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MIZIGAROVA v. SLOVAKIA - 74832/01 [2010] ECHR 2018 (14 December 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/2018.html
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[2010] ECHR 2018
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FOURTH
SECTION
CASE OF MIZIGÁROVÁ v. SLOVAKIA
(Application
no. 74832/01)
JUDGMENT
STRASBOURG
14
December 2010
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 MiZigárová
v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 23 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 74832/01) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Slovak national, Mrs Miluša
MiZigárová (“the applicant”), on 13
April 2001.
The
applicant was represented by Mr A. Dobrushi of the European Roma
Rights Centre, a lawyer practising in Budapest. The Slovak Government
(“the Government”) were represented by their Agent,
Ms A. Poláčková.
By
a decision of 3 November 2009 the Court declared the application
admissible.
The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, Mrs Miluša MiZigárová, is a Slovak
national who was born in 1979 and lives in Poprad.
She is represented before the Court by Ms L. Gall of the
European Roma Rights Centre, a lawyer practising in Budapest. The
Slovak Government (“the Government”) were represented by
their Agent, Ms M. Pirošíková.
A. The circumstances of the case
The
facts of the case, as submitted by the parties, may be summarised as
follows.
At
approximately 8.00 to 8:30 p.m. on 12 August 1999 police officers
G. and J. apprehended the applicant's husband, Mr Ľubomír
Šarišský, and another person (“R.K.”)
on suspicion of having stolen bicycles. At the time of his arrest, Mr
Šarišský was twenty-one years old and in good
health.
Following
their arrest Mr Šarišský and R.K. were driven to
the District Police Department in Poprad. After four policemen
questioned him, Mr Šarišský was taken to
another room for further interrogation by Lieutenant F., an off-duty
officer with whom he had had previous encounters. At some point
during the interrogation, Mr Šarišský was shot
in the abdomen. He died after four days in hospital as a result of
the bullet wound sustained in the police station during his
interrogation.
The
following is a more detailed description of the relevant facts as
alleged by the applicant.
1.
Facts relating to the lethal injury of Mr Šarišský
After
being taken to the District Police Department, Mr Šarišský
and R.K. were questioned by police officers H. and K., who were on
duty at the time. Officers G. and J. were present during the
interrogation. When later testifying before the investigator, Sgt. H.
stated that “Šarišský was aggressive
during the interrogation, he kept getting up from the chair, banged
his head against the wall saying he would jump from the window”.
Sgt. H. stated that Mr Šarišský had not been
handcuffed during interrogation. According to police officer G.,
however, Mr Šarišský remained handcuffed, at
least for the time he was present.
According
to officer H., Lt. F. joined the interrogation when Mr Šarišský
was signing the record of the interrogation. Mr Šarišský
and Lt. F. started arguing, shouting at each other using their
first names. Lt. F. was off duty at the time. His shift was to start
at 11 p.m.
Lt.
F. subsequently phoned his superior, the Director of the Criminal
Police Department in Poprad, and informed him that Mr Šarišský
and another person had been apprehended. The Director told Lt. F.
that he had been informed about the arrest by the operations officer,
that he would come to the task assignment meeting at 10.30 p.m. to
decide who would question the suspects, and that “it might as
well be him”.
Lt.
F. considered that he had been authorised to question Mr Šarišský.
He volunteered to take over the questioning. He took Mr Šarišský
to his office in the District Police Directorate, which was located
in a different part of the same building. Lt. F. handcuffed
Mr Šarišský to a radiator and left his
office for a while.
Upon
his return Lt. F. removed the handcuffs from Mr Šarišský
and resumed the questioning. Mr Šarišský was
subsequently shot in the abdomen with Lt. F.'s service pistol. Lt. F.
telephoned the operations officer and asked him to call the emergency
services. He then ran to the operations centre to repeat his request.
Lt. F. returned to his office and carried Mr Šarišský
down to the vestibule. From there he was transported to a hospital.
At
midday on 13 August 1999 Capt. T., a police officer of the Department
of Supervision and Inspection Service of the Ministry of the
Interior, questioned Mr Šarišský in his hospital
bed. The questioning took place in the presence of the head
physician.
Mr
Šarišský was able only to move his head in
response to questions asked. When asked whether he was shot by the
policeman, he answered “no”; whether he shot himself, he
answered “yes”; did he steal the gun from the police -
“no”; did he ask for the weapon from the policeman and it
was handed to him, he answered “yes”; did the policeman
hit him - “yes”; and when asked if there was any one else
in the room besides the policeman, he answered “no”. When
asked by Capt. T., the head physician allegedly stated that Mr
Šarišský had no injury to the jaw or any
hematomas on the body apart from the bullet wound.
The
applicant only learned about the incident on 13 August 1999 when she
met R.K., who had been released. She went to the hospital with
another person and saw that her husband was connected to different
tubes. He was conscious but could not speak. She asked him whether he
had shot himself. Mr Šarišský responded “no”
by moving his head. She repeated the question and received the same
answer from him. Her husband could not hear at all in one ear,
although he had never had any problem with his hearing. He had
bruises all over his body, “below the neck, ... on the right
shoulder, ... on his face and below, underneath his right eye”.
The
applicant visited her husband again on 14 August 1999, accompanied by
two other persons. When asked whether a policeman had shot him, Mr
Šarišský nodded. Mr Šarišský
had bumps on the head and his face was swollen. They wanted to take
pictures of those bruises but the head physician did not allow them
to.
Mr
Šarišský died on 17 August 1999 as a result of
complications caused by the wound. On the same day an investigator
from the Police Regional Investigation Office in Prešov
ordered the examination and autopsy of the body. He instructed two
forensic medical experts to perform an external and internal
examination of the corpse and describe the individual wounds and how
they arose. He ordered them to submit the report within fourteen
days.
The
forensic experts carried out the autopsy on 18 August 1999 but the
autopsy report was not submitted to the investigator until
26 October 1999.
The
report stated that there was a small, visible bruise of 3x2cm on the
mucous membrane of the upper and lower lips in the left corner of the
mouth. The autopsy report also described a torn drum in the left
auditory canal with clear liquid. According to the report, such a
condition could arise as the result of illness or inflammation of the
inner ear, but it could also be caused by a blow with a blunt object.
The
report concluded that Mr Šarišský
had died a violent death, caused by post-traumatic and hemorrhagic
shock induced by a perforating gunshot wound to the abdomen inflicted
by a projectile fired from a police service pistol. The gunshot
ruptured the large intestine, the mesentery of the small intestine,
the inferior vena cava, the lumbar spine and spinal cord. There was
shock after injury resulting from bleeding which, together with the
subsequent complications (including acute inflammation of the soft
tissues of the spinal cord and the brain and a serious defect of
blood coagulation) led to the death of Mr
Šarišský.
According
to the testimonies of his close relatives, Mr Šarišský
did not know how to handle weapons, he had never owned or handled a
gun, and he did not have any record of mental instability.
2.
Ensuing investigation and criminal proceedings against Lieutenant F.
Throughout
the course of the subsequent investigation, Lt. F. offered differing
accounts of the circumstances which preceded Mr Šarišský's
death.
According
to the statements by Lt. F., he sat down on a chair at the table next
to the window in his office, whereas Mr Šarišský
sat down on a chair by the wall. When the questioning resumed, Mr
Šarišský denied the thefts. Allegedly, they
raised their voices. According to Lt. F., he told Mr Šarišský
to write the names of those responsible for the theft on a piece of
paper and left him alone in the office without handcuffing him.
Lt. F. alleged that when he returned to the office, he had
to walk around Mr Šarišský,
who was sitting on a chair with his back to the door. As Lt. F.
passed him, he felt a sudden blow to his right shoulder and fell to
his knees. He heard a click and realised that Mr Šarišský
had cocked the pistol. According to Lt. F., when he stood up and
turned to face Mr Šarišský, he saw the latter
holding his service pistol in his hands, which he aimed at Lt. F.
When Lt. F. asked Mr Šarišský not to do
anything stupid and to give back the weapon, the latter allegedly
pointed the pistol towards himself in the area of the abdomen and,
sitting on the chair, pulled the trigger.
According
to Lt. F., Mr Šarišský
remained in a sitting position on the chair, holding the pistol in
his hand. Lt. F. took it from him and put it on the table. He then
claimed he phoned the operations officer and asked for medical help.
After that, he unloaded the weapon, looked on the floor for the
magazine or ammunition and re-assembled it. He looked at
Mr Šarišský's wound and saw that on the
paper which he had left him was the text “say hello to
Kristína”. He then ran to the operations centre to
repeat the call for the emergency service. Mr Šarišský
remained seated on the chair and when Lt. F. returned to his office,
he carried him down to the vestibule.
