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Cite as: [2011] ECHR 2293
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FIRST SECTION
DECISION
Application no. 54845/10
Predrag BARNIC
against Austria
The European Court of Human Rights (First Section), sitting on 13 December 2011 as a Chamber composed of:
Nina
Vajić,
President,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre
Sicilianos,
Erik
Møse,
judges,
and
Søren Nielsen, Section
Registrar,
Having regard to the above application lodged on 24 September 2010,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court.
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Predrag Barnic, is a Serbian national who was born in 1977 and lives in Vienna. His application was lodged on 24 September 2010. He was represented before the Court by Mr T. Neugschwendtner, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. The Government of the Republic of Serbia were given notice of the application, and they informed the Court on 21 December 2010 that they would not exercise their right to intervene in the present case.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant came to Austria in February 2006. On 14 December 2006 he was taken into custody on suspicion of drug trafficking.
On 7 September 2007 an Austrian court convicted the applicant of offences under the Drugs Act (Suchtmittelgesetz) and of attempted use of forged documents, and sentenced him to three years’ imprisonment.
It appears that on 7 November 2007 an exclusion order of unlimited duration (unbefristetes Rückkehrverbot) was issued against the applicant.
1. The extradition proceedings
In October 2007 the Serbian Ministry of Justice requested the applicant’s extradition to Serbia for the execution of two sentences - one from March 2003 for a robbery, and another from November 2003 for severe bodily harm - and for further criminal proceedings against him on the basis of an indictment of 30 October 2002 issued by the District Public Prosecutor’s office in S. relating to charges of dealing in illegal drugs.
On 24 January 2008 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) declared the extradition unlawful.
On the basis of country reports from the asylum file (see below), which included a report by the United Kingdom Home Office (Operational Guidance Note, Republic of Serbia including Kosovo, dated February 2007), a report by the German Federal Foreign Office (Report on asylum issues regarding Serbia and Montenegro without Kosovo, dated February 2006) and by the United States Department of State (Serbia and Montenegro, Country Reports on Human Rights Practices 2005, dated March 2006), the Regional Criminal Court found that whereas the human rights situation in Serbia had substantially improved since 2005, ill-treatment by the police could not be ruled out - in particular in prisons and during pre-trial detention. Furthermore, investigations into such ill-treatment were slow and ineffective. It also noted that statements made under duress and torture were still accepted as evidence in court proceedings.
From the medical reports submitted during the asylum proceedings the court found it credible that the applicant had suffered ill-treatment by the police in Serbia in 2002. The documentation showed that the applicant had been treated for months for new and acute injuries he had received during police questioning. He still bore two 10-cm-long scars on his right knee, 40-cm-long scars on his right and left thigh and a 15-cm-long scar on his left lower leg, which were consistent with his version of what had happened. Furthermore, the applicant’s complaints of ill-treatment had only been dealt with in Serbia after a long delay, and the proceedings had finally been discontinued. Lastly, the Serbian Ministry of Justice had not commented on the events described by the applicant, although it had been explicitly requested to do so by the court.
Thus, the Regional Criminal Court found that even though the general conditions for extradition had been met, the applicant had been subjected to ill-treatment by the police during his detention in Serbia in 2002 and would continue to be at risk of such treatment. Thus, an extradition would constitute a violation not only of Article 3, but also of the guarantees of Article 6 of the Convention.
2. The asylum proceedings
On 1 June 2007 the applicant lodged a request for asylum.
He claimed that he had been severely ill-treated and tortured by Serbian police in 2002 in order to obtain his confession to a robbery he had not committed. He had been arrested and taken to another village, where he had been tortured for six hours by police officers. He had been shot in the leg, beaten and suffered a spinal injury. Owing to severe bleeding, he was then taken to hospital. He was kept in custody for eight months.
In March 2003 the applicant was convicted and sentenced to four years’ imprisonment. On account of his poor health he was released on the day of his conviction. He subsequently underwent surgery. In May 2003 he was again taken into custody for a further eight months. He was released in February 2004.
The applicant stated that he had encountered continuing problems with the chief of police in his home town of S., from the year 2000 onwards, when he had refused to pay for protection for one of his companies. With regard to the events in 2002, the applicant had lodged a complaint of ill-treatment with the public prosecutor and the Helsinki Committee for Human Rights. The applicant then tried to continue living in his home town in Serbia, but maintained that he had been continually harassed by the police, and had finally left in November 2005 and travelled to Austria via Croatia and Italy. He claimed that he would be subjected to ill-treatment should he be returned to Serbia.
