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Cite as: [2012] ECHR 141

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SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40485/08
by Radmila PETROVIĆ
against Serbia

The European Court of Human Rights (Second Section), sitting on 4 January 2012 as a Chamber composed of:

Françoise Tulkens, President,
Dragoljub Popović,
Isabelle Berro-Lefèvre,
András Sajó,
Guido Raimondi,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,

Having regard to the above application lodged on 1 August 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Radmila Petrović, is a Serbian national who was born in 1950 and lives in Belgrade. The applicant’s son, Mr Dejan Petrović (“D.P.”), was born in 1973 and died on 15 February 2002. The present application concerns his death.

A. The circumstances of the case

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

1. Events surrounding the death of the applicant’s son

At about 9.30 p.m. on 16 January 2002 certain police officers of the Vračar Police Department of the Belgrade Police (OUP Vračar; hereinafter “the Vračar Police Department”) came to the applicant’s home and took D.P. into custody on suspicion of having committed aggravated robbery. He was kept in the police station overnight.

The following morning at around 9 a.m., the applicant’s home was searched by two male and one female police officers looking for a supposedly hidden sum of money (700 euros (EUR)) from the robbery. As they failed to find any money, two of them left the house and, soon thereafter, came back together with D.P., requesting him to disclose where he had hidden the money. After a further unsuccessful search, they left the house at around 11 a.m. The applicant’s son was allegedly visibly distressed and very pale, and his mouth was yellowish. On the way out, he turned to his mother and said “Call a lawyer, I have done nothing, they will kill me”.

At about noon, police officers informed the applicant’s family that D.P. had broken a window and jumped from the second floor of the police premises, and that he had been transferred to the emergency unit of the Serbian Clinical Centre in Belgrade.

Upon their arrival at the emergency unit, the applicant and her husband (D.P.’s father) were informed that the hospital had admitted an unidentified and severely injured patient in a comatose state, who had jumped from the second floor of a building. He was undergoing surgery which could last for several hours.

While awaiting the end of the surgery, the applicant’s husband went to the premises of the Vračar Police Department. He was shown the broken window that his son had allegedly jumped through. The applicant claims that her husband was initially informed that their son, who had been handcuffed and in his winter jacket, had been alone in the office when he had jumped through the window, but was later told that their son had broken away in the presence of three inspectors.

It appears that D.P. was in a comatose state while in hospital, except between 26 and 28 January 2002, when he gave some signs of awareness and demonstrated some motor function.

According to the medical certificate issued by the Serbian Clinical Centre, on 15 February 2002 at 4.30 a.m. D.P. died from sepsis and cardiac arrest.

Following a request by the investigating judge (M.P.) of the District Court in Belgrade, the post-mortem examination of D.P.’s body was carried out on 18 February 2002 at 9 a.m. by two doctors, Sl.K. and V.D.J., of the Institute for Forensic Medicine of the Faculty of Medicine in Belgrade. The autopsy report stated that D.P.’s death was violent and caused by damage to vital brain centres and complications thereafter. It further concluded that the damage to D.P.’s vital brain centres, as well as his rib and leg fractures and other external and internal bodily injuries described in the report, were “inflicted with a blunt and heavy object (tupim, teškim i zamahnutim predmetom)”. It appears that the autopsy did not include any toxicological analysis or photographs.

2. Internal preliminary disciplinary proceedings

A report on the questioning of the three police officers who had been present during the relevant incident (S.K., D.K. and N.K.), was drawn up, apparently in the framework of an internal disciplinary inquiry (prethodni disciplinski postupak) conducted within the Vračar Police Department on 17 January 2002. This report is not available to the Court, but parts of its contents are quoted in a medical report of 2004 (see paragraph 19 below). According to the report, all three police officers provided concurring statements to the effect that D.K. had entered the office first, followed by D.P., and then his two other colleagues. As soon as they had entered the office, while the police officers were approaching their desks, D.P. had suddenly wrestled himself free, rushed forward, broken both window panes and jumped out into the courtyard.

3. The inspection of the scene of the incident on 17 January 2002

Following a telephone call from the Belgrade police department for investigative and operational affairs (Odelenje za uviđajno-operativne poslove SUP Beograd - hereinafter “DIOA”), the investigating judge on duty (V.M.), from an unspecified court, arrived at the Vračar Police Department at an unspecified time to inspect the scene of the incident. A second lieutenant (D.Z.) from the DIOA and a crime scene technician from the Vračar Police Department were also present during the inspection.