The
applicant points out that both in the report where he provided
explanations to his superior on the night of the incident and in a
report drawn up on 13 August 1999 Lt. F. briefly described how the
suspect had pulled his service pistol out of the holster, cocked it
and shot himself in the abdomen. It was only in his later statements
that he mentioned any violent or forceful action by the victim. The
applicant also points out that Lt. F. was approximately 1.90 metres
tall and weighed about 100 kilograms. Mr Šarišský
was considerably smaller.
Moreover, Lt. F. offered an inconsistent account of
how he had walked by Mr Šarišský in the moment
preceding the alleged attack. Lt. F. claimed that Mr. Šarišský
had been sitting with his back to the door but according to the
statement of another police officer, who entered Lt. F.'s office
after hearing the shot, Mr Šarišský was sitting
on a chair facing the door. The Government have contested the
English translation of this police officer's statement, and contend
that in the Slovak version he in fact stated that Mr Šarišský
was sitting with his right side facing the door. During the
first reconstruction of the incident on 8 September 1999, Lt. F. told
the investigator that he had passed on the right side of Mr Šarišský,
but he later said that he had passed between the table and Mr
Šarišský.
Lt. F. claimed that Mr Šarišský
had attacked him from behind, surprising him and simultaneously
pulling his pistol from the holster and cocking it. He could not
remember how Mr Šarišský had held the pistol, or
in which hand, and he gave several accounts of what he did with the
pistol after removing it from the victim's hand.
After
the incident had occurred, a police officer took the pistol of Lt. F.
and placed it in the information officer's room. The investigator
then seized the pistol. A task-force was formed which consisted of a
forensic technician from the Criminal Police Department of the Police
Force District Directorate in Poprad, a Senior Inspector at the
Police Force Circuit Department in Poprad and an Investigator from
the Police Force District Office of Investigation in Poprad. The task
force carried out an on-site inspection on the night of 12 August
1999. Two police officers were present for the inspection.
Starting
at 11.50 p.m., they inspected Lt. F's room. They did not take samples
of gunpowder residue from the hands of Lt. F. The reason given was
that they did not have the proper and necessary materials. The
samples were taken at approximately 2.00 p.m. the next day by an
expert technician from Kosice and no residue was found. Lt. F.
claimed that he had not washed his hands before the samples were
taken. As for Mr Šarišský, the nurse at the
hospital had washed his hands after he underwent the first surgery,
thus rendering the test useless.
On
20 August 1999 an investigator from the Regional Office of
Investigation in Prešov ordered the Criminology and Expert
Opinions Institute of the Police in Bratislava to undertake
dactyloscopy, biology and chemistry test on objects, traces and
samples found during the site inspection. The results of this
examination were all negative. According to the expert opinion of the
Criminology and Expert Opinions Institute in Bratislava which
examined and evaluated the disks from the hands of Mr Šarišský
and Lt. F., no particles coming from firing residue were found. The
dactyloscopy expert did not find any fingerprints on the weapon which
could be evaluated, due to the insufficient number of papillary
lines.
On
6 October 1999 the same institute examined the piece of paper with
the text “say hello to Kristína” and compared the
writing with the writing of Lt. F. and of Mr Šarišský.
The experts concluded that the text had most probably not been
written by Lt. F., whereas that part of the text which read “say
hello to” had most probably been written by Mr Šarišský.
They could not adequately evaluate the word “Kristína”
because it was written in capital letters and they did not have
sufficient samples of capital letters from the deceased Mr Šarišský.
The applicant submits that the investigation file which her
representative examined at the Poprad's courthouse did not contain
this document. An independent handwriting test was therefore
impossible.
On
8 September 1999, between 7.10 p.m. and 9.15 p.m., the Police
Regional Investigation Office in Prešov conducted a
reconstitution of the events in the office of Lt. F. The experts were
informed of the location of the entry and exit wounds and the
location where the bullet hit the chair. The reconstruction
documented possible alternatives for the shooting of Mr Šarišský,
with Lt. F. and Mr Šarišský in different
positions, and with each one firing the fatal shot. The ballistic
expert present at the reconstruction concluded that the injury to Mr
Šarišský was “most probably”
self-inflicted as the direction of the shot was from below upwards
and from the right to the left.
On
the same night, from 9.20 p.m until 9.40 p.m, an experiment was
performed with the aim of clarifying how the weapon was pulled and
respective time intervals. During the reconstruction Lt. F. stated
that his shirt had been tucked in under the belt on which he had the
holster containing the weapon. According to the report, the
investigation experiment measured the time intervals for three
different ways of pushing and simultaneously drawing the weapon from
Lt. F.'s holster, pushing with the hand, pushing with the forearm and
with the left part of the body and the hand. These three alternatives
were repeated twice.
On
12 November 1999 a police investigator from the Regional
Investigation Office in Prešov accused Lt. F. of the offence
of injury to health. He was questioned immediately afterwards and
pleaded not guilty.
On
18 November 1999 Lt. F., through his counsel, submitted the grounds
and his reasons for pleading not guilty. In particular, he stated
that there had been nothing to lead him to the conclusion that Mr
Šarišský would injure himself. He also stated
his weapon had been properly secured in the holster which he had had
on his belt under his shirt. He alleged that the deceased
unexpectedly, suddenly, and with the use of force had pulled his
weapon out of the case.
The
applicant points out that in this testimony Lt. F. altered his
previous statements regarding the non-violent behaviour of Mr
Šarišský and the way he was carrying the gun.
According to this testimony, the pistol had been covered by the shirt
so it could not be seen, whereas during the September reconstruction
of the events he had stated that his shirt had been tucked in under
the belt on which he had the case with the weapon.
At
9.00 p.m. on 4 May 2000, in view of the new testimony given by
Lt. F., the Regional Investigation Office in Prešov and
technicians from the Criminal Police Department in Poprad conducted
another experiment with the aim of clarifying the manner of drawing
the weapon. During the experiment, when the accused was carrying the
pistol covered by his shirt in accordance with Lt. F.'s testimony of
22 November 1999, the assistant did not succeed in any one of three
attempts to pull the weapon.
On
11 May 2000, following the completion of the investigation, the
applicant and her counsel perused the entire investigation file. In
the record they confirmed that they had been given sufficient time
for the perusal, that they proposed no further investigation be
carried out, and that they had no comments on the documents included
in the file.
On
29 May 2000 a public prosecutor indicted Lt. F. with the offence of
causing injury to health under Section 224(1) and (2) of the Criminal
Code as a result of his negligence in the course of duty. In the
indictment the public prosecutor stated, inter alia, that Lt.
F.'s testimony that the pistol was on his belt covered by the shirt
was not true, because if that had been the case, Mr Šarišský
could not have pulled it away from him.
On
18 October 2000 a judge of the District Court in Poprad issued a
penal order under Section 314e of the Code of Criminal Procedure. In
it he convicted Lt. F. of injury to health caused by negligence in
the course of duty within the meaning of Section 224(1) and (2) of
the Criminal Code. The penal order stated that Lt. F. had failed to
secure his service weapon contrary to the relevant regulations and
that, as a result, Mr Šarišský had managed to
draw the weapon from the case and to inflict with it a lethal injury
on himself.
Lt.
F. was sentenced to one year's imprisonment, suspended for
a two and-a-half-year probationary period. The penal order
of 18 October 2000 was based solely on the evidence
submitted by the prosecutor and it gave no account of the criminal
investigation. The judge referred the injured parties, including the
applicant, to civil proceedings for damages.
Neither
the public prosecutor nor Lt. F. challenged the penal order which
thus became final.
Lt.
F. committed suicide on 23 January 2001.
The
applicant had participated in the criminal proceedings as a victim
and sought an award of damages. As she did not indicate the quantum
of damages sought, as required by Article 43 (2) of the Code of
Criminal Procedure, the judge advised her of the possibility of
recovering damages through a civil action.
On
27 September 2000 the applicant's counsel lodged a claim for damages
with the Ministry of Justice. On 22 January 2001 the claim was
rejected on the ground that the Ministry of Justice lacked
jurisdiction to hold a preliminary hearing. Pursuant to section 9 of
the Act No. 58/1969, only claims for damages resulting from wrongful
decisions had to be lodged with the Ministry of Justice. In the
present case, the victim suffered damage as a result of the incorrect
procedure by a police officer and her action therefore had to be
filed directly with a court of law.
3. The
applicant and her daughter's claims for damages
On
28 May 2001 the applicant, through her lawyer, filed an action for
damages to the Bratislava III District Court. She claimed
45,000 Slovakian korunas (SKK) in compensation for damage of
pecuniary nature and SKK 5 million for damage of
non-pecuniary nature. As her submissions did not meet the formal
requirements set out in Article 79 § 1 of the Code of Civil
Procedure, in its ruling of 23 October 2001 the court gave the
applicant 15 days to complement her action failing which the
proceedings would be discontinued. The applicant did not comply with
the request. The District Court therefore discontinued the
proceedings on 17 April 2002.
On
9 August 2002 the applicant filed an action against the Slovak
Republic under Articles 11 et seq. of the Civil Code. She
claimed compensation from the State (represented by the Prešov
Regional Directorate of the Police Corps) for non-pecuniary damage in
the amount of SKK 900,000 alleging that, as a result of the wrongful
conduct of Lt. F., there had been an interference with her husband's
physical integrity which had resulted in his death. She relied on the
Poprad District Court's penal order of 18 October 2000.
On
7 August 2003 the Poprad District Court dismissed the action.
On 10 January 2005 the court of appeal quashed the
first-instance decision.
On
6 February 2006 the Poprad District Court admitted the applicant's
daughter, Ms Kristína Šarišská,
as plaintiff.
52. On
6 March 2006 the applicant withdrew her claim.
On
31 May 2006 the District Court discontinued the proceedings in
respect of the applicant. It dismissed the claim of the applicant's
daughter. It had not been shown that the daughter, who had been
ten months old when her father had died and had lived with her
grandmother, had suffered any interference with her personal rights
warranting protection under Articles 11 et seq. of the Civil
Code. In addition, the court established that the defendant, as
indicated by the applicant, lacked standing in the case.
The applicant and her daughter should have directly sued the
Prešov Regional Directorate of the
Police Corps. Finally, the claim of the applicant's daughter had been
filed outside the statutory time-limit. The right claimed by her had
therefore lapsed.
On
20 September 2007 the Prešov Regional
Court upheld the first instance judgment. It held that any
non-pecuniary damage which the plaintiff had suffered resulted from
the fatal injury which, as it had been established in the course of
the criminal proceedings, her father had inflicted on himself. There
had therefore been no interference with the plaintiff's personal
rights as guaranteed by Articles 11 et seq. of the Civil Code.
The Regional Court did not accept the first-instance finding
according to which (i) the defendant lacked standing in the case and
(ii) the right claimed had become statute-barred.
4. Constitutional proceedings
On
18 January 2008 the applicant's daughter, represented by the
applicant, lodged a complaint with the Constitutional Court. The
plaintiff relied, inter alia, on Articles 2, 3, 8 and 13 of
the Convention and referred to the above proceedings leading to the
Prešov Regional Court's judgment of
20 September 2007.
On
5 November 2008 the Constitutional Court dismissed the complaint as
being manifestly ill-founded. It found no arbitrariness or
unlawfulness in the proceedings complained of. With reference to its
case-law the Constitutional Court further held that, in the
absence of any shortcomings in the proceedings under examination, the
ordinary courts involved could not be held liable for any breach of
the plaintiff's material rights under Articles 2, 3 and 8 of the
Convention. The Regional Court had examined the plaintiff's appeal;
the latter had therefore had an effective remedy at her disposal as
required by Article 13 of the Convention.
B. Reports of alleged police brutality in Slovakia in
respect of persons of Roma origin
1. United Nations Special Rapporteur on Contemporary Forms of
Racism, Racial Discrimination, Xenophobia and Related Intolerance
(Annual Report, E/CN.4/1999)
57. The
report indicates, inter
alia, that human
rights monitoring bodies observed that the police exerted pressure on
the victims of police brutality to withdraw their complaints.
2. Conclusions and Recommendations
of the Committee Against Torture (11 May 2001)
The
report refers to allegations of instances of police participation in
attacks against Roma, to the failure on the part of the authorities
to carry out prompt, impartial and thorough investigations into
allegations of such actions or to prosecute and punish those
responsible as well as to allegations that the law enforcement
officials ill-treated detainees during detention and in police
custody, particularly in lock-ups and police cells.
3. The European Commission against Racism and Intolerance (ECRI):
Second Report on Slovakia adopted on 10 December 1999
The
report noted that:
“...the problem of police mistreatment of members
of minority groups, particularly Roma, is of particular concern to
ECRI...Victims are reportedly very unwilling to come forward through
fear of reprisals and for lack of confidence in the possibilities for
redress. ECRI stresses that any incidence of police brutality against
minority groups should not be tolerated by the authorities, and that
this should be made clear by a firm and public condemnation from
politicians and police leaders. Steps should be taken to investigate
all alleged mispractices and punish offenders: an independent
investigatory body should carry out all such investigations...
At the level of prosecuting authorities and judges, it
is noted that very few cases of racially motivated crime reach the
courts at all, or, if they do, they are generally prosecuted as
ordinary crimes.”
4. US Department of State 1999 Country Reports on Human Rights
Practices – Slovak Republic
The
report noted that:
“In January police officers reportedly raided a
Roma settlement in Kosice, injuring 16 Roma...In October, during a
raid on a Romani community in Zehra, police allegedly used excessive
force as they detained 9 Roma on charges of hooliganism. During the
incident, the police shot a 13 year old Romani boy with a plastic
bullet, and he was hospitalised as a result of his injury. Police
reportedly use pressure and threats to discourage Roma from pressing
charges of police brutality. Human rights monitors continued to
charge that police...used their device of countercharges to pressure
Roma victims of police brutality to drop their complaints...”
5. US Department of State 2000 Country Reports on Human Rights
Practices – Slovak Republic
The
report observed that:
“Police reportedly use pressure and threats to
discourage Roma from pressing charges of police brutality. In 1998
and 1999, Roma in the town of Vráble lodged complaints against
a local law enforcement officer ... for allegedly attacking teenage
Romani boys. The Ministry of the Interior investigated the case and
found [the officer] not guilty ... In March two Roma from the
eastern town of Michalovce voluntarily came to the police station for
questioning. They were allegedly beaten by some police officers. The
victims suffered several injuries including broken legs, hands and
ribs. When questioned about the incident, the police first claimed
that the action was justified but later admitted that it was
unwarranted.”
6. International Helsinki Federation for Human Rights: Human
Rights in the OSCE Region: The Balkans, the Caucasus, Europe, Central
Asia and North America, Report 2001
The
report indicated that:
“The most common human rights violation committed
by the police was the disproportionate use of coercive methods, which
often resulted in injuries to the arrestee and the need for medical
care. Such abuse, however, was almost impossible to prove since there
was no independent control commission for complaints of ill treatment
and misconduct by law enforcement officials.”
7. International Helsinki Federation Annual Report 1999
This
report observed that:
“In recent years, although racist violence against
Roma in Slovakia has increased, effective prosecution and punishment
have been rare. Also the police have resorted to abuse. On 27 October
police officers assaulted Roma inhabitants of the village of
Hermanovce, eastern Slovakia. Police entered the homes of two Roma
families and beat two Roma youths, handcuffed them, forced them into
the trunk of a car, and drove them to the police station ... The
police offered no explanation to the detainees or their families; nor
did they show arrest or search warrants to justify their actions.
At the police station the two youths were allegedly beaten with
truncheons and kicked. They were interrogated and shown diverse
items, and pressed to falsely admit to stealing some of them. They
were later released the same day, apparently without having been
charged with any crime. Doctors who examined them documented bruises
consistent with a beating. At no point were the two detainees advised
on their rights.”
II. RELEVANT DOMESTIC LAW
Pursuant
to Article 166 (1) of the Code of Criminal Procedure, where the
investigator considers the investigation into a case to be completed
and where the results of such investigation justify the filing of an
indictment, the investigator shall give the accused, the victim, as
well as their counsels and/or authorised representatives sufficient
time for perusing the case file and, if necessary, for proposing any
additional investigation be carried out.
Article
224(1) and (2) of the Criminal Code provides that a person who by
negligence and in violation of his or her duties causes a serious
injury to health or the death of another person shall be punished
with a prison sentence of between six months and five years or with a
fine.
Under
Article 314e (1) of the Code of Criminal Procedure, a single judge
may issue a criminal order, without a public hearing, where the facts
are reliably proved by the evidence submitted.
Pursuant
to Article 314g (1) and (3) of the Code of Criminal Procedure, a
penal order may only be challenged by the public prosecutor, the
accused person or those who can file an appeal in the latter's
favour. Where such an objection is filed, the judge shall hold a
hearing in the case.
Article
314g (2) provides that a third party who joins the criminal
proceedings with a claim for damages can file an objection to a penal
order only in case and to the extent that compensation is thereby
granted. When a third party files such an objection, the judge shall
quash the relevant part of the penal order and refer the person
concerned to proceedings before a civil court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicant complained that the death of her husband in police custody
and the subsequent failure of the Slovakian authorities to undertake
a thorough and effective investigation into the circumstances
surrounding his death amounted to a violation of Article 2 of the
Convention, which provides as follows:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as
inflicted in contravention of this article when it results from the
use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
The parties' submissions
The
applicant submitted first, that her husband was deprived of his right
to life as a result of his intentional shooting in police custody,
and secondly, that the State authorities failed adequately to protect
his right to life by undertaking a through and effective
investigation into the circumstances surrounding his death.
In
relation to the first submission, she relied on the principle,
established by the Court, that where an individual is taken into
police custody in good health but is later found dead, it is
incumbent on the State to provide a plausible explanation of the
events leading to his death, failing which the authorities must be
held responsible under Article 2 of the Convention (Velikova v.
Bulgaria, no. 41488/98, § 70, ECHR 2000 VI). Moreover,
where the events in issue lie wholly or in large part within the
exclusive knowledge of the authorities, the burden of proof may be
regarded as resting with the authorities to provide a satisfactory
and convincing explanation (Hugh Jordan v. the United Kingdom,
no. 24746/94, § 103, ECHR 2001 III (extracts)).
In
the present case, Mr Šarišský was taken into
custody in good health. It was not disputed that he received his
injuries, including the fatal wound, in police custody. While in
hospital he repeatedly told the applicant and other relatives that he
did not shoot himself, and their testimonies unequivocally stated
that he had never owned or used a gun. In the circumstances, the
applicant submitted that the investigating authorities did not fulfil
their obligation to provide a plausible explanation for his death.
Rather, they continued to rely on a highly implausible theory which
did not withstand scrutiny: namely, that Mr Šarišský
had forcibly taken the gun from Lt. F. and shot himself.
The
applicant further contended that the investigation conducted by the
authorities was plagued by omissions and inconsistencies and,
consequently, the State had failed to undertake a thorough and
effective investigation into her husband's death. In particular, she
argued that it was unacceptable that the forensic technician was not
equipped with lifting pads for conducting a gun residue test when
tasked with securing a crime scene involving bodily injury caused by
a firearm. However, she contended that pivotal evidence could still
have been secured had Lt. F.'s hands been bagged until the
appropriate gunpowder residue tests were taken.
She
submitted that the investigators failed properly to secure
fingerprint tests; that police officers were never asked to explain
how and when her husband received the serious injuries on his face
and left ear; that the prosecution gave full credit to the testimony
by the police officers involved in the incident, flatly denying the
use of force against the victim; that the investigation failed to
resolve the differences in the testimony of police officers regarding
the position the victim was found in after the shooting; and finally,
that there was a failure to resolve the apparent contradictions in
the testimonies given by Lt. F.
The
Government submitted that the theory that Mr Šarišský
committed suicide was not highly implausible. In particular, they
submitted that on 17 August 1999 an autopsy was ordered to determine
the manner of death, the angle and range of the handgun with which
the victim was shot, and any other facts or circumstances relevant to
the finding of an objective explanation for the death. On 20 August
1999 a forensic analysis of fingerprints, biological and chemical
samples and a handwritten note was commissioned. This was followed by
a reconstruction on 8 September 1999 to clarify the circumstances
leading to the death of Mr Šarišský. Although
the testimony of Lt. F. was considered during the reconstruction, it
relied primarily on the objective evidence such as the position of
the entry and exit wounds and the gunshot damage to the chair.
Following the reconstruction the investigators concluded that in all
probability Mr Šarišský had shot himself. The
investigations conducted, and the evidence that Mr Šarišský
previously had been aggressive and attempted to self-harm while in
police custody, refuted the applicant's allegation that suicide was a
highly implausible theory and that the investigators had relied
uncritically on the testimony of Lt. F.
With
regard to the adequacy of the investigation, the Government submitted
that a task-force from the District Criminal Police Department in
Poprad was dispatched to the scene immediately after the shooting of
the applicant's husband. They inspected the scene and a forensic
technician secured the evidence. The forensic technician did not take
samples of gunpowder residue from the hands of Lt. F. because he did
not have lifting pads to secure such evidence. The Government
contended that at that time lifting pads were not standard issue for
criminal investigators. In any case, the applicant's husband was not
at the crime scene when the forensic technician arrived as he had
already been transported to hospital. The Government could not be
held responsible for the fact that hospital staff washed his hands on
admission. Moreover, although Lt. F.'s hands were not bagged, the
Government submitted that he remained under the constant supervision
of a police guard until samples of gunpowder residue were taken the
following day by an expert technician from the Košice
Institute of Forensic Science.
The
Government further submitted that the firearm was confiscated
immediately for the purpose of conducting forensic tests but no
classifiable or identifiable fingerprints could be lifted from it. In
addition, following the death and autopsy of the applicant's husband,
additional experts were appointed to inspect biological, chemical,
graphological, mechanical, fingerprint and ballistic traces.
Reconstructions and experiments were carried out to clarify the
incident and potential witnesses were interrogated.
The
Government denied that there had been any contradictions in the
testimonies of the police officers. Indeed, any discrepancy in the
police officers' statements could be accounted for by the exclusion
of the words “right side” from the English translation.
The
Government also denied that the investigators had relied exclusively
and uncritically on the testimony of Lt. F. and had never sought to
explore an alternative explanation for the fatal injuries sustained
by the applicant's husband. The investigators collected all
accessible evidence in order to verify the testimonies of Lt. F. and
the other witnesses; reconstructions were carried out to investigate
various possible alternatives and the authorities concluded, on the
basis of the available evidence, that Mr Šarišský's
injuries were self-inflicted. The injuries to Mr Šarišský's
face and left ear were considered irrelevant as they had no relation
to the cause of death.
Finally,
the Government submitted that the applicant had access to the
investigation. Under domestic law, it was open to her to make motions
concerning evidence-taking or submission of supplementary evidence,
comment on all evidence taken and consult and review the case file.
Her representative participated in parts of the criminal proceedings
and raised no objection to their conduct. Furthermore, the applicant
was entitled to make motions for further investigation.
The
Government therefore argued that there was an effective, impartial,
thorough and careful investigation into the death of Mr Šarišský
which led to the person responsible, Lt. F., being identified and
punished.
B. The Court's assessment
I. The death of Mr Šarišský
(a) General
principles
82. The
Court reiterates that Article 2, which safeguards the right to life
and sets out the circumstances when deprivation of life may be
justified, ranks as one of the most fundamental provisions in the
Convention, to which no derogation is permitted. The circumstances in
which the deprivation of life may be justified must therefore be
strictly construed. Moreover, the object and purpose of the
Convention as an instrument for the protection of individuals also
requires that Article 2 be interpreted and applied so as to make its
safeguards practical and effective (McCann
and Others v. the United Kingdom,
27 September 1995, §§ 146 – 147, Series A no. 324).
83. In
light of the importance of the protection afforded by Article 2, the
Court must subject deprivations of life to the most careful scrutiny,
taking into consideration not only the actions of State agents but
also the surrounding circumstances.
84. In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (Avsar
v Turkey, no.
25657/94, § 282, ECHR 2001). Such proof may, however, follow
from the co-existence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (Ireland
v. the United Kingdom,
18 January 1978, § 161, Series A no. 25). Where the events
in issue lie wholly, or in large part, within the exclusive knowledge
of the authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries and death occurring during detention. Indeed, the burden of
proof may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (Salman
v. Turkey [GC],
no. 21986/93, § 99, ECHR 2000 VII).
85. Consequently,
where an individual is taken into police custody in good health and
is found to be injured on release, it is incumbent on the State to
provide a plausible explanation of how those injuries were caused
(see, for example, Selmouni
v. France [GC], no.
25803/94, § 87, ECHR 1999 V) and to produce evidence
casting doubt on the veracity of the victim's allegations,
particularly if those allegations are backed up by medical reports
(Abdülsamet
Yaman v. Turkey,
no. 32446/96, § 43, 2 November 2004). The authorities'
obligation to account for an individual in custody is particularly
stringent where that individual dies (Salman v. Turkey,
cited above, at § 99; Keenan v. the United Kingdom,
no. 27229/95, § 91, ECHR 2001 III).
86. Moreover,
in addition to the obligation on States to account for injuries or
deaths in police custody, the Court recalls that the State is also
under a positive obligation to take all reasonable measures to ensure
that the health and well-being of persons in detention are adequately
secured by, among other things, providing them with the requisite
medical assistance (see, mutatis mutandis, Aerts
v. Belgium,
judgment of 30 July 1998, Reports 1998-V, p. 1966, §§
64 et seq., and Kudła
v. Poland [GC],
no. 30210/96, § 94, ECHR 2000-XI) and taking
reasonable measures to minimise a known suicide risk (Keenan
v. the United Kingdom,
no. 27229/95, § 97, ECHR 2001 III).
(b) Application to
the present case
87. Mr
Šarišský was twenty-one years old and in good
health when he was taken into custody at approximately 8 p.m. on 12
August 1999. Several hours later he was rushed to hospital with a
gunshot wound to his abdomen and injuries to his neck, right
shoulder, face and ear. The fatal shot was fired from Lt. F.'s police
service pistol while Mr Šarišský was alone with
Lt. F. in his office. Mr Šarišský and Lt. F.
clearly had previous dealings with each other (see, for example,
paragraph 11), and the evidence would suggest that Lt. F. volunteered
to interrogate Mr Šarišský while he was off
duty, without first obtaining the permission of his commanding
officer.
88. In
the course of the investigation into his death, at least three
accounts were given of how Mr Šarišský was shot.
Lt. F. indicated that Mr Šarišský had taken
his gun and shot himself. Mr Šarišský allegedly
told the investigator that Lt. F. had given him the gun and he had
shot himself. The applicant, on the other hand, submitted that her
husband told her that Lt. F. had shot him. In carrying out the
reconstruction on 8 September 1999, the ballistics experts concluded
that Mr Šarišský “most probably”
shot himself. Further reconstructions were carried out to determine
how Mr Šarišský was able to forcibly remove
Lt. F.'s service pistol. No attempt appears to have been made,
however, to investigate the allegation made by Mr Šarišský
himself, namely that Lt. F. gave him the firearm. Moreover, the Court
also observes that no explanation was given for the inconsistencies
in the different statements provided by Lt. F. in the course of the
domestic proceedings.
89. Consequently,
the Court has grave concerns both about the circumstances surrounding
Mr Šarišský's death and the extent to which the
authorities have provided “a satisfactory and convincing
explanation” (see Salman
v. Turkey, cited
above, § 99). The inherent improbability of the theory that,
while in police custody and while temporarily left alone during his
interrogation by Lt. F, Mr. Šarišský would
compose a suicide note and on Lt.F's return seize his pistol from his
belt and use it to shoot himself in the abdomen gives serious cause
to doubt that the authorities have discharged the burden imposed on
them under the Convention. However, the Court does not consider that
it is necessary to reach any final determination of this issue. Even
if the Court were to accept that Mr Šarišský
committed suicide as alleged, it notes that the obligation to protect
the health and well-being of persons in detention clearly encompasses
an obligation to take reasonable measures to protect them from
harming themselves (Keenan
v. the United Kingdom,
cited above, § 97). Although there is insufficient evidence to
enable the Court to find that the authorities either knew or ought to
have known that Mr Šarišský was a suicide risk
on the night of his death, the Court notes that there are certain
basic precautions which police officers and prison officers should be
expected to take in all cases in order to minimise any potential
risk. First, the Court would observe that compelling reasons must be
given as to why the interrogation of a suspect is entrusted to an
armed police officer. For the Court, the facts of the present case
disclose no justification whatsoever for allowing Lt. F. to remain in
possession of his firearm during the interrogation of Mr Šarišský,
a young man who had been arrested on suspicion of bicycle theft.
Secondly, at the time of Mr Šarišský's death
there were regulations in force which required police officers to
secure their service weapons in order to avoid any “undesired
consequences”. The domestic courts held that Lt. F's
failure properly to secure his service weapon amounted to negligence
which resulted in the death of Mr Šarišský.
Consequently, the Court finds that even if Mr Šarišský
committed suicide in the manner described by the Government and the
investigative authorities, the authorities were in violation of their
obligation to take reasonable measures to protect his health and
well-being while he was in police custody.
90. There
has accordingly been a violation of Article 2 of the Convention under
its substantive limb.
The adequacy of the investigation
(a) General principles
The
obligation to protect the right to life under Article 2 of the
Convention, read in conjunction with the State's general duty under
Article 1 of the Convention to “secure to everyone within
[its] jurisdiction the rights and freedoms defined in [the]
Convention”, also requires by implication that there should be
some form of effective official investigation when individuals have
been killed as a result of the use of force (see, mutatis
mutandis, McCann and Others v. the United Kingdom,
judgment of 27 September 1995, Series A no. 324, p. 49, § 161,
and Kaya v. Turkey, judgment of 19 February 1998, Reports
1998-I, p. 324, § 86). The essential purpose of such
investigation is to secure the effective implementation of the
domestic laws which protect the right to life and, in those cases
involving State agents or bodies, to ensure their accountability for
deaths occurring under their responsibility. What form of
investigation will achieve those purposes may vary in different
circumstances. Whatever mode is employed, however, the authorities
must act of their own motion, once the matter has come to their
attention. They cannot leave it to the initiative of the next-of-kin
either to lodge a formal complaint or to take responsibility for the
conduct of any investigative procedures (see, for example, mutatis
mutandis, İlhan v. Turkey [GC], no. 22277/93, §
63, ECHR 2000-VII).
For
an investigation into an alleged unlawful killing by State agents to
be effective, it may generally be regarded as necessary for the
persons responsible for and carrying out the investigation to be
independent from those implicated in the events (see, for example,
Ramsahai and Others v. the Netherlands [GC], no.
52391/99, § 325, ECHR 2007 ..., Güleç v. Turkey,
judgment of 27 July 1998, Reports 1998-IV, p. 1733, §§ 81-82,
and Oğur v. Turkey [GC], no. 21954/93, §§
91-92,
ECHR 1999-III). This means not only a lack of
hierarchical or institutional connection but also a practical
independence (see, for example, Ergi v. Turkey,
judgment of 28 July 1998, Reports 1998 IV, pp. 1778-79,
§§ 83-84, and the Northern Irish judgments, for
example, Hugh Jordan v. the United Kingdom, no. 24746/94,
§ 120, and Kelly and Others v. the United Kingdom,
no. 30054/96, § 114, both of 4 May 2001).
The
investigation must also be effective in the sense that it is capable
of leading to the identification and punishment of those responsible
(see Oğur, cited above, § 88). This is not an
obligation of result, but of means. The authorities must have taken
the reasonable steps available to them to secure the evidence
concerning the incident, including, inter alia, eyewitness
testimony, forensic evidence and, where appropriate, an autopsy
providing a complete and accurate record of injury and an objective
analysis of clinical findings, including the cause of death (see, for
example, Salman, cited above, § 106; Tanrıkulu v.
Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; and Gül
v. Turkey, no. 22676/93, § 89, 14 December 2000).
Any deficiency in the investigation which undermines its ability to
establish the cause of death or the person or persons responsible
will risk falling foul of this standard (see the Northern Irish
judgments concerning the inability of inquests to compel the
security-force witnesses directly involved in the use of lethal
force, for example, Hugh Jordan, cited above, § 127).
A
requirement of promptness and reasonable expedition is implicit in
this context (see Yaşa v. Turkey, judgment of 2 September
1998, Reports 1998-VI, pp. 2439-40, §§ 102-04;
Çakıcı v. Turkey [GC], no. 23657/94,
§§ 80, 87 and 106, ECHR 1999-IV; Tanrıkulu,
cited above, § 109; and Mahmut Kaya v. Turkey, no.
22535/93, §§ 106-07,
ECHR 2000-III). While there may be
obstacles or difficulties which prevent progress in an investigation
in a particular situation, a prompt response by the authorities in
investigating a use of lethal force may generally be regarded as
essential in maintaining public confidence in their adherence to the
rule of law and in preventing any appearance of collusion in or
tolerance of unlawful acts (see, for example, Hugh Jordan,
cited above, §§ 108 and 136-40).
For
the same reasons, there must be a sufficient element of public
scrutiny of the investigation or its results to secure accountability
in practice as well as in theory. The degree of public scrutiny
required may well vary from case to case. In all cases, however, the
next-of-kin of the victim must be involved in the procedure to the
extent necessary to safeguard his or her legitimate interests (see
Güleç, cited above, p. 1733, § 82; Oğur,
cited above, § 92; Gül, cited above, § 93; and
the Northern Irish judgments, for example, McKerr v. the United
Kingdom, no. 28883/95, § 148, ECHR 2001 III).
(b) Application to the present case
The
Court observes that following the shooting of Mr Šarišský,
Lt. F. immediately called for the emergency services. An
investigation task-force was formed and called promptly to the police
station to inspect the scene of the shooting. The inspection began at
11.50 p.m., very shortly after the incident.
Nevertheless,
the Court finds that there were a number of deficiencies in the
criminal investigation which undermined its ability to establish who
was responsible for Mr Šarišský's death.
(i) Independence of the police investigation
The
criminal investigation was supervised by police officers from the
Department of Supervision and Inspection at the Ministry of the
Interior. The Court observes that these police officers were under
the command of the Ministry of the Interior. Even if the Court were
to assume that these officers were sufficiently independent for the
purposes of Article 2 of the Convention, it is concerned that they
did not commence their investigation until 13 August 1999, when an
officer interviewed the wounded Mr Šarišský
in hospital. The task-force that was formed immediately after the
shooting was comprised of police officers from Poprad, which was the
district in which Lt. F. was based. It was these officers who
conducted the initial forensic examination of the scene. Moreover,
after the Department of Supervision and Inspection took over,
officers from Poprad continued to be involved in the investigation.
In particular, it is clear from the record of the reconstruction
conducted on 4 May 2000 that the technicians carrying out the
experiments were from the Criminal Police Department in Poprad, which
was Lt. F.'s department. Further investigations were also carried out
by the Regional Investigation Office in Prešov.
The
Court recalls the extremely high standard established by the Grand
Chamber in Ramsahai v the Netherlands (cited above, §§
333 -341). Whilst the Court acknowledges that the local police cannot
remain passive until independent investigators arrive, in Ramsahai
v the Netherlands the Grand Chamber indicated that in the absence
of any special circumstances, immediate action by local police should
not go beyond securing the area in question. In the present case, the
task-force examined the crime scene, photo-documented it and
recovered fingerprints and ballistic, biological and material
evidence. They did not, however, have the necessary technical
equipment to test Lt. F.'s hands for gunshot residue, and instead
permitted him to return home, although they submitted that he
remained under the constant supervision of a police guard. No further
details have been provided concerning the identity of this guard or
the extent of the supervision. However, as police officers from the
Department of Supervision and Inspection at the Ministry of the
Interior did not arrive until the following day, it must be assumed
that the guard was also from Lt. F.'s department in Poprad.
The
Court is also concerned about the continued involvement of
technicians from Lt. F.'s department in Poprad in the investigation,
most notably during the reconstruction carried out on 4 May 2000.
Their involvement diminished the investigation's appearance of
independence and this could not be remedied by the subsequent
involvement of the Department of Supervision and Inspection. The
Court therefore finds that the investigation was not sufficiently
independent.
(iii) Adequacy of the investigation
Moreover,
the Court finds that the failure of the investigators to give serious
consideration to Mr Šarišský's claim that he
shot himself after Lt. F. handed him the gun amounted to a serious
deficiency in the Šarišský's death. The
allegation that Lt. F. voluntarily gave Mr Šarišský
his gun amounts to a much more serious allegation against Lt. F than
that of causing injury to health by negligence, and yet the
investigators do not appear to have considered it, preferring instead
to rely on Lt. F.'s claim that Mr Šarišský
forcibly took the weapon from him.
The
Court further observes that in a case such as the present, where
there were no independent eyewitnesses to the incident, the taking of
forensic samples was of critical importance in establishing who was
responsible for Mr Šarišský's death (Ramsahai
v the Netherlands, cited above, § 331). If the investigators
had brought the necessary equipment to the police station, samples of
gunpowder residue could have been taken from Lt. F.'s hands in the
immediate aftermath of the shooting. If such samples had been taken,
it might have been possible either to exclude or confirm that he
pulled the trigger. Instead, samples were not taken until the
following day. Although the Government submitted that Lt. F. remained
under the supervision of a police guard until the samples were taken,
the Court has concerns about the independence of the guard, who was
most likely a police officer from Lt. F.'s department (see paragraph
98). Consequently, the result of the gunpowder residue test cannot be
relied on. Although a ballistics test later confirmed that Mr
Šarišský “most probably” shot
himself, if conducted properly the gunpowder residue test could have
been conclusive. Thus, there was a failure by the investigators to
take reasonable steps to secure evidence concerning the incident
which in turn undermined the ability of the investigation to
determine beyond any doubt who was responsible for Mr Šarišský's
death.
Finally,
the Court observes that very little attention appears to have
been paid to the applicant's claim that her husband had injuries to
his face, shoulder and ear, even after the autopsy confirmed the
presence of these injuries. The Government have subsequently
indicated that these injuries were ignored because they were not
relevant to determining the cause of death. They were, however,
relevant to determining whether Mr Šarišský was
ill-treated by police officers either during his arrest or in police
custody, which in turn is relevant both to an investigation into a
potential violation of Article 2 of the Convention and to a separate
allegation under Article 3. The Court therefore finds that the
failure to investigate the applicant's claim that her husband was
ill-treated by police officers prior to the shooting amounted to a
serious shortcoming in the criminal investigation and prevented the
authorities from obtaining a clear and accurate picture of the events
leading to Mr Šarišský's death.
In
light of the above, the Court concludes that no meaningful
investigation was conducted at the domestic level capable of
establishing the true facts surrounding the death of Mr Šarišský.
It follows that there has also been a violation of the procedural
limb of Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained under Article 3 of the Convention that her
husband was ill-treated in police custody and that the authorities
failed to carry out an adequate investigation into that
ill-treatment. Article 3 of the Convention provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Having
considered the applicant's complaints under Article 2 of the
Convention, the Court finds that it is not necessary to make a
separate finding under Article 3.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained that she had not had an effective remedy for her
complaints under Articles 2 and 3 within the meaning of Article 13 of
the Convention, which provides as follows:
“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.”
108. First,
the applicant submitted that the authorities failed to carry out a
competent and thorough investigation of the violation of Article 2,
which constituted a separate and independent violation of her right
to an effective remedy.
Secondly,
the applicant submitted that under Slovak law no
effective remedy existed in the event that the prosecution and
investigation authorities did not fulfil their responsibility to
carry out a thorough and effective investigation of alleged
violations of rights protected by the Convention. She further
submitted that civil damages did not amount to an effective remedy
where there had been a death at the hands of State agents (see, for
example, Aksoy v. Turkey, 18 December 1996, Reports of
Judgments and Decisions 1996-VI).
The
Court notes that, despite her claim that civil damages could not be
regarded as an effective remedy where a death had occurred at the
hands of State agents, the applicant instituted civil proceedings
which were discounted on the grounds of the procedural shortcomings
in her pleadings. The Court finds that the essence of the applicant's
complaints under Article 13 relates to the alleged inadequacy of the
investigation which took place and the absence of any remedy to
ensure there was an effective investigation into her husband's death
such as to enable her effectively to pursue a civil action for
damages arising out of the death. As such, the Court considers that
the complaints under Article 13 are a restatement of the applicant's
complaints under Article 2. It does not, therefore, consider it
necessary to make a separate finding under Article 13 of the
Convention.
IV. ALLEGED
VIOLATION OF ARTICLE 14 OF THE CONVENTION
The
applicant complained that her rights, and the rights of her deceased
husband, under Articles 2, 3 and 13 of the Convention were violated
in conjunction with Article 14 on grounds of ethnic origin.
Article 14 of the Convention provides as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. The parties' submissions
The
applicant submitted that her husband's death was caused by an agent
of the State and the investigation which followed was plagued by
severe deficiencies and discrepancies and, as a result, it failed to
establish the cause of his death. She submitted that the fact that
her husband was a Romani man, coupled with the legacy of widespread
and systematic abuse of Roma in police custody, created an obligation
on the State to investigate a possible racist motive behind his
death. The State failed to do so in violation of their procedural
obligations under Article 14 of the Convention.
The
Government contested that argument. They submitted that there was no
evidence to suggest that in the present case Mr Šarišský
was subjected to significantly harsher treatment by the police on
account of his Roma ethnicity.
B. The Court's assessment
1. Substantive aspect
Discrimination is treating differently, without an
objective and reasonable justification, persons in relevantly similar
situations (see Willis v. the United Kingdom, no.
36042/97, § 48, ECHR 2002-IV). Discrimination on account of,
inter alia, a person's ethnic origin is a form of racial
discrimination. Racial discrimination is a particularly invidious
kind of discrimination and, in view of its perilous consequences,
requires from the authorities special vigilance and a vigorous
reaction. It is for this reason that the authorities must use all
available means to combat racism, thereby reinforcing democracy's
vision of a society in which diversity is not perceived as a threat
but as a source of enrichment (Nachova and Others
v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145,
ECHR 2005-...; and Timishev v. Russia, nos. 55762/00 and
55974/00, § 56, ECHR 2005-...). The Court has also
held that no difference in treatment which is based exclusively or to
a decisive extent on a person's ethnic origin is capable of being
objectively justified in a contemporary democratic society built on
the principles of pluralism and respect for different cultures
(Timishev, cited above, § 58).
As
to the burden of proof in this sphere, the Court has established that
once the applicant has shown a difference in treatment, it is for the
Government to show that it was justified (see, among other
authorities, Chassagnou and Others v. France [GC], nos.
25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999-III;
and Timishev, cited above, § 57).
As regards the question of what constitutes prima
facie evidence capable of shifting the burden of proof on to the
respondent State, the Court stated in Nachova and Others v.
Bulgaria that in proceedings before it there are no procedural
barriers to the admissibility of evidence or pre-determined formulae
for its assessment. The Court adopts the conclusions that are, in its
view, supported by the free evaluation of all evidence, including
such inferences as may flow from the facts and the parties'
submissions. According to its established case-law, proof may follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. Moreover,
the level of persuasion necessary for reaching a particular
conclusion and, in this connection, the distribution of the burden of
proof are intrinsically linked to the specificity of the facts, the
nature of the allegation made and the Convention right at stake.
Turning
to the facts of the present case, the Court considers that whilst Lt.
F.'s conduct during the applicant's detention calls for serious
criticism, that behaviour is of itself an insufficient basis for
concluding that his conduct was racially motivated. Further, in so
far as the applicant has relied on general information about police
abuse of Roma in Slovakia, the Court cannot lose sight of the fact
that its sole concern is to ascertain whether in the case at hand the
treatment inflicted on the applicants was motivated by racism (see
Nachova and Others v. Bulgaria, cited above, § 155).
Lastly, the Court does not consider that the failure of the
authorities to carry out an effective investigation into the alleged
racist motive for the incident should shift the burden of proof to
the respondent Government with regard to the alleged violation of
Article 14 in conjunction with the substantive aspect of Article 2 of
the Convention. The question of the authorities' compliance with
their procedural obligation under Article 14 is a separate issue, to
which the Court will revert below (see Nachova and Others v.
Bulgaria, cited above, § 157).
Consequently,
the Court finds that there has been no violation of Article 14 of the
Convention taken in conjunction with Article 2 in its substantive
aspect.
2. Procedural aspect
The Court has held that when investigating violent incidents and, in
particular, deaths at the hands of State agents, State authorities
have the additional duty to take all reasonable steps to unmask any
racist motive and to establish whether or not ethnic hatred or
prejudice may have played a role in the events. Failing to do so and
treating racially induced violence and brutality on an equal footing
with cases that have no racist overtones would be to turn a blind eye
to the specific nature of acts that are particularly destructive of
fundamental rights. A failure to make a distinction in the way in
which situations that are essentially different are handled may
constitute unjustified treatment irreconcilable with Article 14 of
the Convention (see, mutatis mutandis, Thlimmenos v.
Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). In order to
maintain public confidence in their law enforcement machinery,
Contracting States must ensure that in the investigation of incidents
involving the use of force a distinction is made both in their legal
systems and in practice between cases of excessive use of force and
of racist killing (Nachova and Others v. Bulgaria [GC],
nos. 43577/98 and 43579/98, § 146, ECHR 2005 VII).
Admittedly,
proving racial motivation will often be extremely difficult in
practice. The respondent State's obligation to investigate possible
racist overtones to a violent act is an obligation to use best
endeavours and not absolute (see, mutatis mutandis, Shanaghan
v. the United Kingdom, no. 37715/97, § 90, ECHR
2001-III, setting out the same standard with regard to the general
obligation to investigate). The authorities must do what is
reasonable in the circumstances to collect and secure the evidence,
explore all practical means of discovering the truth and deliver
fully reasoned, impartial and objective decisions, without omitting
suspicious facts that may be indicative of a racially induced
violence.
In
the present case, the Court has already found that the Slovakian
authorities violated Article 2 of the Convention in that they failed
to conduct a meaningful investigation into the death of Mr Šarišský
(see paragraphs 94 –103 above). It therefore considers
that it must examine separately the complaint that there was also a
failure to investigate a possible causal link between alleged racist
attitudes and his death.
The
Court notes with concern the contemporaneous reports documented at
paragraphs 57 et seq. above which relate to allegations of
police brutality towards Roma in Slovakia. In respect of persons of
Roma origin, it would not exclude the possibility that in a
particular case the existence of independent evidence of a systemic
problem could, in the absence of any other evidence, be sufficient to
alert the authorities to the possible existence of a racist motive.
However, in the present case the Court is not persuaded that the
objective evidence is sufficiently strong in itself to suggest the
existence of such a motive. It also notes
that, unlike the situation obtaining in Nachova and Others v.
Bulgaria, the authorities did not have before them any concrete
information capable of suggesting that there had been any racial
motive behind the applicant's arrest, detention, or, ultimately, his
death (Vasil Sashov Petrov v.
Bulgaria, no. 63106/00, § 72, 10 June
2010). Moreover, there is no indication that the applicant
made allegations of racial bias at any point during the investigation
(compare with Karagiannopoulos v. Greece, no. 27850/03, §
78, 21 June 2007; Turan Cakir v. Belgium, no.
44256/06, § 80, 10 March 2009; Beganović v. Croatia,
no. 46423/06, §
97, ECHR 2009 ... (extracts); and Sashov and
Others v. Bulgaria, no. 14383/03,
§ 84, 7 January 2010).
For
these reasons, the Court does not consider that the authorities had
before them information that was sufficient to bring into play their
obligation to investigate possible racist motives on the part of the
officers. It follows that there has been no violation of Article 14
of the Convention taken in conjunction with Article 2 in that
respect.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The
applicant claimed 45,000 euros (EUR) in respect of
non-pecuniary
damages: EUR 30,000 in respect of the victim's suffering and EUR
15,000 in her personal capacity. The applicant contended that her
claims were in line with the standards set by the Court in the cases
of Akkoç v. Turkey, nos. 22947/93 and 22948/93,
ECHR 2000 X and Nachova and Others v. Bulgaria (cited
above).
The
applicant also claimed EUR 289,225 in respect of pecuniary damages.
She submitted that although her husband was unemployed at the time of
his death, he was young and in good health and therefore could have
secured employment. She submitted that his death had impacted her
financial situation and would continue to do so for the forty-one
remaining years during which her husband would have been able to
secure wages from employment. The claim for EUR 289,225 therefore
represented past, present and future wage loss based on the age of
death of the victim until the official retirement age in Slovakia (62
years).
The
Government contended that the applicant's claim for
non-pecuniary
damage was manifestly overstated.
The
Government submitted that the applicant's claim for lost earnings was
unfounded as her husband was unemployed at the date of his death.
Moreover, they submitted that the applicant had the opportunity to
claim for pecuniary loss during the criminal proceedings against Lt.
F. and/or in civil proceedings but her claims were struck out due to
procedural irregularities.
In
respect of the applicant's claim for non-pecuniary damage, the Court
recalls that it has found a violation of Article 2 of the Convention.
It has also found that the authorities failed to provide the
applicant with an effective remedy, contrary to Article 13. In the
circumstances, having regard to awards made in comparable cases, the
Court awards the applicant the full amount claimed.
In
respect of the applicant's claim for pecuniary loss, the Court
observes that she has not submitted any details of her late husband's
previous employment record or, as she has since remarried, of her
current husband's employment situation. It is therefore impossible
for the Court properly to assess the financial impact of her
husband's death. Consequently, the Court finds that the applicant has
not substantiated her claim for pecuniary loss.
B. Costs and expenses
The
applicant claims EUR 10,962 in respect of legal costs and expenses.
The
Government submit that this claim is unreasonably high.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the applicants the sum of EUR 8,000
for the proceedings before the Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Holds
unanimously that there has been a violation of Article 2 of the
Convention on account of the authorities' failure to safeguard the
right to life of Mr Šarišský;
Holds unanimously
that there has been a violation of Article 2 of the Convention on
account of the authorities' failure to conduct an effective
investigation into the circumstances surrounding Mr Šarišský's
death;
Holds
unanimously that it is not necessary to make a separate finding in
respect of the complaints under Article 3 of the Convention;
Holds
unanimously that it is not necessary to make a separate finding in
respect of the complaints under Article 13 of the Convention;
Holds by six
votes to one that there has been no violation of Article 14 of the
Convention taken in conjunction with Article 2 in respect of its
substantive or procedural head;
6. Holds 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 45,000
(forty-five thousand euros) in respect of non-pecuniary damage and
EUR 8,000 (eight thousand euros) in respect of costs and expenses,
plus any tax that may be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
7. Dismisses unanimously the remainder of the applicant's
claim for just satisfaction.
Done in English, and notified in writing on 14 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the following separate opinions are annexed
to this judgment:
(a) concurring
opinion of Judge Bratza, joined by Judge David Thór Björgvinsson;
(b) partly
dissenting opinion of Judge David Thór Björgvinsson.
N.B.
T.L.E.
CONCURRING OPINION OF JUDGE BRATZA, JOINED BY JUDGE
DAVÍD THÓR BJÖRGVINSSON
I can
share the view of the Chamber that, on the assumption that
Mr Šarišský committed suicide while in
police custody, Article 2 of the Convention was violated on account
of the authorities' failure to take adequate steps to safeguard his
right to life. I would, however, have gone further and found that the
substantive aspect of Article 2 was violated on the grounds that Mr
Šarišský was wrongfully deprived of his life
while in police custody, the authorities having provided no
satisfactory and convincing explanation as to how he came by his
death.
The
applicable principles, when an individual is taken into police
custody in good health and dies while he is detained or is found to
be injured on his release, are well established by the Court's
case-law. The burden of proof lies on the authorities to provide a
plausible explanation as to how the death occurred or the injuries
were sustained. A particularly stringent obligation lies on the
authorities to account for deaths in custody and strong presumptions
of fact will arise in respect of fatalities occurring during
detention (Salman v. Turkey [GC], no. 21986/93, ECHR
2000-VII).
In
the judgment, the Court has expressed its grave concerns about the
circumstances surrounding Mr Šarišský's death:
the judgment correctly notes the inherent improbability of the theory
that, while in police custody and temporarily left alone during
interrogation by Lt. F., Mr Šarišský would
compose a suicide note and, on Lt. F.'s return, seize his pistol from
his belt and use it to shoot himself in the abdomen. However, while
finding that the implausibility of the story gives serious cause to
doubt whether the authorities have discharged the burden imposed on
them under the Convention, the majority of the Chamber have not found
it necessary to make any final determination of this question.
In
view of the obvious gravity of the case, I have, on the contrary,
found it necessary to decide not merely whether the authorities
failed adequately to safeguard Mr Šarišský's
life but whether they were responsible for taking his life. In my
view, the authorities have patently failed to discharge the burden
imposed on them.
The
theory that the applicant committed suicide in custody, which was
accepted by the prosecuting authorities, is not only inherently
improbable but is rendered the more implausible by a number of
elements of the case.
(i)
Mr Šarišský allegedly acted in a very aggressive
manner when arrested and taken to the police station and when
questioned by the two police officers (H. and K.), who were on duty
at the time of his arrest, in the presence of two other officers (G.
and J.). According to Officer G., Mr Šarišský
remained handcuffed during his interrogation. However, according to
Sgt. H., Mr Šarišský was not handcuffed and kept
getting up from his chair, banging his head against the wall and
threatening to jump from the window.
Lt.
F., who was not on duty at the time, joined the other officers when
Mr Šarišský was already signing the record
of interrogation and, according to Sgt. H., Mr Šarišský
and Lt. F., who knew each other, began to argue and shout at each
other. Although not yet on duty, Lt. F. apparently sought and
obtained permission from his superior to take over the interrogation
of Mr Šarišský. According to Lt. F.'s own
evidence, Mr Šarišský continued to be aggressive
and to make threats on his way to Lt. F.'s office. It appears that Mr
Šarišský was there initially handcuffed to a
radiator. However, at some stage during the interrogation, it is
claimed that the handcuffs were removed and that Lt. F. told him to
write down on a piece of paper the names of those responsible for the
suspected theft which was the subject of the investigation. Despite
the alleged aggressive behaviour of Mr Šarišský
and his threats of self-harm, Lt. F. claimed that he left him alone
in the office, without handcuffs and unguarded.
(ii)
According to Lt. F.'s evidence, when he returned to the office and
walked round Mr Šarišský, who was sitting on a
chair with his back to the door, he felt a sudden blow to his right
shoulder and fell to his knees. He then realised that Mr
Šarišský had succeeded in seizing his service
pistol and was pointing it at him. When Lt. F. told him not to be
stupid and to hand the weapon over, Mr Šarišský
instead turned the weapon on himself and shot himself in the stomach.
Lt.
F.'s various accounts of these events are not only improbable, they
are also contradictory. During the first reconstruction of the
incident on 8 September 2001, Lt. F. told the investigator that
he had passed on the right side of Mr Šarišský
but later claimed that he had passed between the table and the chair
on which Mr Šarišský was seated. In the initial
reconstruction Lt. F. further claimed that his shirt had been tucked
in under the belt on which he had the holster containing the weapon;
subsequently he claimed that his weapon had been properly secured in
the holster which he had on his belt under his shirt and that Mr
Šarišský had probably pulled the weapon from its
holster – a story which was not only shown to be impossible in
a further experiment carried out but which was found to be untrue in
the criminal proceedings against Lt. F.
(iii)
The suicide note allegedly left by Mr Šarišský,
which does not appear to have been in the investigation file when
examined by the applicant's representative, poses more questions than
it answers. The evidence of the handwriting experts went no
further than to say that the words “say hello to” in the
note had “most probably” not been written by Lt. F.
and had “most probably” been written by Mr Šarišský.
They were unable to evaluate the word “Kristína”
since it was written in capital letters and they did not have
sufficient samples of capital letters for Mr Šarišský.
Apart from the inconclusive nature of this evidence, there is no
explanation as to why, if written by Mr. Šarišský,
the word “Kristína”, in contrast to the other
words in the note, should have been written in capital letters.
(iv)
The suicide theory is not, in my view, enhanced by the various
accounts allegedly given by Mr Šarišský himself
when taken to hospital. Witness U. (the admission's nurse at the
hospital) claimed that Mr Šarišský was fully
conscious when admitted and said that he had shot himself in the
abdomen and that he had told Lt. F. that, if he were to give him his
gun, he would shoot himself. The evidence of Capt. T., who
interviewed Mr Šarišský at noon on 13
August 2001, was that he could only respond to her questions by
nodding his head. Mr Šarišský is said to have
nodded his disagreement when asked whether the police officer had
shot him and his agreement when asked whether he had shot himself.
However, he also apparently nodded his disagreement when asked
whether he had seized the weapon from Lt. F. and his agreement when
asked whether the officer had handed him the weapon after he had
asked for it. The latter responses are not only implausible but are
diametrically contrary to Lt. F.'s own account as to how the suicide
occurred. They are also inconsistent with the evidence of the
applicant herself, when she visited Mr Šarišský
in hospital on the same day. According to her, Mr Šarišský
responded “no” by moving his head when asked whether he
had shot himself.
The
reliability of Mr Šarišský's own alleged account
that he had shot himself is further undermined by the apparently
conflicting evidence as to his ability to communicate. Capt. T.
claimed that Mr Šarišský was fully conscious and
that his answers were clear; however, in disputing the accuracy of
the applicant's own evidence, reliance is placed by the Government on
the evidence of the Chief of Staff of the Anaesthetic and
Resuscitation Department of the hospital to the effect that Mr
Šarišský was kept at all times under the
influence of medication, which was likely to impair his ability
properly to communicate.
I
have borne in mind the fact that, in addition to the accounts given
by Lt. F. and allegedly given by Mr Šarišský
himself as to what had occurred, there was other material relied on
by the prosecutor in concluding that Mr Šarišský
had committed suicide, notably the evidence of the ballistics expert
present at the reconstruction to the effect that the injury to
Mr Šarišský was “most probably”
self-inflicted, as the trajectory of the bullet was from below the
abdomen upwards and from the right to the left. However, although
important, this evidence was inconclusive. Moreover, the
investigation as a whole suffered from the several deficiencies
identified in the judgment and was not such as to dispel the serious
doubts surrounding the circumstances leading to the death of Mr
Šarišský. In my view those doubts have not been
satisfactorily answered and the Government have not discharged the
burden laid on them of showing that Mr Šarišský
took his own life or of providing another plausible explanation for
his death. For these reasons, I would find that Mr Šarišský
was wrongfully deprived of his life while in police custody in breach
of the substantive requirements of Article 2 of the Convention.
PARTLY DISSENTING OPINION OF JUDGE
DAVID THÓR BJÖRGVINSSON
I
agree with the findings in relation to violations of Articles 2 and
13 of the Convention. However, I prefer to find violation of the
substantive head of Article 2 on the basis of the reasoning advanced
in Judge Bratza's concurring opinion, which
I have joined. I also agree that it is not necessary to make a
separate finding in respect of the complaints under Article 3.
Furthermore, I can agree that there are no sufficient grounds for
establishing a breach of the substantive aspect of Article 14 of the
Convention.
However, I do not agree that there has been no violation of the
procedural head of Article 14 taken in conjunction with Article 2 of
the Convention.
These are my reasons:
Mr.
L'ubomír Šarišský was of Roma origin. He
was 21 years old when he was shot dead in police custody. This tragic
event took place on 12 August 1999.
I
note that paragraphs 57–63 of the judgment refer to numerous
international reports of alleged police brutality in respect of
persons of Roma origin in Slovakia. The reports referred to, which
are all from the years 1999 – 2001, clearly show that police
brutality in respect of persons of Roma origin was, at the relevant
time, systemic, widespread and a serious problem in Slovakia. Still,
the majority, in paragraph 123, albeit concerned about these reports,
comes to the conclusion that it is not persuaded that the objective
evidence is sufficiently strong in itself to suggest the existence of
a racist motive.
I
disagree. There is, in my view, enough objective evidence to suggest
the existence of a hostile racist motive. Furthermore, the persistent
criticism from international bodies manifested in these reports
should have alerted the authorities to the possible existence of such
a motive. Thus, the authorities were, in my view, under the
obligation to conduct an investigation as to whether racist motives
played a part in Mr. L'ubomír Šarišský's
death. Since no such investigation was carried out I conclude that
there has been a violation of the procedural head of Article 14 in
conjunction with Article 2 of the Convention.
