Gjini v. Serbia (Application no. 1128/16)

A selection of key paragraphs can be found below the judgment.

86. In view of the circumstances of the present case the Court notes that the prison staff in Sremska Mitrovica Prison must have noticed that the applicant’s eyebrows had been shaved, that he had a strange haircut, and that his skin had been damaged (see paragraph 28 above). They also must or ought to have heard the applicant’s screams and singing of nationalist songs at night (see paragraph 32 above).

87. Applying the principles set out in paragraph 78 to the present case, the Court finds that the prison authorities failed to notice or react to any of the signs of violence listed above; they further failed to secure a safe environment for the applicant and, also, failed to detect, prevent or monitor the violence he was subjected to.

88. Accordingly, there has been violation of Article 3 of the Convention in this respect.

96. It is true, as the Government observe, that the applicant never lodged a formal criminal complaint with the relevant authorities (that is, the police or the public prosecutor’s office), or complained to the prison administration about the specific acts of ill-treatment he was subjected to in Sremska Mitrovica Prison.

99.  (…) The question is rather whether the applicant’s failure to lodge a formal criminal complaint either prevented the State authorities from carrying out the investigation or relieved them of their general duty to do so (compare and contrast Tahirova,cited above, § 54).

100. The Court notes in this respect that the authorities knew or ought to have known at the time about the applicant’s ill-treatment (see paragraph 86 above), in addition, he raised the matter on a number of occasions thereafter. There was therefore no formal or factual element which stood in the way of an investigation.

101. Moreover, there was nothing in the domestic law to prevent the prison authorities from reacting or to prevent other authorities from initiating a criminal investigation. On the contrary, the Serbian legal framework, and in particular the provisions of the Code of Criminal Procedure, are explicit in imposing an obligation on all public authorities to report criminal offences subject to public prosecution of which they are informed (see paragraph 46 above).

102. In view of the above, the Court observes that the absence of a criminal complaint by the applicant did not prevent the public prosecutor from initiating criminal proceedings or preclude other domestic authorities from informing the public prosecutor about the allegations of ill-treatment.

103. In the light of the foregoing, in the absence of an effective official investigation, the Court dismisses the Government’s objection as to the applicant’s failure to exhaust domestic remedies by making use of the criminal-complaint procedure, and concludes that there has been a violation of Article 3 of the Convention under its procedural limb.