Beatings and ill-treatment of citizens by police! Insufficient investigation covered up the guilty police officers! Inhuman and degrading treatment
JUDGMENT
Baranin and Vukčević v. Montenegro 11.03.2021 (app. no. 24655/18 and 24656/18)
SUMMARY
Police violence against citizens. Police beat pedestrians. Inhuman and degrading treatment by unknown police officers. Incomplete and ineffective investigation prevented the finding of the specific police officers and consequently the administration of justice.
More specifically that night, the applicants were near the site of the demonstrations, but did not take part in them. In order to avoid the group of protesters, they headed towards the police through a side street and were given an escape route. A few meters away, several police officers in helmets approached the applicants, ordered them to lie on the ground, verbally assaulted them and kicked them. One of the officers pressed the second applicant’s head to the ground with his foot. The event was filmed from a nearby office window and posted on YouTube by the editor-in-chief of the daily Vijesti.
Following the notification of the cases to the defendant Government, the applicants received compensation for their inhuman and degrading treatment. Both the first instance judgment of the civil court and the Constitutional Court found a violation of the essential aspect of Article 3.
They resorted to the ECtHR because no effective investigation had been carried out to find the police officers. They specifically complained that the prosecution’s investigation was incomplete in its methods, and that it did not use all possible avenues to track down the criminal police officers. They also complained that the police investigation, and in particular that of its commander, was biased, in no case sufficiently independent and clearly ineffective.
The Court found a violation of the procedural part of Article 3 (prohibition of inhuman or degrading treatment) and a non-violation of the substantive part, and awarded a sum of EUR 7,500 for non-pecuniary damage to each applicant.
PROVISION
Article 3
PRINCIPAL FACTS
On 24 October 2015 an opposition coalition organised protests in Podgorica in front of Parliament. A large number of police officers were deployed to ensure security at the gathering, including members of the Special Police Unit (“SPU”) and the Special Anti-Terrorist Unit (“SAU”). At some point the protests turned violent. Some of the protesters tried to force their way into Parliament, and started throwing stones and Molotov cocktails at the police. The head of the Security Centre (Centar bezbjednosti – “the SC”) in Podgorica, who had been in charge of ensuring safety at the protests, ordered that the gathering be terminated. A number of related incidents followed in the city that night, such as the looting of shops and breaking of windows, including those of banks. The total number of injured was fifty-four, of whom twenty-nine were police officers and twenty-five protesters.
The same evening, at about 10.30 p.m., the applicants were in the vicinity of the protests, but did not participate in them. In order to avoid a group of protesters, they headed towards police in a side street, who let them pass. A few metres further on several masked police officers approached the applicants, ordered them to lie on the ground, verbally insulted them and kicked them. One of the police officers pressed the second applicant’s head to the ground with his foot. A SAU Hummer vehicle was at the scene, as well as a few other vehicles. The event was recorded from a window of a nearby office and put on YouTube by the editor-in-chief of the daily newspaper Vijesti.
On an unspecified date, after seeing the video footage, the State prosecutor’s office (Osnovno državno tužilaštvo – “the SPO”) opened a case file against unknown SAU officers for ill-treatment.
On 25 October 2015 the SAU issued a single report on the events and the use of force the previous night. The incident involving the applicants was not mentioned.
On 27 and 28 October 2015 respectively the applicants sought medical assistance. The medical report concerning the first applicant noted a painful haematoma 30 cm in diameter on his inner left thigh, a painful haematoma 20 cm in diameter on his inner right thigh, and a 1 cm haematoma around his left eyelid. The medical report concerning the second applicant noted an 8 by 4 cm haematoma in the area of his left ribcage, and a 15 by 7 cm haematoma on the back of his left knee.
On 30 October 2015 the applicants reported the incident to the police. The same day they were interviewed by SC police officers. The SC also requested video footage from the scene and from various media.
On 10 November 2015 the SPO asked the Police Directorate (Uprava policije) to inform it of the identity of the applicants. It also requested information as to what had been done in order to identify the SAU officers involved in two other incidents which had taken place that night, at the scenes of which the SAU Hummer vehicle had been seen, and into which the SPO had also opened case files. The SPO noted that these incidents had not been mentioned in the SAU report of 25 October.
On 12 November 2015 the SPO requested information from the SAU about the GPS position of all official vehicles used on 24 October 2015 between 9.30 p.m. and midnight. On 20 November 2015 the SAU submitted information regarding nine vehicles. Specifically, SAU officer Lj.P. had been in charge of all of them, including the Hummer. He had not driven any of them, however, as he had been in a fire vehicle stationed in front of Parliament. The report stated that the SC had examined the available video footage (from surveillance cameras and that made by the media), but given its poor quality and the fact that the police officers involved had been wearing gas masks and helmets, it had been impossible to identify them. The applicants could not have recognised them for the same reason either.
On 20 November 2015 the Police Directorate informed the SPO of three different incidents where force was used by the police on the night in question, including the incident involving the applicants, and specified the applicants’ names.
On 26 January 2016 the SPO requested information from the Director of Police as to what had been done to identify the police officers involved and the reasons why this had not been done sooner.
