European Court of Human Rights

 

 

THIRD SECTION

CASE OF BALKASI AND OTHERS v. ALBANIA

(Application no. 14800/18)

 

 

 

 

JUDGMENT

STRASBOURG

14 June 2022

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Balkasi and Others v. Albania,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Andreas Zünd, President,
          Darian Pavli,
          Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 14800/18) against the Republic of Albania lodged with the Court on 21 March 2018 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Albanian nationals, as indicated in the appended table (“the applicants”);

the decision to give notice to the Albanian Government (“the Government”) of the complaints under Articles 3, 8 and 14 of the Convention and to declare inadmissible the remainder of the application;

the observations submitted by the respondent Government and the observations in reply submitted by the applicants;

the comments submitted by the European Roma Rights Centre (“the ERRC”), which were granted leave to intervene by the President of the Section;

Having deliberated in private on 24 May 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The application concerns the lack of an effective criminal investigation into the second, third and fifth applicants’ credible assertions that they had been ill-treated by police officers.

THE FACTS

2.  The applicants are members of a family of Roma ethnic origin and their address in the application form is given as being in Tirana. Their names and years of birth are set out in the appendix. The applicants were represented by Ms A. Metalla, a lawyer practising in Tirana.

3.  The Government were represented by their former Agents, Ms A. Hiçka and Mr A. Metani and, subsequently, by Mr O. Moçka of the State Advocate’s Office.

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

I.        The authorities’ account of the incident oN 13 December 2013

5.  On 13 December 2013 three police officers went to the applicants’ former home village in Fier to search for an individual who had fled justice.

6.  The officers were wearing police vests over their plain clothes. As soon as they approached the fugitive, he started running away. After a brief pursuit, the officers were able to capture the fugitive in the applicants’ garden. While he was pinned down, the fugitive called for help and a group of approximately fifty persons, including the applicants, congregated. The officers identified themselves as police officers and showed their police identity cards.

7.  The group, of which the applicants were the most active members, hit the officers and directed them to leave the village as they would not be allowed to arrest the fugitive. The officers were therefore forced to leave without arresting the fugitive. On the same evening they produced an operation report (raport shërbimi) of the events.

8.  On 14 December 2014, following a criminal complaint lodged by two of the officers in question, a judicial police officer decided that the wounds of the police officers would be examined and forensic medical reports drawn up.

II.     The applicants’ account of the incident oN 13 December 2013

9.  On 13 December 2013, at around 7 p.m., the applicants and their family members, with the exception of the fourth applicant, were in their home when four individuals in plain clothes, wearing masks and armed with pistols and wooden bats unexpectedly broke into their garden. When the second applicant and his wife asked those persons to identify themselves, they pushed the second applicant’s wife away and hit the second applicant with their fists and the barrels of their pistols. The second applicant collapsed and started bleeding from his lower lip.

10.  The third and fifth applicants intervened to defend the second applicant, their father, and a tumultuous confrontation ensued. The fifth applicant was hit with a wooden bat. One of the applicants, who was not identified, was pushed against a car parked nearby which caused the car’s glass to break. The wife of the second applicant, the wife of another family member and the third applicant were also injured.

11.  When a number of neighbours gathered, three of the armed individuals ran away whereas the fourth individual removed the mask, identified himself as a police officer and directed everyone to stay back. Before leaving the site, the officer stated that the second applicant would be imprisoned for having obstructed a police officer if he filed a criminal complaint against him.

12.  The first applicant suffered from mental health problems which predated the incident and, although he was at home during the event, he did not see the police officers come in or engage in any way with them. At the time of the incident the fourth applicant was in the vicinity and he came home only after the officers had left.

13.  The third applicant called the police and the operator advised him that he needed to call the neighbourhood’s police officer (të plotfuqishmin e lagjes), which he did. Following the advice of the neighbourhood’s officer, one of the applicants called the People’s Advocate office, which is an institution in charge of upholding the rights of individuals that face unlawful acts from the public administration.

