Baranin and Vukčević v. Montenegro (Applications nos. 24655/18 and 24656/18)
A selection of key paragraphs can be found below the judgment.
142. The Court notes that the investigation into the applicants’ ill-treatment was and apparently still is being carried out by the State prosecutor’s office, which is institutionally and hierarchically totally independent from the Police Directorate and the Ministry of the Interior (see paragraph 57 above). The State prosecutor took a number of investigative steps. In particular, in the months following the incident she had interviewed the applicants, obtained the medical reports, medical expert report, inspected the available video footage, and established the position of the SAU vehicles involved (see paragraphs 7, 12, 14, and 18 above). She had not, however, interviewed any of the SAU officers engaged on the night of the incident, other witnesses and potential witnesses, as the Constitutional Court rightly observed (see paragraph 23 above). The State prosecutor took these measures only between September and November 2017, after the Constitutional Court decisions had been published, that is two years after the incident (see paragraph 26 above). In other words, even though the State prosecutor eventually pursued most of the lines of enquiry and most of the traceable witnesses were interviewed, this was not done promptly, promptness being one of the elements of an effective investigation.
146. The Court also notes the Government’s submission that the applicants’ complaint was premature as the investigation was still ongoing. There is, however, nothing in the case file as to what investigative measures, if any, have been taken after 3 November 2017 (see paragraph 32 above). Therefore, it cannot be said that the complaint is premature.
148. The essential purpose of an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and prohibiting torture and inhuman or degrading treatment and punishment in cases involving State agents or bodies, and to ensure their accountability for deaths and ill-treatment occurring under their responsibility (see Nachova and Others, cited above, § 110; see also Mocanu and Others, § 318, and Bouyid, § 117, both cited above). An obligation to investigate, as indicated above, is not an obligation of results, but of means. However, any deficiency in theinvestigation which undermines its ability to establish the circumstances of the case or the person responsible will risk falling foul of the required standard of effectiveness (see paragraph 132 above).
149. In view of the above, the Court considers that the investigation in the present case, conducted both by the prosecutor and the police, was not prompt, thorough, independent, and did not afford sufficient public scrutiny. It had deficiencies, as indicated above, which undermined its ability to identify the persons responsible, and insufficient efforts were made, following the Constitutional Court’s decision, to remedy those deficiencies or comply with the Constitutional Court’s instructions. In these circumstances, the fact that the facts concerning the actions of the SAU commander were established and that he was sanctioned cannot lead to the conclusion that the respondent State discharged their procedural duty under Article 3 to conduct an effective investigation.
152. The Court therefore concludes that the applicants have retained their victim status and dismisses the Government’s preliminary objection on that point (see Jevtović, cited above, § 63). It also holds that there has been a violation of the procedural aspect of Article 3 of the Convention.