On 29 February 2016 an expert medical report was provided in respect of the applicants’ injuries following a request by the SPO on 8 February 2016 to that effect. In substance, the report confirmed the earlier medical reports. The injuries were classified as minor bodily injuries inflicted by blunt mechanical weapons, as well as the fists or feet.
On 7 April and 6 May 2016 the SPO urged the Police Directorate to identify the SAU agents involved in the event.
On 17 January 2017 the applicants lodged constitutional appeals complaining of torture, inhuman and degrading treatment and the lack of an effective investigation.
In the course of the proceedings that followed the SPO submitted to the Constitutional Court that all the evidence indicated that ill-treatment had been committed against the applicants, but that the SPO had no means of identifying the perpetrators since their faces had not been visible in the available videos and the applicants had been explicit in saying that they could not recognise them. The SPO had urged the head of the SC, the Police Directorate and the Minister of the Interior to take measures to identify the perpetrators. The Police Directorate submitted that they had interviewed the applicants and inspected the video footage, but could not identify anybody as the police officers had been wearing masks and helmets. They had forwarded the material obtained to the SPO.
On 21 June 2017 the Constitutional Court found a violation of both the substantive and procedural aspects of Article 3. In particular, the applicants had suffered inhuman and degrading treatment at the hands of unidentified SAU officers, resulting in minor bodily injuries, and causing them physical pain and mental anguish. As the applicants had done nothing to provoke it, the use of force had not been justified and had been excessive and disproportionate.
On 23.01.2017, the Podgorica Criminal Court found the SAU commander guilty of the criminal offense and sentenced him to five months in prison. In its ruling, the court found that SAU officers had illegally used excessive force at three locations in Podgorica on 24.10.2015.
On 17.01.2017, the applicants filed constitutional complaints for torture, inhuman and degrading treatment or lack of effective investigation.
During the proceedings that followed, the prosecution submitted to the domestic Constitutional Court that all the evidence showed that the police had committed crimes against the applicants, but stressed that it had no means of identifying the perpetrators, as their persons were not visible in the available videos and the applicants were unable to identify them.
THE DECISION OF THE COURT….
The Court firstly notes that there is no dispute between the parties that the applicants were ill-treated on the night in question. Their allegations were confirmed by video footage, and their ill-treatment established by the Council for Civic Control of the Police, the Ombudsman, the Constitutional Court and the civil courts, and acknowledged by the Government. They were credible and as such required an effective official investigation.
The Court notes that the investigation conducted in the present case resulted in clarifying some of the facts, in particular that the applicants had been indeed ill-treated by police officers and the injuries they had sustained thereby. It also resulted in the prosecution and conviction of the SAU commander for aiding a perpetrator following the commission of a crime.
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. 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. 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. 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. 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.
Moreover, as the collected evidence did not ensure the identification of the perpetrators, the State prosecutor depended heavily on the police in that regard. More specifically, the SPO requested the assistance of the Security Centre and the Police Directorate. It should be noted in this regard that on the night in question the SAU was under the command of the head of the very same Security Centr. In addition, both the Security Centre and the SAU were parts of the same Police Directorate. In other words, those whose assistance was requested were subject to the same chain of command as the officers under investigation and thus lacked independence (see Oğur v. Turkey [GC], no. 21594/93, § 91, ECHR 1999‑III; Hugh Jordan v. the United Kingdom, no. 24746/94, § 120, 4 May 2001; and Ramsahai and Others,), as the Constitutional Court rightly observed. This conclusion must in no way be interpreted as preventing police officers from performing any tasks in investigations into the use of force by other police officers (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 322, ECHR 2011 (extracts)), but if the police participate in such investigations, sufficient safeguards should be introduced in order to satisfy the requirement of independence (see Hugh Jordan, § 120, and Ramsahai and Others, §§ 342-46, both cited above). In the present case, there were no such safeguards.
It is also noted that the applicants were given the State prosecutor’s report of November 2017 shortly after they had asked for it, and could consult the case file at the Constitutional Court. It is also observed, however, that under national law the applicants, as injured parties, and their representative, can attend the questioning of, inter alia, witnesses so that they can propose questions or even put them directly. In order to be able to exercise that right they need to be informed of the place and time of the questioning, which does not appear to have been the case here, given that the Government have not contested the applicants’ submissions in that regard.
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. Therefore, it cannot be said that the complaint is premature.
The Court acknowledges that there were a number of incidents and clashes that same evening, including attacks against the police, and that security considerations required police interventions. The Court has already held, however, that the procedural obligation under Articles 2 and 3 continues to apply in difficult security conditions. Even where the events leading to the duty to investigate occur in a context of generalised violence and investigators are confronted with obstacles and constraints which compel the use of less effective measures of investigation or cause an investigation to be delayed, the fact remains that Articles 2 and 3 entail that all reasonable steps must be taken to ensure that an effective and independent investigation is conducted (see Mocanu and Others, cited above, § 319, and Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 164, ECHR 2011).
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 the investigation 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.
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.
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.
Just satisfaction: EUR 7,500 for non-pecuniary damage to each applicant.