14.  On 14 December 2013 several members of the applicants’ family, it is unclear who exactly, went to the hospital in order to obtain medical reports on the wounds they had suffered in the confrontation. The medical personnel asked them to file criminal complaints before carrying out the examinations. Consequently, the applicants went to the local police station.

15.  While in the police station, the officers did not take the members of the applicants’ family seriously and did not record their complaints. At some point one of the officers who had taken part in the police operation asked them not to lodge a complaint and suggested that they find a friendly settlement. The officer also apologised for the behaviour of the police. Consequently, they did not lodge a criminal complaint.

III.   Administrative complaint before the People’s Advocate

A.    Applicants’ statements before the People’s Advocate

16.  On 15 December 2013 three officers from the People’s Advocate office met with the second and third applicants as well as a number of their family members, heard their complaints and took written statements in respect of the events of 13 December 2013.

17.  The second and third applicants as well as their family members described the events, essentially, as set out in paragraphs 9-15 above.

18.  The third applicant stated that he was frightened as, on 14 December 2013, some of his cousins had met one of the police officers involved in the event who had reportedly stated that he would “personally deal with the applicants’ family” (“me atë familje do kem punë unë”). The third applicant asked that the State intervene to resolve the matter as his family had no experience in dealing with police forces. In an additional statement of 17 January 2014 before the People’s Advocate, the third applicant stated that as a result of the pressure exercised by one of the police officers who had been involved in the event, his father - that is the second applicant - had not filed a criminal complaint.

B.    Administrative inquiry by the People’s Advocate

19.  On 26 December 2013 the People’s Advocate filed a request for information with the local police authorities raising the issues of the police officers’ failure to identify themselves in the operation of 13 December 2013, the violence used against the second applicant and his family, the threats made to dissuade him from filing a criminal complaint and the subsequent failure to register his criminal complaint.

20.  In a response of 6 January 2014, the police authorities stated that they went to the village to arrest an individual who had absconded. They also stated that no one had been hit by the police officers and that the second applicant and his family members had obstructed the operation.

21.  On 22 January 2014 the People’s Advocate delivered its findings on the matter to the police authorities in the form of a recommendation. The People’s Advocate described the parties’ version of events and concluded that the police authorities had failed to comply with their obligations in a number of respects. Firstly, on 13 December 2013 the police officers were not wearing uniform or any other proof of identity as required by domestic law. Secondly, they had used unnecessary force towards the second applicant and his family. Thirdly, contrary to their obligations, the authorities had produced medical expert reports only on the wounds of the police officers and had failed to register the criminal complaints of the second applicant and his family members. Lastly, the police authorities had also failed to inform the relevant prosecutor’s office about the incident.

22.  In view of the above findings, the People’s Advocate recommended that the police authorities carry out an enquiry concerning the events of 13 December 2013 in order to determine the responsibility of the police officers involved and that the necessary measures be taken for the correct implementation of applicable laws in future. The People’s Advocate also directed the police authorities to inform his office of any measures taken as a follow-up to the recommendations.

23.  It appears that no further action was taken by the police in this regard.

IV.  Criminal proceedings against the applicants

24.  On 16 April 2014 the prosecutor’s office filed a bill of indictment against the applicants in respect of the events of 13 December 2013 accusing them of having obstructed the work of police officers.

25.  In their defence the applicants restated their version of the events as described in paragraphs 9-15 above and submitted the recommendation issued by the People’s Advocate on 22 January 2014 (see paragraph 21 above).

26.  They also complained that the second, third and fifth applicants, amongst others, had been injured during the police operation and the authorities had failed to open an investigation into their claims. The applicants cited several judgments of this Court concerning Article 3 of the Convention in support of their arguments.

27.  On 30 July 2014 the Fier District Court found the applicants guilty as charged and imposed sentences of between two- and four-months’ imprisonment. The court did not address the applicant’s claims that they had been ill-treated. The court reasoned that the officers’ statements and the medical reports submitted by them supported the charge that the applicants had obstructed the police operation.