According to the investigating judge’s report on the scene of the incident (zapisnik o uviđaju), upon his arrival at the Vračar Police Department, police officers had shown him office number 24 and a broken window pane, in the left corner of the window, closest to the floor. As it was a double, white, wooden window, and as he had been informed that D.P. had jumped out through the window by breaking the glass, he had examined the pane in question. As he had seen no blood stains, hair or any other trace of this nature, he had asked two police officers who were present whether they had seen any traces, in order to inspect them, but they had both responded in the negative.

The investigating judge had noted only one broken window pane, as well as pieces of glass between the two panes and on the floor below the inside window. In the snow-covered courtyard of the police building, into which the suspect D.P. had allegedly fallen, he had noticed footprints below the window. He had also noticed trodden snow of an undetermined shape, but had not found any blood stains or other physical traces.

He had requested the crime technician who was present to draw a sketch of the scene and to photograph it, as well as to measure the size of the window pane. The sketch of the scene of the incident and the photographs were an integral part of the investigating judge’s report.

In the one-page report on the forensic inspection of the scene of the incident (izvestaj o kriminalističko-tehničkom pregledu lica mesta), the crime scene technician noted the following: (a) as regards the biological traces, the investigating judge had not requested that fingerprints be lifted and collected; (b) as regards the other evidence and objects found, broken glass had been noticed in the left lower part of the external and internal frame of the window (with dimensions of 0.50 x 0.55 and 0.45 x 0.50 metres, respectively). Both window frames had been found closed. Pieces of broken glass had been found between the panes of the window and on the windowsill. The window was nine metres from the ground. The trodden snow and pieces of glass had been found 1.5 metres away from the building’s wall. Other traces had not been found.

4. Investigative measures taken following the applicant’s criminal complaints

On 28 January 2002 the applicant’s husband lodged a criminal complaint on behalf of the family with the Third Municipal Public Prosecutor’s Office in Belgrade. The complaint was lodged against a police officer (D.K.), on the ground that there was a reasonable suspicion that he had forcibly extracted a statement from D.P. In the complaint it was claimed that the police officers had been using force against D.P., in order to extract a statement and had severely ill-treated him to such an extent that he would probably not have been able to bear it anymore, so he had jumped out of the office window. The complaint included an allegation that the police officers had failed to disclose D.P.’s identity and all the circumstances of the incident to the emergency medical team.

It appears that at some point, the case was transferred to the District Public Prosecutor’s Office in Belgrade (hereinafter “the DPPO”).

It also appears that on an unspecified date, the applicant’s husband extended the criminal complaint to include two other police officers (N.N. and S.K.).

On an unspecified date the DPPO (represented by the public prosecutor D.L.) requested a commission of forensic experts from the Institute for Forensic Medicine of the Faculty of Medicine to express their opinion on which other causes, apart from the fall from the window, could have explained D.P.’s injuries.

In their expert opinion dated 13 September 2004 the medical experts stated, on the basis of the autopsy report and other medical files, that a person of D.P.’s height and constitution could have “squeezed through” (got through with some effort) the window in question. They further maintained that D.P.’s fatal injuries could have been caused by his jump from the window and his falling on a hard surface. Finally, they concluded that no other injuries, lacerations, scratches or haematomas had been described in the autopsy report or in the hospital’s files of such characteristics, type or location as to indicate that they had been inflicted by any means other than the one mentioned above.

On 1 November 2004, without seeking additional information, the DPPO rejected the criminal complaint on the ground that there was no reasonable suspicion that the suspects had committed the alleged crime. At the same time, the applicant’s husband was notified that he could pursue a subsidiary criminal prosecution within eight days of the date this decision had been served on him by filing a request for an investigation (zahtev za sprovodjenje istrage).

On 16 February 2005 the applicant and her husband lodged a new and more detailed criminal complaint with the DPPO against the police officers (P.N., N.K., D.K. and S.K. for causing severe bodily harm (teske telesne povrede), extracting a statement by coercion (iznudjivanje iskaza) and ill-treatment in the discharge of their official duties (zlostava u sluzbi) - for the relevant domestic law, see paragraph 33 below). The complaint expressed the applicant’s and her husband’s doubt that D.P. had jumped out of the office of his own motion, and their suspicion that the suspects had thrown their son’s corpse out of the window in order to conceal previous ill treatment. The complaint pointed out certain contradictions and shortcomings in the previous investigative measures and reports, and proposed that numerous investigative activities be carried out in order to adequately investigate the circumstances of D.P.’s controversial death. In particular, the applicant and her husband requested the DPPO to question P.N., N.K., D.K. and S.K. as accused persons; to summon and examine several witnesses, including the complainants, police officers who had been present during the inspection of the crime scene, the doctors from the emergency unit and the medical staff who had found and transferred D.P. to the hospital; to carry out a reconstruction of the incident; and to examine again the medical files and experts’ reports in order to clarify the remaining forensic inconsistencies.