On 11 July 2007 the Federal Asylum Authority (Bundesasylamt) refused the applicant’s asylum request and ordered his expulsion to Serbia. It found that an isolated incident of ill-treatment by the police did not suffice to establish a substantiated risk of persecution or ill-treatment as required for an asylum claim to be successful. In that context it referred to the period the applicant had stayed in Serbia after the attack, the time that had elapsed in Austria before he had lodged a request for asylum there, and the time which had elapsed since the event itself. On the basis of country reports about Serbia it considered that there was no longer any real risk of systematic and manifest ill-treatment by police in Serbia.
The applicant lodged an appeal against that decision.
On 9 December 2009 the Asylum Court (Asylgerichtshof) dismissed the applicant’s appeal in the asylum proceedings.
It noted that according to the information obtained from the Austrian Embassy in Serbia, the chief of the police force in S., M.K., had been removed (“abgelöst”) from his post in 2006 and apparently was now working as a lawyer. It further found that the applicant’s statement about the events in Serbia in 2002 whilst he was in police custody and detention were credible, but concluded that owing to the time which had elapsed since the events and the general improvement of the security situation in Serbia the applicant was no longer at risk of ill-treatment.
With regard to the general human rights situation in Serbia, the Asylum Court referred to reports by the European Commission (Serbia and Montenegro, 2005 Progress Report, dated 9 November 2005, and Serbia, Progress Report 2007, dated November 2007) and to two reports by the United States State Department (Serbia and Montenegro, Country Report on Human Rights Practices 2005 and 2007, dated March 2006 and 2008, respectively). It cited a report by the German Federal Foreign Office that noted a decrease in systematic police violence since 2000. However, especially in general and police detention, human rights violations could not be excluded, although they were directed not against political adversaries, but against criminal suspects. In some of those cases police officers had been suspended from active duty, and in a number of cases Serbian courts had awarded damages to victims of ill-treatment (Report on asylum issues regarding Serbia and Montenegro, dated August 2008). On the basis of the report of the Council of Europe Commissioner for Human Rights, Thomas Hammerberg, on his visit to Serbia in October 2008 (dated March 2009), the Asylum Court referred to the introduction of a legal framework for complaint procedures in cases of alleged police assault. Lastly, the Asylum Court stated that the length of time which had passed between the events in 2002 and the asylum proceedings had led to the dismissal of the asylum request.
With regard to the decision of the Vienna Regional Criminal Court to declare the extradition unlawful, it found that after almost two more years following that decision the situation in Serbia had further improved. Individual cases of police brutality could not change the overall picture of a much better security situation. It referred again to the country reports on which it had based its evaluation and noted that a Secretariat for Internal Affairs at the Ministry for Interior Affairs, and commissions in every region had been introduced to deal with complaints against the police. Lastly, the Asylum Court observed that it was not bound by the decision of the Vienna Regional Criminal Court.
The applicant lodged a complaint against that decision with the Constitutional Court (Verfassungsgerichtshof). On 22 February 2010 the Constitutional Court refused to deal with the applicant’s complaint. That decision was served on the applicant’s counsel on 24 March 2010.
On 24 September 2010 the applicant lodged the present application with the Court and requested that an interim measure be granted. On 5 October 2010 the Court requested the Austrian Government to stay the applicant’s expulsion to Serbia until further notice, pursuant to Rule 39 of the Rules of the Court.
B. Information on Serbia
1. Report on the Council of Europe Commissioner for Human Rights’ visit to Serbia in 2008
The Council of Europe Commissioner for Human Rights visited Serbia from 13 to 17 October 2008 for an assessment of the overall human rights situation, and published his report on that visit on 11 March 2009 (CommDH(2009)8). With regard to ill-treatment by the police, he found that various sources had indicated that police ill-treatment had decreased in Serbia since the European Committee on the Prevention of Torture had visited in 2004. While it now appeared that allegations of police violence were the exception rather than the rule, police violence had not yet been completely eradicated. NGOs and representatives from the legal community had pointed out that many people still failed to report incidents of violence for fear of retaliation by the police (paragraph 66).
An Internal Control Sector had been established as a separate department within the Ministry of the Interior by the new police act in 2005 to deal with complaints regarding police misconduct. Furthermore, police misconduct was monitored by special commissions established in each of the twenty-seven regions of the Republic. These commissions consisted of three members, namely a police officer, a representative of the Sector and a local citizen. From 2003 until 2007, the Sector had opened 150 formal investigations against police officers, compared with 350 in 2008 alone. In the Commissioner’s opinion, the police complaints mechanism was still in its infancy, and its impact in practice could not yet be gauged (see paragraphs 71-74).