28.  On 30 April 2015 the Vlora Court of Appeal rejected the applicants’ appeal but decided to suspend the execution of the prison sentences.

29.  Upon a cassation appeal in which the applicants reiterated the above arguments, on 19 May 2016 the Supreme Court, sitting in camera, rejected their appeal in a de plano decision. The applicants submitted that they had gained knowledge of the Supreme Court’s decision on 24 May 2017, and on 29 May 2017 they lodged a complaint with the Constitutional Court raising essentially the same arguments (see paragraph 26 above).

30.  On 29 September 2017 the Constitutional Court rejected the applicants’ complaints as belated. It noted that the Supreme Court’s decision had been taken on 19 May 2016 and no appeal had been submitted within the four-month statutory time-limit.

THE LAW

I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

31.  The applicants complained that the treatment to which they had been subjected by the police officers on 13 December 2013 and the authorities’ subsequent failure to investigate their allegations of ill-treatment violated their rights under Article 3 of the Convention which provides:

Article 3

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

A.    Admissibility

1.     The parties’ submissions

32.  The Government submitted that the applicants had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. They had not started any domestic proceedings to complain about the violation of their rights under Articles 3 of the Convention. In particular, the applicants could have filed a criminal complaint with the prosecutor’s office, an administrative complaint with the Ministry of the Interior’s Internal Control Service (Shërbimi i Kontrollit të Brendshëm) or a civil action for damages.

33.  Moreover, the Government argued that the application should be declared inadmissible under Article 35 § 3 (a) since the right of individual petition had been abused. They maintained that the application was clearly unsubstantiated and the applicants had distorted the facts since they had not been subjected to treatment contrary to Article 3 of the Convention. Instead, they had administered such treatment to the police officers.

34.  The applicants contested the Government’s arguments. They referred to their submissions before the domestic courts in the criminal proceedings instituted against them and argued that that they had raised their complaints before the authorities. They further stressed that they had submitted their complaints to the People’s Advocate. They argued that a criminal investigation should have started ex officio once the authorities had gained knowledge of their allegations of ill-treatment during the police operation.

2.     The Court’s assessment

(a)    As regards the first and the fourth applicants

35.  The Court notes that the first applicant stated before the domestic authorities and the Court that, although he was at home on 13 December 2013, he did not hear or interact in any way with the police officers (see paragraph 12 above). As regards the fourth applicant, he maintained that he had come home after the incident was over.

36.  Having regard to these considerations, the Court finds that the first and the fourth applicants have failed to make an arguable claim or credible assertion that they were ill-treated (compare also Igars v. Latvia (dec.), no. 11682/03, § 72, 5 February 2013). On that account, their complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

(b)    As regards the second, third, and fifth applicants

(i)     Exhaustion of domestic remedies

37.  The Court notes at the outset the Government’s argument that, in order to exhaust domestic remedies, the remaining applicants should have instituted civil and administrative proceedings to obtain redress for the alleged breach of Article 3. It reiterates, however, that in the area of unlawful use of force by State agents, civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those responsible, are not adequate and effective remedies capable of providing redress for complaints based on the substantive aspect of Article 3 of the Convention (see Pihoni v. Albania, no. 74389/13, § 68, 13 February 2018, and Kyriacou Tsiakkourmas and Others v. Turkey, no. 13320/02, § 252, 2 June 2015). It follows that the remaining applicants in the present case were not obliged to exhaust those remedies.

38.  The Government also argued that the remaining applicants have not exhausted domestic remedies as they failed to file a criminal complaint. In this connection, the third applicant asserted that their complaints had been brought to the attention of the police phone operator as well as the neighbourhood’s police officer (see paragraph 13 above). In addition, several members of the family had tried to obtain medical examinations of their injuries and had gone to the local police station to lodge a criminal complaint. However, the police officers had allegedly refused to record their complaint (see paragraphs 14 and 15 above). In the third applicant’s submission, one of the officers involved had even threatened the second applicant so as not to lodge a criminal complaint (see paragraph 18 above). Moreover, another reason advanced by the remaining applicants for not lodging a criminal complaint was that they had been led to believe that the officers acknowledged their fault towards them.

