the incident.
In the instant case, provided that the authorities discharged their duties as required by Article 3 of the Convention as well as by the relevant domestic law (see paragraphs 57-59 above), the criminal complaint and, moreover, the applicant’s repeated allegations in the context of the criminal proceedings pertaining to the same historical event, should normally have brought about this result. However, as the Court has established above, in the instant case the authorities did not undertake the necessary measures. The investigation thus failed to produce any tangible results, not even the names of the alleged perpetrators. In such circumstances, the applicant could not be required to institute a subsidiary prosecution, which would have had the same objective as a criminal complaint and had no prospect of success. Nor was the applicant obliged to institute civil proceedings for compensation (see, mutatis mutandis, H.D. v. Poland (dec.), no. 33310/96, 7 June 2001, Wójcik v. Poland, no. 26757/95, Commission decision of 7 July 1997, DR 90, p. 24, and Krastanov, cited above, § 60). As pointed out above, even if the applicant had made such attempts, the Court is not persuaded that they would have had any reasonable prospect of success (see, mutatis mutandis, Gül, cited above, § 95). The statistics submitted by the Government do not contain anything that would lead the Court to reach a different conclusion.
(b) Concerning the alleged ill-treatment
(i) General principles
The requirements of an investigation and the undeniable difficulties inherent in the fight against crime cannot justify placing limits on the protection to be afforded in respect of the physical integrity of individuals (the Ribitsch, cited above, § 38). In this connection, the Court recalls that Article 3 enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or organised crime, the Convention prohibits, in absolute terms, torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (see Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79, and Assenov and Others, cited above, § 93).
(ii) Application of these principles in the present case
Having reached that conclusion and since the Court is not able to determine whether the impossibility of establishing the facts concerning the use of electric shocks is due to the lack of a proper investigation or not, the Court does not consider it necessary to examine the applicant’s allegations in that respect (Ay v. Turkey, no. 30951/96, § 58, 22 March 2005).
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
113. The applicant alleged that his arrest had been unlawful, contrary to Article 5 of the Convention, which, in so far as relevant, provides:
“ 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
The applicant, on the other hand, claimed that the remedies referred to by the Government were not effective in his case.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
Article 6 § 1 of the Convention, in so far as relevant, provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal...”
1. The proceedings concerning the applicant’s criminal complaint
122. Notwithstanding the issue of the applicability of Article 6 to the proceedings concerning the applicant’s criminal complaint (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 I), the Court notes that this complaint is inextricably bound up with the more general complaint concerning the manner in which the investigating authorities treated the applicant’s allegations. In conformity with its approach in the admissibility decision of 8 July 2004, the Court considers that it is not necessary to examine this complaint separately, having regard to its earlier finding that the authorities did not comply with the procedural requirements of Article 3 (paragraphs 88-97 above).
2. The criminal proceedings against the applicant
123. The applicant further complained about the length of the criminal proceedings instituted against him. He submitted that more than four years had elapsed between the events in question and the judgment of the first-instance court. Such a delay could not, in his view, be attributed to him.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 2 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger John