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    You are here: BAILII >> Databases >> European Court of Human Rights >> Boris BUTOLEN v Slovenia - 41356/08 [2009] ECHR 995 (9 June 2009)
    URL: http://www.bailii.org/eu/cases/ECHR/2009/995.html
    Cite as: [2009] ECHR 995
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    THIRD SECTION

    PARTIAL DECISION

    AS TO THE ADMISSIBILITY OF

    Application no. 41356/08
    by Boris BUTOLEN
    against Slovenia

    The European Court of Human Rights (Third Section), sitting on 9 June 2009 as a Chamber composed of:

    Josep Casadevall, President,
     Elisabet Fura-Sandström,
     Boštjan M. Zupančič,
     Alvina Gyulumyan,
     Ineta Ziemele,
     Luis López Guerra,
     Ann Power, judges,
    and Stanley Naismith, Deputy Section Registrar,

    Having regard to the above application lodged on 26 August 2008,

    Having deliberated, decides as follows:

    THE FACTS

    1.  The applicant, Mr Boris Butolen, is a Slovenian national who was born in 1974 and lives in Zetale. He is represented before the Court by Mr Stanislav Klemenčič, a lawyer practising in Ptuj.

    A.  The circumstances of the case

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

    1.  Arrest

    3.  On 18 February 2001, at 8.30 p.m., two police officers entered a bar called Špas bar in the town of ČermoZiše. They asked the owner of a white VW Golf to come forward. The applicant, who was the owner of the car in question and was in the bar that evening, approached the officers and voluntarily followed them out of the bar towards the car. On the way out the officers asked the applicant where he had his gun. The applicant replied that he had no gun. One officer requested the applicant to open the boot of the car. The applicant took the keys from the car, which had been unlocked, to unlock the boot. At that point one of the officers hit him on the head. Both officers continued to beat the applicant until they knocked him down. They then kicked him all over his body. When the applicant started to get up, he received several punches to the stomach. The police officers then handcuffed him and took him to Podlehnik Police Station (Policijska postaja Podlehnik) in a police car. In his criminal complaint (paragraph 7 below), the applicant also alleged that he was hit twice in the face in the police car. At the police station one of the officers punched the applicant, who was still handcuffed, several times in the face. Further to the arrival of two other officers, the beating stopped. The applicant was then allowed to call his legal representative. The latter requested the officers to take him to hospital.

    4.  The applicant was taken to hospital, where he stayed until 22 February 2001. According to the medical reports, the applicant suffered concussion, injury to the upper arm (abruption of the left humerus), excoriation, haematoma and contusion on the head, neck and thorax, and a rupture of the eardrum (perforation of tympanums).

    5.  The applicant also submitted that two of his teeth had been loosened and one broken during the alleged ill-treatment.

    6.  The applicant continued out-of-hospital treatment until 19 June 2001.

    2.  The applicant’s criminal complaint

    7.  On 28 March 2001 the applicant lodged a criminal complaint with the Ptuj District Prosecutor’s Office (OkroZno drZavno toZilstvo na Ptuju) against the unidentified officers for the criminal offence of aggravated bodily harm (hude telesne poškodbe) and violation of human dignity by abuse of office or official duties (kršitev človekovega dostojanstva z zlorabo uradnega poloZaja ali uradnih pravic).

    8.  On 6 November 2001 the Ptuj District Prosecutor’s Office dismissed the criminal complaint. On the basis of the police report prepared by Maribor Police Unit (Policijska uprava Maribor) (to which Podlehnik Police Station is subordinate), the public prosecutor found that the police officers, who were identified as J.Š. and G.K., had acted in accordance with the law. In the decision dismissing the applicant’s criminal complaint the public prosecutor found that the applicant had allegedly disturbed public order in another bar, called Bedrač bar, in which he had threatened customers with a gun. Further to that allegation, which had been communicated to the police by a person from the aforementioned bar, the two officers attempted to find the applicant. They entered the Špas bar for that purpose. As regards the subsequent events, the public prosecutor found in her decision that the applicant had refused to cooperate with the officers and had taken a metal tool out of his car in an attempt to attack officer J.Š. She concluded that this and the fact that the applicant had presumably been carrying a gun justified the use of force and the injuries the applicant had sustained as a result.

    9.  The public prosecutor’s decision did not draw the applicant’s attention to his right to initiate a criminal prosecution as a “subsidiary” prosecutor (subsidiaren toZilec) within eight days, as required by section 60 of the Criminal Procedure Act. The applicant was not involved in these proceedings in any other way, and did not have access to the police report in question.

    10.  The public prosecutor’s decision was served on the applicant’s representative on 16 November 2001.

    3.  The criminal proceedings instituted against the officers by the applicant

    (a)  The judicial investigation

    11.  On 22 November 2001 the applicant, acting as a subsidiary prosecutor, lodged a request for an investigation with the Ptuj District Court (OkroZno sodišče na Ptuju). The request was upheld.

    12.  On 24 January 2002 the two accused officers were heard by the investigating judge. Both of them refused to give any statements.

    13.  On 3 June 2002 the investigating judge heard evidence from the owner of the Bedrač bar, who testified that she had seen the applicant with a gun in the bar that evening and that the applicant was known as an aggressive person.

    14.  On 1 July 2002 the investigating judge heard the applicant. The applicant’s testimony essentially corresponded to the above description of the arrest; he denied having been beaten in the police car, however. The applicant maintained that he did not possess a gun and that the police had therefore not found one. He also stated that nobody had witnessed the arrest, except A.K., a customer from the Špas bar. On the same day the investigating judge examined six witnesses: four from the Bedrač bar and two from the Špas bar. As regards the latter, a waitress testified that she had noticed nothing unusual on that day and confirmed that the officers had entered the bar and asked the applicant to step outside with them. She had not witnessed the events outside the bar. A.K. testified that he had heard the applicant screaming outside and as he had left the bar had seen him lying on the ground being beaten by the officers. He had observed the situation for only a few seconds, however, and had not been able to see the incident very well because it had been night time.

    The applicant also stated that he had no interest in pursuing a pecuniary claim for compensation in these proceedings because he was seeking damages in the civil proceedings.

    15.  On 25 September 2002 the investigating judge heard evidence from a forensic expert, L.T. The latter stated, on the basis of medical records (see paragraph 4 above), that the applicant had sustained at least five blows during the arrest: at least two to the head, one to the neck, one to the thorax and a hard blow to the shoulder, and possibly also a kick while he was on the ground. He further specified that it was possible that the applicant’s face had been hit with an open hand, but strong force had to have been used to result in such an ear injury. As regards the upper-arm injury, L.T. explained it could only have been the result of a hard direct blow or kick, but could also have been caused during a professional hit or throw.

    16.  On 12 February 2003 the applicant lodged an indictment against the two police officers.

    (b)  The trial

    17.  The Ptuj District Court panel, presided by Judge M.K., held hearings on 12 and 29 December 2006 and on 23 March, 13 April, 31 May, 22 August, 31 August and 6 September 2007. It heard a number of witness, obtained a forensic report from forensic expert S.T., which had been requested in the context of the civil proceedings (see paragraphs 25, 30, 31 below), requested a report by the Commission of the Faculty of Medicine (Komisija Medicinske fakultete v Ljubljani) (see paragraphs 32 and 33 below), examined the forensic experts at the hearing and obtained an opinion of an expert in fighting techniques.

    18.  On 6 September 2007 the court convicted J.Š. and G.K. of the criminal offence of violation of human dignity by abuse of office or official duties and sentenced them to imprisonment of four and three months respectively, suspended on the condition that they commit no further crime for the next two years. The officers were acquitted of the charges of aggravated bodily harm. In its judgment the Ptuj District Court, referring to the case of Matko v Slovenia, (no. 43393/98, 2 November 2006), noted that it had reached the decision independently of the findings of the initial police inquiry and the public prosecutor’s decision, which had not complied with the requirement of an effective investigation. The court accepted the accused officers’ assertion that the applicant had attempted to attack them with a tool, despite the fact that the tool had not been seized. It also accepted the accused officers’ explanation that they had used force against the applicant – a professional hit and a professional throw – in order to overcome his resistance, which was lawful. It also considered that there was insufficient evidence that the applicant had been hit in the car, an allegation that had, moreover, been inconsistent. On the other hand the court found, on the basis of the evidence gathered in the criminal investigation and during the trial, in particular the testimony of A.K. and the forensic reports, that the applicant had not been subjected only to the above-mentioned use of force, but had received direct blows and/or kicks, possibly when lying or kneeling down, and that he had been hit, at least once, in the face while waiting at the police station. As regards the witness A.K., who had passed by the scene of the incident when leaving the bar, the court noted that although A.K. had known the applicant, there was no close relationship between them which could call into question A.K.’s credibility as a witness. It further noted that A.K. had first stated, during the investigation, that he had seen the applicant being beaten up by the officers when lying on the ground, but that subsequently, at the hearing at which the two accused officers had been present in their uniforms he had modified his statement by saying that he had seen one of them kicking the applicant. The court, which took into account the evidence concerning the visibility at the scene of the incident and heard the defence witness, which failed to undermine A.K.’s credibility, concluded that it was to be believed that A.K. had seen the applicant being kicked by at least one of the officers. It also rejected the accused officers’ assertion that, given the circumstances, they had been entitled to use even lethal force. It noted in this respect that the officers had outnumbered the applicant, were in excellent physical condition and were trained in fighting techniques. In addition, they had been involved in a random operation and had been informed of the possibility that the applicant might be carrying a gun. The court concluded that the accused officers had ill-treated the applicant in breach of Article 3 of the Convention and Article 18 of the Slovenian Constitution and committed the criminal offence in question. As regards the charges of aggravated bodily harm, the court found that it could not determine with the degree of certainty required in criminal cases whether the injuries with long-term consequences, namely, the abruption of the left humerus and rupture of the eardrum, had been caused intentionally by the unlawful use of force.

    (c)   The appeal

    19.  The applicant appealed on 5 November 2007. The officers also lodged appeals against the judgment in so far as it related to their conviction.

    20. On 27 February 2008, after deliberations, the Maribor Higher Court (Višje sodišče v Mariboru) dismissed the applicant’s appeal and upheld the accused officers’ appeal. It found, in a rather brief judgment, that the first-instance court had erred in establishing the facts; that the defence statements of the accused officers were consistent and credible and should be fully accepted; that the operation had not been a random one, as the applicant had a reputation as a dangerous person and had attacked the officers with a tool. It concluded that “the conduct of both accused officers, who had ultimately managed to get the applicant under control, had therefore proved to be correct and lawful”. Lastly, the court called into question the credibility of witness A.K. and rejected the reasoning given by the first-instance court that the change in his testimony had been understandable (see paragraph 18 above). As the Maribor Higher Court considered that there was no evidence that the officers had committed the criminal offence concerned, it acquitted them of all the charges.

    21.  By a decision of 5 May 2008, the applicant was ordered to pay 14,572 euros (EUR) for the costs and expenses of the proceedings, which was broken down to EUR 3,214 for the procedural costs, such as expert fees, and EUR 11,358 for the officers’ legal representation.

    (d) Further remedies

    22.  On 16 May 2008 the applicant requested the Supreme Prosecutor’s Office (Vrhovno drZavno toZilstvo) to lodge a request for protection of legality (zahteva za varstvo zakonitosti) against the Maribor Higher Court’s judgment. On 15 September 2008 the Supreme Prosecutor’s Office rejected his request.

    23.  On 19 May 2008 the applicant lodged a constitutional appeal in which he argued that the subsidiary prosecutor should have locus standi in proceedings before the Constitutional Court, and that he should have been able to lodge a request for protection of legality with the Supreme Court, like the public prosecutor. He complained that the proceedings, in particular the judgment of the Maribor Higher Court, had been unfair and arbitrary. He submitted that the Maribor Higher Court’s judgment was biased, which could also be because the judge rapporteur was a former police officer. The applicant also referred to the case-law of the European Court of Human Rights finding that a subsidiary prosecution was not a proper remedy for the protection of human rights.

    The Constitutional Court has not yet decided on the applicant’s constitutional appeal.

    4.  Civil proceedings for compensation instituted by the applicant

    24.  On 27 December 2001 the applicant instituted civil proceedings against the State in the Ptuj District Court seeking damages for the injuries he had sustained as a result of ill-treatment by the police (see paragraph 3 above).

    25.  In the course of the proceedings the applicant modified his claim for non-pecuniary damages to 2,800,000 Slovenian tolars (SIT) (approximately EUR 11,700). The court heard several witnesses, obtained a medical report from an expert, S.T., and took account of the evidence obtained in the criminal proceedings.

    26.  The court panel, presided by Judge A.H.P., delivered its judgment on 22 August 2006. It found that the officers had admitted to having used only one “professional hit” and one “professional throw” against the applicant. They maintained that they had not used any other force against him and that all the injuries he had sustained had been caused by his passive resistance to arrest. Having regard to the medical opinions of S.T. (see paragraphs 30 and 31 below) and L.T. (see paragraph 15 above), the court concluded that the officers had “clearly overstepped their powers” seeing that the medical experts had confirmed that the applicant had sustained injuries which had been caused by several kicks or blows. The applicant was granted compensation for non-pecuniary damage in the amount of SIT 1,820,000 (approximately EUR 7,600).

    27.  The applicant and the State appealed.

    28.  On 18 September 2007 the Maribor Higher Court dismissed the applicant’s appeal.

    29.  On 13 November 2007 the Maribor Higher Court upheld the first-instance court’s conclusion as regards the lawfulness of the use of force against the applicant, finding that the police officers had “greatly overstepped their powers” and that the applicant had sustained injuries as a result. However, it allowed, in part, the State’s appeal in respect of the damage suffered as a result of “fear” and “bodily pain”, which are two kinds of non-pecuniary damages for which monetary compensation can be claimed under Slovenian law. The court reduced the award of damages to EUR 5,853.

    5.  Medical forensic reports

    (a) Report of 2 July 2006 by forensic expert S.T., prepared in the context of the civil proceedings

    30.  The report lists the following injuries sustained by the applicant on the day of the incident and their most probable cause:

    - Lesions on face: caused by a punch, kick or fall onto hard ground.

    - Rupture of the right eardrum: normally caused by a slap.

    - Several excoriations: caused by friction between the skin and an object.

    - Abruption of the left humerus: normally caused during a direct fall or by a blow to the shoulder.

    31. As regards the above-mentioned injuries, the forensic expert concluded that the applicant had received several hard blows to the right side of his face, one of which had resulted in the eardrum injury. He also considered it possible that the applicant had received a hard blow to his left shoulder. Most of the injuries could have been caused by a punch or a kick. As regards the remaining skin excoriations, these had been caused by a lighter application of force.

    (b)  Report of 16 February 2007 by the Faculty of Medicine, Ljubljana, prepared in the context of the criminal proceedings

    32.  The report lists the following injuries sustained by the applicant on the day of the incident and their most probable cause:

    - Abruption of the left humerus (abruptio tuberculi maioris humeri sin): most likely caused by a fall onto hard ground.

    - Concussion: caused by a punch, kick or fall onto hard ground.

    - Excoriation on the neck and thorax: caused by a punch, kick or fall onto hard ground.

    - Rupture of the right eardrum: caused by a punch or a slap, as evidenced by the fact that the applicant sustained a swelling of the right cheek and a haematoma around the right eye. The report finds that any other reason for the rupture of the eardrum in this case is rather unlikely.

    - Lesions on thorax, left shoulder, neck and head: caused by a punch, kick or fall onto hard ground.

    33.  The report concludes that the above injuries had consequences of a temporary nature.

    B.  Relevant domestic law and practice

    1.  The Constitution

    34.  Article 18 of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads as follows:

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

    2.  Criminal Procedure Act

    35.  In Slovenia public prosecution is mandatory where there is a reasonable suspicion (utemeljeni sum) that a criminal offence subject to mandatory prosecution has been committed. Public prosecutions are conducted by the public prosecutor’s office, an autonomous body within the justice system.

    36.  If the public prosecutor dismisses the criminal complaint or drops the charges at any time during the proceedings, the aggrieved party has the right to take over the conduct of the proceedings as a “subsidiary prosecutor” (subsidiarni toZilec), that is, as an aggrieved party acting as a prosecutor (section 19(3) of the Criminal Procedure Act, Zakon o kazenskem postopku, Official Gazette no. 63/94 – “the CPA”). A subsidiary prosecutor has, in principle, the same procedural rights as the public prosecutor, except those that are vested in the public prosecutor as an official authority (CPA, section 63(1)). If the subsidiary prosecutor takes over the conduct of the proceedings, the public prosecutor is entitled at any time, pending the conclusion of the main hearing, to resume the conduct of the prosecution (CPA, section 63(2)). During the proceedings, the aggrieved party may lodge his pecuniary claim for compensation (premoZenjsko-pravni zahtevek, sections 100-111 of the CPA). Such a claim may be lodged no later than by the end of the last hearing before the first-instance court (section 102 of the CPA).

    37.  Preliminary proceedings are initiated either upon a criminal complaint lodged by any person with the police or the public prosecutor (CPA, section 147) or upon the police or the public prosecutor being informed by any means whatsoever of a situation that gives rise to “grounds for suspicion” (razlogi za sum), that is, less than a reasonable suspicion, that an offence which is subject to mandatory prosecution has been committed. In this connection section 148(1) of the CPA provides:

    “If there are reasons for suspecting that a criminal offence subject to mandatory prosecution has been committed, the police shall take the steps necessary to pursue the perpetrator; ensure that the perpetrator or his accomplice does not go into hiding or flee; uncover and secure traces of the crime or objects of value as evidence; and collect any information that may be useful for the successful conduct of criminal proceedings.”

    In addition, section 161(2) 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 the information in the criminal complaint does not provide a sufficient basis to request an investigation, or if the public prosecutor has merely learnt of a criminal offence and, in particular, if the perpetrator has not been identified, the public prosecutor may request the police to collect the necessary information which he cannot collect himself or through other agencies and take other measures in order to reveal the criminal offence and identify the perpetrator (sections 148 and 149). The public prosecutor may ask the police at any time to notify him of the measures they have undertaken and they shall be under an obligation to reply without delay.”

    38.  In the preliminary proceedings most of the measures are taken by the police, who, like the public prosecutor, do not have a discretion as to whether to act (CPA, section 148). Accordingly, 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).

    39.  If the evidence gathered in respect of the criminal complaint is inconclusive, the public prosecutor may request the police to collect further necessary information and report back to him or her on the results (CPA, section 161/2, above). If, even after such additional measures have been taken, the public prosecutor concludes that there is no reasonable suspicion (utemeljeni sum) that a specific person committed a criminal offence the criminal complaint must be dismissed (CPA, section 161/4). Following dismissal of the criminal complaint, the public prosecutor must notify the aggrieved party accordingly within eight days and inform him or her of the right to continue the proceedings in the capacity of subsidiary prosecutor (CPA, sections 60 and 161/1).

    40.  Conversely, if the standard of reasonable suspicion is satisfied, the investigating judge, upon the request of the public prosecutor or subsidiary prosecutor, opens a criminal investigation into the alleged criminal offence (CPA, sections 167 and 186).

    41.  The investigating judge may at any time during the investigation terminate the proceedings if he establishes that the act under investigation is not a criminal offence or if there is not enough evidence that the accused has committed a criminal offence (CPA, section 181).

    42.  At the end of the investigation, if the investigating judge decides that a case has been investigated to the extent that an indictment can be made out, he must send the case file to the public or subsidiary prosecutor (CPA, section 184), who may then decide to lodge an indictment. The accused can challenge the indictment before the interlocutory-proceedings panel (CPA, section 274). If no challenge is made to the indictment or if the challenge is unsuccessful, the court begins the trial.