2. Report on the visit of the European Committee on the Prevention of Torture to Serbia in 2007
The European Committee on the Prevention of Torture (“CPT”) visited Serbia from 19 to 29 November 2007 and published its report on 14 January 2009 (CPT/Inf(2009)1). It stated that the number of allegations of ill-treatment by the police heard by the CPT’s delegation in the course of the 2007 visit was lower, and the ill-treatment alleged less severe, than during the first of the Committee’s periodic visits, in 2004. However, the delegation did receive a number of allegations of physical ill-treatment (consisting of punches, kicks, blows with a truncheon, blows with a thick book or with a wet, rolled newspaper, and handcuffing to fixed objects in a hyperextended position) during questioning by police officers, with the aim of obtaining confessions or other information (see paragraph 13).
The CPT welcomed the legislative and other measures taken to combat ill-treatment by the police. However, it concluded from the information gathered throughout its visit that continued determined action was needed to combat ill-treatment by the police (paragraph 16). It recommended the systematic and ongoing training of the police, independent agents to investigate any complaints of misconduct, the introduction of procedural rules for judges and prosecutors dealing with complaints of ill-treatment by the police, and thorough record-keeping of medical examinations of newly-arrived remand prisoners (pages 15 et seq.).
3. The 2010 Progress Report of the European Commission on Serbia
The Serbia 2010 Progress Report of the European Commission (Com(2010)660), published on 9 November 2010 within the framework of the Enlargement Strategy 2010-2011, noted with regard to civil and political rights that there had been only a small amount of progress in further improving the prevention of torture, ill-treatment and the fight against impunity. Police detention procedures were of great concern, as well as the lack of any internal and independent external oversight mechanisms. Additional efforts aimed at preventing any further cases of torture and ill-treatment were needed. The Deputy Ombudsman in charge of the protection of people deprived of their liberty was operational but still not fully effective (see page 13). The report concluded by stating that overall, the constitutional framework providing for respect for civil and political rights was largely in place. However, full implementation and enforcement remained to be ensured. Further action by the authorities in combating violence of all types was needed (page 14).
4. Reports by the Helsinki Committee for Human Rights in Serbia
In 2009 the Helsinki Committee for Human Rights in Serbia published its Annual Report, Serbia 2008: Human Rights, Democracy and Violence. In its concluding remarks in the chapter titled “Police: Dynamics without radical change”, the Committee stated that during 2008 no further significant steps for reform had been taken with regard to the police in Serbia; that the adoption of a new police act, which was required for the continuation of reforms, had not been announced; that the police still very often abused their authority, and that there were numerous cases of police torture, especially in the interior of Serbia (see page 201).
In its report for the year 2009, published in 2010, the Helsinki Committee for Human Rights in Serbia acknowledged that the Ministry of the Interior of the Republic of Serbia had achieved outstanding results and that it could be stated that 2009 had been the most successful year for the Serbian police since 2000. However, in the context of police work there were still many abuse cases involving police officers. Furthermore, the Ministry of Internal Affairs was withholding information of public importance and police work was not sufficiently transparent. It emphasised that future reform efforts would require the training of police personnel, especially with regard to human rights standards (pages 95-96).
In its annual report for 2010, published in 2011, the Helsinki Committee for Human Rights in Serbia concluded its chapter on the police by stating that although the number of criminal offences and abuses committed by police officers had been significantly lower compared to recent years, it was still very high. The fact that the number of criminal offences with elements of violence committed by police officers was about 15% higher gave rise to particular concern. The report emphasised that the continuation of reforms and the positive trends in 2010 would give rise to expectations that the Serbian police would be able to provide full security to all citizens of Serbia in the forthcoming period (page 222).
COMPLAINTS
THE LAW
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government asserted that the Austrian asylum authorities had thoroughly examined the applicant’s claim of a real and individual risk of being subjected to treatment contrary to Article 3 of the Convention. Their assessment had been based on comprehensive country reports by reputable governmental and non-governmental institutions, which contained information on the current political, human rights, asylum and expulsion-relevant situation. Furthermore, the Asylum Court had carried out specific investigations in Serbia in November 2008 by way of the Austrian Embassy in Serbia and Montenegro. The Government contended that that information had shown a clear improvement in the human rights situation in Serbia in the period in question and referred in particular to the institutional bodies which had been set up to monitor police misconduct and the procedures put in place for use in the event of such misconduct.
The applicant stated that in view of the extradition request of the Serbian Government, he would be taken into detention if returned to Serbia and would thus be in a vulnerable position with regard to reprisals by the local police. The sole fact that M.K. was no longer chief of police in S. could not dispel the real risk that he would suffer ill-treatment upon return. M.K. had been a leading officer in S. for a long time and could still be expected to have considerable influence on State authorities in the region. Lastly, the applicant asserted that the asylum authorities’ decision to expel him to Serbia had been a de facto circumvention of the Regional Criminal Court’s decision not to extradite him to Serbia. In view of that latter decision, the applicant alleged that the Asylum Court had not sufficiently examined the individual risks involved in his return to Serbia.