On 22 March 2005 the DPPO in Belgrade rejected that criminal complaint for the same reasons relied on in its decision of November 2004, and repeated its notification about the possibility of a subsidiary prosecution. That decision was served on the applicant on 8 April 2005.

5. The applicant’s pursuit of a subsidiary prosecution

On an unspecified date the applicant attempted to take over the prosecution as a subsidiary prosecutor, by filing a request for an investigation (zahtev za sprovođenje istrage) with the District Court in Belgrade and, subsequently, a request to broaden the scope of the investigation (zahtev za proširenje istrage). She relied on and reaffirmed the assertions she had made in her second criminal complaint (see paragraph 21 above).

Further to a request by the investigating judge (B.P.) of the District Court of 25 March 2005, on 15 January 2006 two forensic pathologists (Dr Z.S. and Dr N.M.) provided an expert opinion. Relying on the previous medical and autopsy reports, they found that the location, distribution and types of injuries observed on D.P. had indicated that they were severe and life-endangering, and that they could undoubtedly have been the result of the fall from the second floor, but only through an open window. In particular, taking into account the circumstances of the incident, such as D.P.’s constitution, his winter clothes and the fact that he had been handcuffed, the size of the window pane in issue and the position of the furniture and the window in the office, it would have been practically impossible for D.P. to have broken through the window and jumped.

It appears that on 18 April 2006 the investigating judge held a hearing in order to interview the suspects.

On an unspecified date the investigating judge refused to open the investigation sought by the applicant (izrazio neslaganje sa zahtevom), and referred the case to a three-judge criminal panel, in accordance with Article 243 § 7 of the Criminal Procedure Code.

On 17 July 2006 the three-judge panel of the District Court endorsed the investigating judge’s findings, relying on the case file, namely the “concurring statements of the suspects” and the findings and opinions of the forensic experts in 2004 and 2006, “which [were] consistent and indicate[d] that all the injuries of the deceased could have been caused at the same time by his fall from a height of nine metres to a surface”. The applicant was instructed that she could appeal against that decision within three days from the date on which the decision was served on her and she did so, reiterating her previous arguments.

On 30 November 2006 the Supreme Court of Serbia rejected the applicant’s appeal as unfounded. In reaching that decision by reference to the expert commission’s forensic findings of 2004, it upheld the lower court’s reasoning as clear, conclusive and convincing. That decision was served on the applicant on 20 February 2007.

On 7 March 2007 the applicant submitted a motion to the Republic Public Prosecutor’s Office, urging him to lodge (with the Supreme Court) a request for the protection of legality (zahtev za zaštitu zakonitosti) on her behalf.

On 27 August 2007 the Republic Public Prosecutor informed the applicant that on that same day he had accepted her initiative and had lodged a request for the protection of legality against the decision of 30 November 2006, submitting, in particular, that: (a) the court had based its finding on evidence that had been challenged by the applicant and, which, according to him, had been flawed by inconsistencies; (b) the court had dismissed the applicant’s appeals without addressing her arguments; and (c) the collection and examination of evidence had been superficial, which had resulted in the incorrect and implausible conclusion reached by the court.

On 8 February 2008 the Supreme Court of Serbia rejected the Prosecutor’s request. Having regard to the case file and the hearing in the presence of the three suspects and their lawyer, the court stated the following: (a) the forensic experts had not ruled out that the victim might have inflicted the injuries on himself while breaking the window and falling on a hard surface; (b) no evidence had shown that the accused had caused the victim any bodily harm by any other means; (c) according to the relevant evidence, there was no reasonable suspicion that the suspects had committed the alleged crimes to an extent which would justify the opening of criminal proceedings; and, lastly, (d) the impugned decision had not ultimately precluded the opening of criminal proceedings if a victim as prosecutor submitted new evidence which had not existed or had been unknown at the time of his or her previous request for an investigation.