    3.  Penal Code

    43.  Article 134 of the Penal Code (Kazenski zakonik, Official Gazette no. 63/94), which concerns the criminal offence of aggravated bodily harm, reads, in so far as relevant, as follows:

    “(1) Whosoever inflicts bodily harm on another person or causes him life-endangering personal injury or destruction or permanent serious impairment of an organ or part of the body, serious temporary weakness of a vital part or organ of the body, temporary loss of his ability to work, permanent or serious temporary diminution of his ability to work, temporary disfigurement, or serious temporary or less severe but permanent damage to his health shall be sentenced to imprisonment for not less than six months and not more than five years.”

    44.  Article 270, entitled “Violation of human dignity by abuse of office or official duties”, provides:

    “An official who, in the exercise of his office and by abuse of his office or official duties, treats another person badly, insults him, inflicts minor bodily harm upon him or otherwise treats him in such a way as to affect his human dignity shall be sentenced to imprisonment for not more than three years.”

    4.  Constitutional Court’s decision of 6 July 2006 (Up-555/03-41 and Up-827/04-26)

    45.  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 the alleged interference with several constitutional rights of the deceased and his wife. In that case the request for a criminal investigation into the incident lodged by the subsidiary prosecutors - the deceased’s wife and father - was rejected by the court, and so was their request for the proceedings to be reopened.

    46.  The Constitutional Court drew a distinction between, on the one hand, cases where the subsidiary prosecutors challenged before it a final conviction or other court decision by which the proceedings were finally discontinued, and, on the other hand, cases where a request for an investigation or reopening of an investigation in respect of officers who had been involved in the operation leading to the death of an individual was rejected. As regards the former, it was established case-law of the Constitutional Court that subsidiary prosecutors in such a position could not challenge final judgments or decisions before the Constitutional Court. As regards the latter, the Constitutional Court found that appellants had locus standi to complain of the lack of an effective independent investigation.

    47.  After declaring the constitutional appeal in that particular case admissible, the Constitutional Court went on to find 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. It established (paragraph 33 of the decision):

    “Article 15, paragraph 4, of the Slovenian Constitution should be interpreted to include a right to an independent investigation of the circumstances of an incident in which a person was allegedly subjected to torture or inhuman or degrading treatment by the police (drZavni represivni organi) or where he or she lost his or her life during a police operation. The aforementioned right includes 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 be conducted outside judicial proceedings on condition that it is independent and provides for the effective access of aggrieved parties.”

    48.  That decision of the Constitutional Court was purely declaratory and did not have any direct effect on the investigation of the incident; nor did it provide grounds for compensation for damage that occurred as a result of a violation of constitutional rights.

    COMPLAINTS

    49.  The applicant complains that he was ill-treated by police (Article 3 of the Convention). He submits in this connection that he was not carrying a gun or a tool as alleged by the police, and the police did not adduce any evidence to prove their submission. He further submits that while the police officers, who were highly trained in defence techniques, alleged that the applicant had resisted arrest, they had not sustained any injuries during the incident. The applicant claims that his allegations were fully supported by forensic reports.

    50.  The applicant further complains under Article 3 that the public prosecutor failed to investigate his allegations of ill-treatment effectively and independently and relied solely on the police report. The applicant was not involved in the investigation at all. He also complains that, given that no investigating steps were taken apart from the preparation of the police report, the time taken by the public prosecutor to reject the criminal complaint was excessive.

    51.  In addition, the applicant submits that it was the State’s responsibility to investigate his allegations of ill-treatment. As this was unsuccessful, he instituted a subsidiary prosecution, which, in his submission, was also ineffective in breach of Articles 3 and 6 of the Convention. In this connection the applicant maintains that he had to carry the burden of proving that he had been subjected to ill-treatment by police, although, according to the principles established by, inter alia, the Court, the reverse burden of proof should be on the State. He complains that the assessment of evidence by the first-instance criminal court was in breach of his right to a fair hearing. Furthermore, he complains about the judgment of the Maribor Higher Court, which was a final decision in the case and by which the officers were acquitted. This judgment lacked any relevant argumentation. It entirely accepted the police officers’ version, and for no good reason rejected the testimony of the only eyewitness and ignored the findings in the forensic reports.

