European Court of Human Rights

 

 

SECOND SECTION

CASE OF BABIĆ v. CROATIA

(Application no. 45391/16)

 

 

 

 

JUDGMENT

STRASBOURG

7 March 2023

 

 

 

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

 

In the case of Babić v. Croatia,

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

          Pauliine Koskelo, President,
          Lorraine Schembri Orland,
          Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 45391/16) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 July 2016 by a Croatian national, Mr Ilija Babić (“the applicant”), who was born in 1981, lives in Opatija and was represented by Mr B. Kozjak, a lawyer practising in Virovitica;

the decision to give notice of the complaints concerning alleged ill‑treatment and the right not to be tried twice for the same offence to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 7 February 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s alleged ill-treatment by the police during his arrest and his subsequent convictions in both minor-offence and criminal proceedings.

I.        Alleged ill-treatment

2.  On 28 May 2011, at around midnight, the applicant was arrested for insulting police officers while under the influence of alcohol. According to the police, during their intervention, the applicant swung his right hand towards officer D.S.’s head. The officer blocked the blow, kneed him in the torso and placed his right arm in an elbow lock, while another police officer did the same with his left arm. The officers then handcuffed him, placed him in a police van and took him to the police station. The event was witnessed by the applicant’s friend, I.K.

3.  The applicant submitted that he had been punched and kicked by the police officers in the van during the journey to the police station, although he admitted that he had been drunk and did not remember everything as he must have passed out several times.

4.  According to the police, on arriving at the police station the applicant jumped out of the van and threw himself on the ground, hitting his head. According to the applicant, one of the police officers pushed him out of the van.

5.  At the police station, the applicant refused to be examined by a doctor, who noted that he had a scratch under his right eyebrow.

6.  The applicant was then put in a sobering-up room. Following his release from that room the next day, the applicant requested to be examined by a doctor, who noted that he had several bruises.

7.  The applicant was then interviewed and stated that he had not attacked the police officers, but that they had attacked him, as evidenced by the bruises on both his eyes, his broken nose and broken rib.

8.  Following his release from custody, the applicant immediately went to hospital, stating that he had been beaten up by the police. He was found to have haematomas under both eyes and on both upper arms, as well as scratches on both upper arms and the left side of his torso. A further examination showed that he also had a broken rib. The doctor sent a medical report to the police.

9.  Meanwhile, the police officers involved in the arrest submitted written reports on their use of force.

10.  On 30 May 2011 the deputy commander of the police unit sent a report to the chief of police stating that the force used by the police had been lawful and justified, which the latter confirmed.

II.     Minor-offence proceedings

11.  On 28 May 2011 the police requested that the applicant be prosecuted under section 17 of the Minor Offences against Public Order and Peace Act for verbally insulting police officers during the performance of their duties at 12.13 a.m. on 28 May 2011 in front of a café in Slatina.

12.  On 15 July 2011 the applicant was convicted as charged and fined 190 Croatian kunas (HRK - approximately 25 euros). The fine was never collected.

III.   Criminal proceedings

13.  On 16 June 2011 the police sent a special report to the State Attorney’s Office about the incident and the physical injuries sustained by the applicant.

14.  On 29 June 2011 the police lodged a criminal complaint against the applicant for assaulting a police officer, a criminal offence under Article 318 of the Criminal Code.

15.  On 20 July 2011 the applicant was indicted for assaulting officer D.S. by swinging his right arm in the direction of his head, after insulting police officers during the performance of their duties in connection with a public order disturbance at around 12.30 a.m. on 28 May 2011 in front of a café in Slatina.

16.  During the trial, the judge consulted the case file relating to the minor-offence proceedings. The applicant contended that he had been ill-treated by the police and that he had unsuccessfully attempted to lodge a criminal complaint with the police in that connection. The court ordered an expert medical opinion, which concluded that his injuries could have been caused in various ways and had most likely been inflicted before his first medical examination at the police station, although the expert could not rule out that they had been inflicted later. The expert also stated that a broken rib could not be caused by falling onto a flat surface or being handcuffed.

17.  On 26 February 2013 the applicant was found guilty as charged and given a six-month suspended sentence.

18.  On 19 December 2013 the Bjelovar County Court dismissed an appeal by the applicant, stressing that it was not within its competence in the criminal proceedings against him to deal with his complaints of ill-treatment during his arrest.

19.  A subsequent constitutional complaint lodged by the applicant was dismissed on 25 February 2016 by the Constitutional Court, without any reasoning concerning his allegations of ill-treatment.

20.  The applicant complained, under Article 3 of the Convention, that he had been ill-treated by the police during his arrest and that there had been no effective investigation in that connection. He also complained, under Article 4 of Protocol No. 7, that he had been tried twice for the same offence.

THE COURT’S ASSESSMENT

I.         ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

A.    Admissibility

21.  In the circumstances of the present case, where the applicant, during his interview at the police station, clearly stated that he had been beaten up by police officers (see paragraph 7 above), and where the hospital doctor who examined him and established the extent of the injuries allegedly sustained by him in police custody sent a medical report to the police the next day (see paragraph 8 above), the State’s procedural obligation to investigate the allegations in question was triggered (see Hajnal v. Serbia, no. 36937/06, §§ 96-97, 19 June 2012). The Court therefore cannot accept the Government’s argument that the applicant should have lodged a criminal complaint against the police officers who allegedly ill-treated him.

22.  As regards the Government’s contention that the applicant failed to lodge a constitutional complaint, the Court notes that he did lodge a constitutional complaint following his criminal conviction stating that he had been ill-treated by the police and complaining about the manner in which his allegation of ill-treatment had been dealt with, but the Constitutional Court provided no reply to this assertion. In those circumstances, the Government’s argument that the applicant failed to exhaust domestic remedies must be dismissed.

