Zličić v. Serbia (Applications nos. 73313/17 and 20143/19)

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

93.  By 25 April 2018 the Court of First Instance and the Appeals Court ruled in favour of the applicant. The respondent State was ordered to pay compensation for his ill-treatment by the police on 10 January 2014. In their reasoning both courts fully accepted the events as presented by the applicant and stated that his abuse amounted to a breach of his constitutional rights, as well as his rights and freedoms guaranteed by ratified international treaties (see paragraphs 37 and 38 above).

94.  The above findings by the domestic courts are in themselves sufficient for the Court to conclude that the alleged ill-treatment has been adequately proven and, hence, for it to establish a substantive violation of Article 3 of the Convention. Moreover, the findings of the domestic courts are also supported by the evidence submitted before the Court and it therefore finds no reason to depart from them. The Court, however, deems it important, in this context, to express its views on a number of related issues.

98.  Furthermore, the Court notes that the applicant’s signature on the seizure certificate does not, clearly, exclude the possibility that it was obtained under duress, which is in fact exactly what the applicant has claimed and what the civil courts themselves accepted when ruling in his favour (see paragraphs 5, 37 and 38 above). Similarly, given G.K.’s allegations of his own abuse by the police, it would seem unrealistic to expect that shortly after the alleged ill-treatment had occurred he would have had the possibility to freely object to it and have that recorded by the police themselves in a written document (see paragraphs 11 and 22 above).

99.  In any event, the Government offered no alternative explanation as to how the applicant might have sustained the injuries in question, that is other than through the police abuse alleged. Ultimately, the civil courts considered all of the above and held that the applicant had been ill-treated by the police and that he had also signed the seizure certificate under duress.

107.  The Court furthermore observes a somewhat inconsistent approach to the assessment of evidence by the national prosecuting authorities in dealing with the applicant’s allegations of police ill-treatment. Notably, the public prosecutor’s office mostly based its conclusions on the statements given by the police officers involved in the incident and discounted the testimony offered by G.K. and the applicant personally, apparently because they reflected their subjective opinions and constituted an accusation against the officers in question (see paragraphs 14 and 15 above). At the same time, however, the domestic prosecuting authorities accepted the credibility of the police officers’ statements, without giving a sufficiently convincing explanation and despite the fact that those statements might also have been subjective and aimed at evading the latter’s criminal liability. The Court considers in this regard that the credibility of the police officers’ statements should also have been properly questioned, particularly in view of the existing medical and other evidence regarding the applicant’s injuries and given that the investigation itself was supposed to establish whether those very officers were criminally liable for the applicant’s purported ill-treatment (see, mutatis mutandis, Ognyanova and Choban v. Bulgaria; no. 46317/99, § 99, 23 February 2006; Antipenkov v. Russia, no. 33470/03, § 69, 15 October 2009; and Mikiashvili v. Georgia, no. 18996/06, §§ 82 and 83, 9 October 2012).

109.  The Court reiterates that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission at issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice. Consequently, a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim”. In respect of complaints under Article 3, such as the ones here at issue, the national authorities have to: (a) acknowledge the breach of the Convention, either expressly or in substance (see, among other authorities, Murray v. the Netherlands [GC], no. 10511/10, § 83, ECHR 2016, with further references, and Jevtović v. Serbia, no. 29896/14, § 61, 3 December 2019); (b) afford redress, or at least provide a person with the possibility of applying for and obtaining compensation for the damage sustained as a result of the ill-treatment in question (see Shestopalov, cited above, § 56; Gjini, cited above, § 54; and Jevtović, cited above, § 61); and (c) conduct a thorough and effective investigation capable of leading to the identification and – if appropriate – punishment of those responsible (see Jevtović, cited above, § 61). A breach of Article 3 cannot therefore, in the Court’s view, be remedied only by an award of compensation to the victim because, if the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity. The general legal prohibition on torture and inhuman and degrading treatment, despite its fundamental importance, would thus be ineffective in practice (see Vladimir Romanov v. Russia, no. 41461/02, § 78, 24 July 2008; Gäfgen, cited above, §§ 116 and 119; and Jevtović, cited above, § 61). That is why awarding compensation to the applicant for the damage which he sustained as a result of the ill‑treatment is only a part of the overall action required (see Cestaro v. Italy, no. 6884/11, § 231, 7 April 2015, and Jevtović, cited above, § 61). The fact that domestic authorities may not have carried out an effective investigation would, however, be decisive for the purposes of the assessment of an applicant’s victim status (see Shestopalov, cited above, § 56, and Jevtović, cited above, § 61).

110.  Turing to the present case, the Court notes that in finding a causal link between the applicant’s ill-treatment by the police and his mental and physical suffering, the civil courts established the respondent State’s substantive responsibility for the events of 10 January 2014 (see paragraphs 37 and 38 above). However, the total award of the equivalent of approximately EUR 1,260, in view of the principles set out in the case of Shestopalov (cited above, §§ 58-63) and more recently in Artur Ivanov v. Russia (no. 62798/09, § 19, 5 June 2018), appears to be substantially less than the award the Court itself would have made given a finding of a violation of the magnitude claimed (see, for example, Antropov v. Russia, no. 22107/03, 29 January 2009, and Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 202-16, ECHR 2006‑V). Most importantly, the respondent State failed to carry out an effective official investigation into the applicant’s allegations of police ill-treatment (see paragraph 108 above). In these circumstances, the applicant may still claim to be a “victim” of a breach of his rights under Article 3 of the Convention on account of the inhuman and degrading treatment to which he had been subjected (see, for example and among many other authorities, Razzakov v. Russia, no. 57519/09, § 51, 5 February 2015). Accordingly, the Government’s objection in this regard must be dismissed.

111.  The Court furthermore notes that, as pointed out by the Government, the applicant could also have brought a private criminal action for the offence of slight bodily harm following the rejection of his criminal complaint lodged against the police officers involved (see paragraph 46 above). However, having received the said criminal complaint the public prosecutor’s office was already under a duty to ensure that the preliminary investigation was carried out, that the evidence was obtained and that, if the evidence against the alleged perpetrators was sufficient, criminal proceedings were pursued against them. The Court therefore sees no reason in these circumstances to require the applicant to pursue yet another avenue of pressing criminal charges, this being the responsibility of the public prosecution service which is certainly better, if not exclusively, equipped in that respect (see, mutatis mutandis, Matko v. Slovenia, no. 43393/98, § 90, 2 November 2006, and Stojnšek v. Slovenia, no. 1926/03, § 79, 23 June 2009). The Court therefore dismisses the Government’s objection in that connection.