    52.  Lastly, the applicant complains under Article 6 that the Maribor Higher Court, which decided on appeal in the criminal proceedings, lacked the required impartiality. He submits that the judge rapporteur was a previous police officer and the president of the panel the wife of a high-ranking officer in the security intelligence agency.

    THE LAW

    A. Complaints under Article 3 of the Convention

    53.  The applicant complains that he was a victim of a violation of Article 3 of the Convention, as he was ill-treated by police. He further complains under Article 3 that the public prosecutor’s investigation into his allegations was not effective, independent and prompt and that he was not involved in it. Likewise, he complains that the subsidiary prosecution he instituted was ineffective and in breach of Article 3 (see paragraphs 49-51 above).

    Article 3 reads as follows:

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

    54.   The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

    B. Complaints under Article 6 of the Convention

    55.  The applicant’s complaints under Article 6 of the Convention relate to the criminal proceedings against the officers. He complains about the burden of proof in these proceedings, about the assessment of evidence by the first- and second-instance courts and about the reasoning of the Maribor Higher Court’s judgment of 27 February 2008. In addition, the applicant complains that the Maribor Higher Court lacked the required impartiality (see paragraphs 51-52 above).

    56.  As regards the issue of the burden of proof in the criminal proceedings, the Court finds that it is more appropriate to consider it only in the context of complaints under Article 3, which examination has been adjourned.

    57.  As regards Article 6, the Court notes that the applicant was not the accused but the injured party in the criminal proceedings complained of. Thus, the criminal limb of Article 6 does not apply. However, Article 6 § 1 under its “civil head” applies to criminal proceedings involving a determination of pecuniary claims asserted by the injured parties (“civil-party complaints”) and, even in the absence of such claims, to those criminal proceedings the outcome of which is decisive for the “civil right” in question (see Perez v. France [GC], no. 47287/99, §§ 65-67 and 71, ECHR 2004 I). The relevant part of Article 6 reads as follows:

    “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

    58.  In the present case, the applicant pursued a civil claim in civil proceedings which started on 27 December 2001 and ended on 13 November 2007. On 22 November 2001 he initiated criminal proceedings in his capacity as subsidiary prosecutor. The Court notes that in the criminal proceedings the applicant sought the conviction of the two officers and did not pursue a pecuniary claim for compensation (see paragraph 14 above), which can be explained by the fact that he was pursuing the mentioned civil proceedings for damages at the same time. In the criminal proceedings, the first-instance judgment was delivered on 6 September 2007. The applicant appealed on 5 November 2007 and the Maribor Higher Court delivered its judgment on 27 February 2008.

    59.  Assuming that the outcome of the first-instance criminal proceedings might have had relevant consequences for the civil proceedings pending concurrently and that Article 6 § 1 is therefore applicable to the complaint relating to the assessment of evidence by the first-instance criminal court (see, mutatis mutandis, Jakešević v Croatia (dec.), no.18584/05, 10 January 2008), the Court in the light of all the material in its possession finds that this complaint does not disclose any appearance of a violation of the provision invoked. It follows that this part of the application must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

    60.  As regards the remaining complaints under Article 6 § 1, which concern the Maribor Higher Court and its judgment of 27 February 2008, the Court notes that the applicant’s civil claim relating to the incident in question had already been decided when the appeal proceedings before the Maribor Higher Court were being conducted. Therefore and regard being had to the fact that the applicant did not have a statutory right to submit a pecuniary claim for compensation after the end of the last hearing in the first-instance criminal proceedings (see paragraph 36 above), the Court finds that the relevant proceedings before the Maribor Higher Court cannot be understood as being capable of affecting the civil component of the case (see, mutatis mutandis, Jakešević, cited above). It also notes that the applicant did not submit any argument to the contrary.

    61.  As the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently, but must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law (see Perez, cited above, §70), the Court considers that the complaints relating to the appeal proceedings before the Maribor Higher Court are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be declared inadmissible in accordance with Article 35 § 4.

    For these reasons, the Court unanimously

    Decides to adjourn the examination of the applicant’s complaints concerning Article 3 of the Convention;

    Declares the remainder of the application inadmissible.

    Stanley Naismith Josep Casadevall
    Deputy Registrar President

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