39.  The Court observes with concern that none of the domestic authorities addressed the complaints that were repeatedly brought to their attention. In particular, when the People’s Advocate asked the police authorities whether they had recorded the second applicant’s criminal complaint, the authorities offered no comment on the matter (see paragraph 20 above). Neither had the assertions of the remaining applicants been addressed by the Government in the proceedings before the Court.

40.  In any event, the absence of a formal complaint does not relieve the authorities of their obligation to investigate once the matter has come to their attention (see Gorgiev v. the former Yugoslav Republic of Macedonia, no. 26984/05, § 64, 19 April 2012, and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 186, ECHR 2012). In this connection, by virtue of the officers’ operational report of 13 December 2013 and their complaint of 14 December 2013 (see paragraphs 7 and 8 above), the domestic authorities were already aware that a physical confrontation had taken place in the applicants’ village. In addition, two days after the incident the People’s Advocate took several statements by the persons involved in the event stating that the remaining applicants had been ill-treated by police officers. The People’s Advocate considered the statements plausible in both letters sent to the police authorities (that is the request for information - see paragraph 19 - and its findings on the incident, see also paragraph 21). Finally, during the criminal proceedings against them, the applicants relied explicitly on Article 3 of the Convention and the Court’s case-law under that Article, thereby making their complaints known to the prosecutor and the judges involved in those proceedings (see paragraph 26 above). The foregoing considerations are sufficient to conclude that, despite the absence of a formal criminal complaint, the domestic authorities acquired sufficient knowledge of the remaining applicants’ credible assertions that they were subjected to treatment contrary to Article 3. It follows that the Government’s non‑exhaustion plea must be dismissed.

(ii)    Compliance with the six-month time-limit

41.  In assessing whether an applicant has complied with Article 35 § 1, it is important to bear in mind that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016) and that the Court cannot set aside the application of the six‑month rule solely because the Government have not raised a preliminary objection to that effect (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006-III).

42.  As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. In cases concerning an investigation into ill-treatment, applicants are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 263, ECHR 2014 (extracts)).The identification of the exact point in time when this stage occurs depends on the circumstances of the case and is difficult to determine with precision. As long as there is some meaningful contact with the authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay by the applicants will not generally arise (see ibid., §§ 266 and 269, and Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 165, ECHR 2009).

43.  In the instant case, the Court considers that for as long as the remaining applicants’ complaints of ill-treatment were pending before the domestic courts in the context of the criminal proceedings against them, no issue arose in respect of compliance with the six-month rule. Indeed the remaining applicants argued - and the Court agrees - that their submissions were capable of prompting the opening of an investigation into their allegations. As they lodged their application within six months of the decision of the Constitutional Court dismissing their constitutional appeal (see paragraph 30 above), the Court does not discern any periods of inexplicable delays on the part of the applicants.

44.  The Court does not lose sight of the Constitutional Court’s finding that the applicants’ appeal was lodged outside the four-month deadline. However, neither the Constitutional Court’s decision nor the Government’s submissions before the Court provided any explanation as to why 19 May 2016 had been considered as the starting date of the four-month time‑limit to lodge an appeal with the Constitutional Court. In particular, it does not transpire from the case file that the remaining applicants were notified that their case would be examined by the Supreme Court on 19 May 2016. Moreover, the Supreme Court’s decision was taken in camera, that is without the presence of the remaining applicants, and there is no evidence that they were notified of the decision itself or that a written decision was available at the Supreme Court’s Registry for them to collect. Accordingly, their statement that they lodged a constitutional appeal within four months of 24 May 2017 when they acquired knowledge of the Supreme Court’s decision of 19 May 2016, remained unchallenged (see, mutatits mutandis, Ivanova and Ivashova v. Russia, nos. 797/14 and 67755/14, §§ 52‑58, 26 January 2017). Having regard to the foregoing and to the applicants’ vulnerability (see Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 147‑148, ECHR 2010), in the specific circumstances of the present case, the Court accepts that the remaining applicants complied with the six-month rule provided under Article 35 § 1 of the Convention.

(iii)  Alleged abuse of the right of application

45.  As to the alleged abuse of the right of individual application, the Court reiterates that under Article 35 § 3 (a) of the Convention an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references). It considers that the Government’s objection stems from the parties’ dispute of the facts of the case. In this connection, the Court notes the applicants’ version of events did not appear abusive to the People’s Advocate office that recorded their accounts and carried out an administrative inquiry into their complaints. It further considers that the applicants are entitled to offer an alternative account of the facts of the case compared to that established by the domestic authorities, without this amounting automatically to an abuse of the right of individual application (compare also Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 185, ECHR 2014 (extracts)). Accordingly, the Court is unable to conclude that the remaining applicants’ description of the facts amounts to an abuse of the right of application. The Government’s objection in this regard must therefore be dismissed.

(iv)  Conclusion

46.  The Court further notes that the remaining applicants’ complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     The parties’ submissions

(a)    The applicants

47.  The second, third and fifth applicants submitted that on 13 December 2013 they had been ill-treated by police officers and that the domestic authorities had failed to fulfil their procedural obligation to investigate the circumstances of the event.

(b)    The Government

48.  The Government contested the applicants’ account of the events and held the view that the applicants had not submitted any credible assertion that they had been subjected to treatment contrary to Article 3 to the domestic authorities. They also submitted that, in any case, the domestic authorities had investigated the events of 13 December 2013 and had concluded that, rather than being ill-treated, the applicants had been the ones that had obstructed the police officers from carrying out their tasks.

(c)    The third-party intervener

49.  The ERRC referred to a number of international reports describing the situation of Roma in Albania and submitted that several signs pointed towards a form of “anti-Gypsyism” among law enforcement authorities.

2.     The Court’s assessment

(a)    Relevant principles

50.  The Court refers to the general principles regarding the substantive limb of Article 3 which have been summarized, amongst other cases, in Bouyid v. Belgium [GC], no. 23380/09, §§ 81-87, ECHR 2015. Requirements of a procedural obligation to carry out an effective investigation have been recently summarised in X and Others v. Bulgaria [GC], no. 22457/16, §§ 184‑92, 2 February 2021). In particular, in order to be effective, the investigation must be prompt, thorough - which means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill‑founded conclusions to close their investigation - and be capable of leading to the identification and - if appropriate - punishment of those responsible.

51.  The Court has also held in the past that the absence of forensic medical examinations are capable of preventing the establishment of whether an alleged victim received any injury (see Shishkin v. Russia, no. 18280/04, § 117, 7 July 2011) and has reiterated that proper medical examinations are an essential safeguard against ill-treatment (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, §§ 55 and 118, ECHR 2000‑X).

(b)    Application of the principles to the present case

(i)     Alleged violation of the substantive limb of Article 3

52.  The Court notes that the second applicant alleged that he had been hit by the police officers with their fists and barrels of their pistols. As a result of these blows he had collapsed and his lower lip started bleeding. The third and the fifth applicants submitted that they had been involved in physical confrontation with the police officers as a result of which they had been injured, with the fifth applicant specifying that he had been hit with a wooden bat. For these reasons, the Court has no doubt that the alleged treatment reaches the minimum level of severity to attract the application of Article 3.

53.  It remains to be determined whether these allegations of ill-treatment are supported by appropriate evidence (compare Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000‑IV). In assessing that evidence, the Court has adopted the standard of proof “beyond reasonable doubt” (see El-Masri, cited above, § 151).