6. Civil proceedings against the State

It appears that in December 2002 the applicant and her husband brought a civil action against the respondent State in the First Belgrade Municipal Court (“the Municipal Court”), seeking damages in respect of D.P.’s ill-treatment and death while in police custody. It also appears that in July 2007 the Municipal Court established that D.P. had sustained injuries and died while in police custody, and that therefore the respondent State should compensate the applicant. It awarded each plaintiff (the applicant and her husband) 1,000,000 Serbian dinars (RSD) for non-pecuniary damage in that respect.

B. Relevant domestic law

1. Criminal Code of the Republic of Serbia 1977 (Krivični zakon Republike Srbije; published in the Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89 and 42/89, as well as in the Official Gazette of the Republic of Serbia - OG RS - nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03)

The relevant Articles of this Code read as follows:

Article 53 § 3

“Whoever commits the crime of severe bodily harm resulting in death shall be punished by imprisonment of from one to twelve years.”

Article 65

“(1) Whoever acting in an official capacity uses force, threats, or other inadmissible means ... with intent to extract a confession or another statement from an accused, a witness, an expert witness or another person, shall be punished with imprisonment of from three months to five years.

(2) If the extraction of a confession or a statement is aggravated by extreme violence or if the extraction of a statement results in particularly serious consequences for the accused in the criminal proceedings, the offender shall be punished by a minimum of three years’ imprisonment.”

Article 66

“A public official who in the discharge of his duties ill-treats another person, inflicts on him severe physical or mental suffering, intimidates, insults or generally treats another person in a manner offending his humanity shall be punished with imprisonment of from three months to three years.”

2. Criminal Procedure Code 2001 (Zakonik o krivičnom postupku; published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – no. 70/2001; amendments published in OG FRY no. 68/2002 as well as the Official Gazette of the Republic of Serbia – OG RS – nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09 and 72/09)

The relevant domestic provisions are contained in Articles 19, 20, 46, 61, 235, 242 and 243 of the Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02).

In accordance with these provisions, formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of crimes subject to public prosecution, including the crimes mentioned above in paragraph 33, the authorised prosecutor is the public prosecutor himself.

The public prosecutor’s discretion to decide whether to press charges, however, is bound by the principle of legality, which requires that he must act whenever there is a reasonable suspicion that a crime subject to public prosecution has been committed. It makes no difference whether the public prosecutor has learned of the incident from a criminal complaint lodged by the victim or another person, or indeed even if he has only heard rumours to that effect.

The public prosecutor must undertake measures necessary for the preliminary investigation of crimes subject to public prosecution and the identification of the alleged perpetrators. To that end he is vested with the power to co-ordinate the work of various law-enforcement agencies and other government bodies.

If the public prosecutor finds, based on the evidence before him, that there is a reasonable suspicion that a certain person has committed a crime subject to public prosecution, he will request the competent court to institute formal criminal proceedings. If, however, the public prosecutor decides that there is no basis for the institution of such proceedings, he must inform the victim of this decision; the victim then has the right to take over the prosecution of the case on his or her own behalf, in the capacity of a “subsidiary prosecutor” within eight days from the notification of the public prosecutor’s decision.

COMPLAINTS

Relying on Articles 2 and 3 of the Convention, the applicant complains of the alleged ill-treatment inflicted on her son by the police officers responsible for his custody which ultimately led to his death. Under the same head, she further complains about the failure of the respondent State to conduct an effective investigation into the circumstances surrounding her son’s death, with the alleged intention of concealing police abuse.

THE LAW

The applicant alleged that her son had been ill-treated and subsequently died as a result of that ill-treatment. The Court has examined these complaints under Articles 2 and 3 of the Convention.

Pursuant to the general rules of international law (see Article 28 of the Vienna Convention on the Law of Treaties), the Convention does not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before its entry into force with respect to that Party (“the critical date” - see Blečić v. Croatia [GC], no. 59532/00, § 70, ECHR 2006 III; Šilih v. Slovenia [GC], no. 71463/01, § 140, 9 April 2009; and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 130, ECHR 2009 ...). Since the alleged events took place in 2002, whereas the Convention entered into force in respect of Serbia on 3 March 2004, these complaints are incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3.

It follows that this part of the application must be declared inadmissible in accordance with Article 35 § 4.

The applicant also complained that no effective investigation had been conducted into the circumstances of her son’s ill-treatment and death.

Having examined these complaints under Articles 2 and 3 of the Convention, the Court considers that it cannot, on the basis of the case file, determine their admissibility and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the failure to investigate the alleged acts of ill-treatment and the killing of the applicant’s son;

Declares the remainder of the application inadmissible.

Stanley Naismith Francoise Tulkens Registrar President