The Court reiterates that Contracting States have the right to control the entry, residence and removal of aliens. In addition, neither the Convention nor its Protocols confer the right to political asylum. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see Chahal v. the United Kingdom, 15 November 1996, §§ 73-74, Reports of Judgments and Decisions 1996 V; Ahmed v. Austria, 17 December 1996, §§ 38-39, Reports of Judgments and Decisions 1996 VI; and Saadi v. Italy [GC], no. 37201/06, §§ 124-125, 28 February 2008).
With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 107, Series A no. 215). However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Chahal, cited above, § 86 and Saadi, cited above, § 133). This situation typically arises when, as in the present case, deportation or extradition is delayed as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 69, ECHR 2005 I).
As regards Serbia’s general human rights situation the Court notes that it has implemented extensive reforms since 2000 towards creating a legal and constitutional framework for the protection of human rights, and creating complaints mechanisms against police misconduct. The special Internal Control Sector department and commissions in individual regions were set up by the reform act of 2005. The Court further refers to the reports of the Helsinki Committee of Human Rights in Serbia, which underlined the positive results of police reform in the year 2009. Finally, both the Council of Europe Commissioner for Human Rights and the CPT acknowledged a decrease in the number of complaints of police abuse in detention during their visits in 2007 and 2008. Overall, the Court detects a clear and ongoing improvement in respect of abuse and ill-treatment by the Serbian police, especially with regard to the introduction of complaints bodies and procedures. The Court further observes that approximately nine years have passed since the ill-treatment the applicant suffered in 2002. In these circumstances the applicant’s arguments alleging a real and individual risk of ill-treatment upon return to Serbia seem unsubstantiated.
Turning to the applicant’s arguments, the Court attaches weight to the fact that, according to the Asylum Court’s investigation, M.K., the former chief of police in S., is no longer an active member of the police force. The Court notes in this context that the applicant, while claiming that M.K. might still have considerable influence on State authorities in the region, does not provide substantiated arguments in that regard. In any event, the Court considers that the fact that M.K. has been removed from active police work serves as an indication that the applicant’s individual risk of reprisals on return to Serbia has abated.
With regard to the applicant’s contention that he would be in a particularly vulnerable position as a detainee upon return to Serbia, the Court finds, in view of the institutional and procedural developments in the context of complaints possibilities in Serbia, and the unanimous tenor of the reports consulted that rule out systematic police violence in detention facilities, that the argument does not demonstrate a real and individual risk that the applicant would be subjected to ill-treatment upon return to Serbia.
Finally, the applicant complains of the two conflicting decisions of the Austrian authorities - namely that the Regional Criminal Court refused to grant his extradition, whereas the Asylum Court allowed for his expulsion to Serbia. The Court, while looking at the last decision rendered by the Austrian authorities, allowing the applicant’s expulsion to Serbia, is satisfied that the Asylum Court conducted a thorough and rigorous examination of his claims under Article 3 of the Convention. With regard to the reports the Asylum Court used to validate its assessment of the change of circumstances in Serbia, not only since the events in 2002, but also in the course of the passing of approximately two years since the Regional Criminal Court’s decision, the Court finds that it took care to obtain and to evaluate updated information. Furthermore, the Asylum Court requested specific and individual information as concerns the current whereabouts of M.K., former chief of police in S. The Asylum Court thus, acknowledging the ill-treatment the applicant suffered in 2002 and taking his claim seriously, made a considerable effort to investigate the particular circumstances surrounding his return to Serbia.
In these circumstances, the Court finds that it has not been established that there are substantial grounds for believing that the applicant would face a real risk of being subjected to treatment contrary to Article 3 of the Convention if returned to Serbia. The Court further attaches particular importance to the fact that the case concerns expulsion to a High Contracting Party to the European Convention on Human Rights, which has undertaken to secure the fundamental rights guaranteed under this provision (see Tomic v. the United Kingdom (dec.), no. 17837/03, 14 October 2003; Hukić v. Sweden (dec.), no. 17416/05, 27 September 2005; and Harutioenyan v. the Netherlands (dec.), no. 43700/07, 1 September 2009).
In those circumstances the Court finds that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court notes that the applicant has not substantiated his complaint that he could not expect fair criminal proceedings upon return to Serbia.
Therefore, the Court considers that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren Nielsen Nina Vajić
Registrar President