54.  In this connection, the Court notes that the Government denied the applicants’ allegations. It further observes that the People’s Advocate found that the police had used unwarranted force against the applicants (see paragraph 21 above). However, that finding appears to have been based primarily on the applicants’ statements. In the Court’s view, the People’s Advocate finding renders the applicants’ complaints arguable prima facie but is insufficient by itself to support a conclusion, based on the material available to the Court, that the applicants have been ill-treated.

55.  Accordingly, in the absence of sufficient evidence corroborating the applicants’ allegations, the Court is unable to establish beyond reasonable doubt that the police officers used unwarranted force against the second, third and fifth applicants.

56.  The Court therefore finds that there has been no violation of Article 3 of the Convention under its substantive limb in respect of second, third and fifth applicants.

(ii)    Alleged violation of the procedural limb of Article 3

57.  The Government submitted that the domestic authorities effectively investigated the events of 13 December 2013 and concluded that the remaining applicants had not been ill-treated. However, the Court notes at the outset that the authorities did not open any investigation into the applicants’ allegations. In fact, in response to the People’s Advocate’s allegations that they had been ill-treated, without interviewing the applicants or taking any witness statements, as early as 6 January 2014 the authorities adopted the position that the applicants had not been ill-treated (see paragraph 20 above). The Court considers that this course of action is incompatible with the requirement that the investigation authorities do not rely on hasty conclusions to close their investigation. That conclusion was reached without ordering a medical examination of the remaining applicants’ alleged injuries (see paragraph 51 above).

58.  As to the investigation that was carried out in the context of the proceedings leading to the applicants’ conviction, it does not appear that those proceedings pursued any other line of inquiry besides the one related to the applicants’ obstruction of the police officers. For example, there was no attempt to find out whether the remaining applicants had sustained any injuries, and if so, whether the injuries had been caused by the police officers’ use of unwarranted force. Similarly, there was no inquiry into the applicants’ allegations that they had attempted to obtain medical examinations of their injuries (see paragraph 14 above) and to file a criminal complaint. The Court finally notes that in the trial proceedings the domestic courts failed to take any steps to address the applicant’s claims of ill-treatment and to elucidate the circumstances of the applicants’ injuries (see paragraphs 27-28 above).

59.  Overall, while acknowledging the difficulties the prosecuting authorities face in a case in which allegations of use excessive force are made, in a context in which the persons concerned allegedly resisted the police, the Court finds that the authorities did not undertake all the required steps to try to provide answers to a number of major questions arising in the case, including how and when the officers had used force against the applicants, whether its use had been proportionate, and what had caused the injuries. Having regard to the injuries apparently sustained by the applicants, those are significant flaws in the investigation in the present case (see Kuchta and Mętel v. Poland, no. 76813/16, § 88, 2 September 2021).

60.  Having regard to the foregoing, the Court concludes that there has been a violation of Article 3 of the Convention under its procedural limb in respect of second, third and fifth applicants.

II.     Alleged violation of Article 8 of the Convention

61.  The applicants complained that, by entering their garden on 13 December 2013, the police officers violated their right to protection of their home under Article 8 of the Convention which, in so far as relevant, provides:

Article 8

“1. Everyone has the right to respect for ... his home ...”

62.  The Government stated that the applicants did not exhaust any domestic remedy in respect of their complaint.

63.  The applicants submitted that the police officers failed to provide them with a report on the entry into their home as required by domestic law.

64.  The Court notes that the applicants’ position was that the officers had entered their garden due to the poor organisation of the operation which had been aimed at arresting a fugitive. In view of the nature of the complaint, the Court agrees with the Government’s stance that civil law remedies, such as an action for damages, could provide a remedy for the applicants’ complaint. Having failed to initiate any legal proceedings in this respect, the applicants have not exhausted domestic remedies.