23.  Furthermore, in view of the nature of the applicant’s injuries, as well as his claim that they had been sustained in police custody (see paragraph 8 above), the Court is satisfied that they were sufficiently serious to reach the “minimum level of severity” under Article 3 of the Convention.

24.  The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B.    Merits

1.     Procedural aspect

25.  The general principles concerning the State’s procedural obligations in respect of alleged ill-treatment in police custody are summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 114-23, ECHR 2015).

26.  Applying those principles to the present case, the Court notes that, despite being informed of the applicant’s alleged ill-treatment in police custody by him and the doctor who assessed his injuries (see paragraph 21 above), the authorities never opened an official criminal investigation with a view to establishing the manner in which those injuries had been sustained and possibly prosecuting the persons responsible. The only step the police undertook was an internal assessment of the legality and justification of the use of force (see paragraph 10 above), which cannot be considered to be an independent investigation into the incident (compare Mafalani v. Croatia, no. 32325/13, §§ 98-99, 9 July 2015, and Najafli v. Azerbaijan, no. 2594/07, § 52, 2 October 2012).

27.  While it is true that the authorities subsequently obtained an expert medical opinion concerning the extent of the applicant’s injuries (see paragraph 16 above), the Court cannot but note that this was done in the context of the criminal proceedings against him on charges of assaulting a police officer and that the trial court did not reach any conclusions in respect of his allegations of ill-treatment. As acknowledged by the appellate court (see paragraph 18 above), the criminal court was neither equipped nor competent to do so.

28.  The foregoing is sufficient for the Court to conclude that there has been a violation of Article 3 of the Convention under its procedural limb.

2.     Substantive aspect

29.  The general principles concerning the State’s substantive obligations in respect of alleged ill-treatment in police custody are summarised in Bouyid (cited above, §§ 81-90).

30.  The applicant submitted that the police officers had kicked and punched him in the van on the way to the police station (see paragraph 3 above). Although he admitted that he had been drunk on the evening in question, he maintained the allegation of ill-treatment from his first police questioning onwards (see paragraph 8 above).

31.  When he was first seen by the doctor on arriving at the police station, a single scratch below his right eyebrow was noted (see paragraph 5 above), whereas the following day some bruises were noted. Moreover, immediately after his release from the police station, the applicant was found to have multiple bruises, scratches and a broken rib (see paragraph 8 above). The subsequent expert medical opinion noted that his injuries could have been caused in many ways, but also that he could not have broken a rib while being handcuffed or falling onto a flat surface from a van, as claimed by the police (see paragraph 16 above).

32.  In view of the above, the Court is satisfied that the applicant has submitted sufficient elements to create a strong presumption that he sustained the bodily injuries complained of in police custody, and to shift the burden of proof to the Government (compare Bouyid, cited above, § 83; contrast Perkov v. Croatia, no. 33754/16, § 48, 20 September 2022).

33.  However, the Government have not provided a satisfactory and convincing explanation for the cause of those injuries by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Bouyid, cited above, § 83), nor was a Convention-compliant investigation conducted into the incident (see paragraph 28 above). On the basis of all the material before it, the Court therefore finds that the Government have not satisfactorily established that the applicant’s injuries were caused otherwise than by the treatment to which he was subjected in police custody.

34.  There has accordingly been a violation of Article 3 of the Convention under its substantive limb.

II.      ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION

35.  The relevant principles concerning the right not to be tried or punished twice for the same offence are summarised in Galović v. Croatia (no. 45512/11, §§ 107 and 113, 31 August 2021).

36.  The Court has already held that minor-offence proceedings in Croatia are “criminal” in nature for the purposes of Article 4 of Protocol No. 7 (ibid., § 105; see also Bajčić v. Croatia, no. 67334/13, §§ 27-28, 8 October 2020), and sees no reason to hold otherwise in the present case.

37.  As regards the idem element, the Court notes that in the minor-offence proceedings, the applicant was charged with insulting police officers (see paragraph 11 above), whereas in the subsequent criminal proceedings he was charged with attempting to assault one of them after insulting police officers during the performance of their duties (see paragraph 15 above). The applicant was thus not convicted for exactly the same acts in both sets of proceedings, even though they all occurred during the same incident at around 12.30 a.m. on 28 May 2011 in front of a café in Slatina (contrast Maresti v. Croatia, no. 55759/07, § 64, 25 June 2009).

38.  However, even accepting that the facts of the accusations overlap to a certain extent (compare Bajčić, cited above, § 38), as regards the bis element, the Court notes that the two sets of proceedings pursued complementary purposes: the protection of public order on the one hand and the physical integrity of a police officer on the other. Moreover, the duality of the proceedings was a foreseeable consequence for the applicant, both in law and in the practice of the respondent State.

39.  The Court is further satisfied that the competent courts interacted to an adequate degree (see paragraph 16 above) and that the sanctions imposed - a modest fine and a suspended prison sentence - were different in nature and did not make the applicant bear an excessive burden (compare Bajčić, cited above, § 44). Lastly, given that the criminal proceedings were initiated by the police only one month after the minor-offence proceedings, the Court considers that the two sets of proceedings were sufficiently connected both in substance and in time to be compatible with the bis criterion in Article 4 of Protocol No. 7.

40.  Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

41.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage and EUR 7,825 in respect of costs and expenses incurred before the Constitutional Court and before the Court.

42.  The Government contested those claims.

43.  The Court awards the applicant EUR 12,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

44.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 3,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaints concerning the applicant’s ill-treatment by the police admissible and the remainder of the application inadmissible;

2.      Holds that there has been a violation of Article 3 of the Convention under both its substantive and procedural limbs;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

       Dorothee von Arnim                                             Pauliine Koskelo
          Deputy Registrar                                                      President