65.  It follows that the complaint under Article 8 of the Convention must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

III.   Alleged violation of Article 14 TAKEN IN CONJUNCTION WITH ARTICLE 3 of the Convention

66.  The applicants complained that the alleged violation of their rights under Article 3 of the Convention was based on the fact that they are of Roma ethnic origin and therefore amounted to discrimination prohibited by Article 14 of the Convention which reads:

“Article 14

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.”

67.  The Government contested the applicants’ allegations.

68.  The Court reiterates that where the State authorities investigate violent incidents, they have an additional obligation to take all reasonable measures to identify whether there were racist motives and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation is often 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. 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 racially induced violence (see B.S. v. Spain, no. 47159/08, § 58, 24 July 2012, with further references).

69.  Furthermore, the authorities’ duty to investigate the existence of a possible link between racist attitudes and an act of violence is an aspect of their procedural obligations arising under Article 3 of the Convention, but may also be seen as implicit in their responsibilities under Article 14 of the Convention to secure respect without discrimination for the fundamental value enshrined in Article 3. Owing to the interplay of the two provisions, issues such as those in the present case may fall to be examined under one of the two provisions only, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case on its facts and depending on the nature of the allegations made (see B.S. v. Spain, cited above, § 59).

70.  Turning to the present case, having regard to the Court’s conclusion that there is no sufficient evidence that the remaining applicants had been ill‑treated, it considers that no separate issue arises under Article 14 read in conjunction with the substantive limb of Article 3.

71.  It remains to be determined whether a separate issue arises under Article 14 of the Convention read in conjunction with the procedural limb of Article 3, the Court having found a breach of the latter provision. In this connection, the Court notes that although the remaining applicants submitted before the domestic authorities in general terms that they had been discriminated against, they did not report any reference to their ethnicity in the interactions that they had with domestic authorities (see, a contrario, B.S. v. Spain, cited above, § 61). Neither did they point out to other circumstances disclosing a discriminatory attitude by the domestic authorities. Notwithstanding the difficulty to prove racial motivation, in the present case the Court is unable to discern any element which could open the way to the argument that the authorities’ failure to investigate the applicants’ allegations raises a separate issue under Article 14 of the Convention.

72.  Accordingly, the Court considers that no separate issue arises under Article 14 in conjunction with Article 3 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

73.  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

74.  The second, third and fifth applicants claimed 15,000 euros (EUR) each in respect of pecuniary and non-pecuniary damage, to be paid in the bank account of Tirana Legal Aid Society (“TLAS”), a non-profit making organisation that represented them in the domestic proceedings.

75.  The Government submitted that the claim was unsubstantiated and excessive.

76.  Taking into account the nature of the violation found and the parties’ submissions, and ruling on an equitable basis, the Court awards the second, third and fifth applicants EUR 4,500 each in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount, to be paid into the bank account of TLAS as requested by the applicants.

B.    Costs and expenses

77.  The remaining applicants submitted that they received free legal aid from TLAS and did not make any claim in respect of costs and expenses.

78.  Accordingly, the Court does not award any sum under this head.

C.    Default interest

79.  The Court considers it appropriate that the default interest rate 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,

1.      Declares the complaint under Article 8 of the Convention inadmissible;

2.      Declares the second, third and fifth applicants’ complaint under Article 3 of the Convention admissible and the first and fourth applicants’ complaint under that provision inadmissible;

3.      Holds that there has been a violation of the procedural limb of Article 3 of the Convention on account of the authorities’ failure to investigate the second, third and fifth applicants’ allegations of ill-treatment by state agents and no violation of the substantive limb of that Article;

4.      Holds that no separate issue arises under Article 14 taken together with Article 3 of the Convention;

5.      Holds

(a)  that the respondent State is to pay the second, third and fifth applicants, within three months, EUR 4,500 (four thousand five hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement and be paid in the bank account of TLAS;

(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;

6.      Dismisses, the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

          Olga Chernishova                                                 Andreas Zünd
          Deputy Registrar                                                      President

 

 

APPENDIX

 

List of applicants:

Application no. 14800/18