Insufficient compensation from national courts for torture violates Article 3 of the ECHR.

JUDGMENT 

Selami and others v.  “The former Yugoslav Republic of Macedonia” 01.03.2018 (no. 78241/13)

see here

SUMMARY 

Torture by police officers and illegal detention. Fractures of the skull, neck and ribs. Compensation for inadequate compensation by national courts. Appeal of relatives before the European Court of Human Rights as Indirect Victims. Acceptable appeal only by the legal heir. Infringement of the prohibition of torture regarding the inadequacy of the indemnity for abuse and the right to reparation for unlawful detention.

PROVISIONS 

Article 3

Article 5 § 5.

PRINCIPAL FACTS 

The applicants, all Macedonian nationals, are respectively the widow and three children of the late Mr Selami. They are called Dževrije Selami (“the first applicant”), Nedžmije Aliu (“the second applicant”), Mesut Selami (“the third applicant” ) and Nedžmi Selami (“the fourth applicant” ).

Mr Selami was arrested in August 2002 on suspicion of involvement in the killing of two policemen.

During his detention he was severely beaten and hospitalised with skull, neck and rib fractures. He required brain surgery and remained in a coma for two weeks. He was subsequently indicted for membership of a terrorist group but in September 2003 the criminal proceedings were discontinued. Two months later he approached the Ministry of Justice for out-of-court damages for injuries allegedly inflicted by the police. He received no reply and in January 2004 he brought damages claims for unlawful detention and physical ill-treatment. In April 2010 the first-instance court awarded him the equivalent of 18,000 euros (EUR) in respect of non-pecuniary damage for unjustified detention. It dismissed the rest of his claim.

Mr Selami and the family appealed, arguing that the court had not determined their claim in relation to the serious injuries. In August 2012 the Court of Appeal dismissed the appeal, but allowed a cross-appeal by the Solicitor General and reduced the damages to EUR 9,800. The award was aimed at including damages for the ill-treatment.

Mr Selami died in April 2011. In October 2012, the fourth applicant, Nedžmi Selami, was declared his sole heir, and he lodged a further appeal to the Supreme Court in his own name and on behalf of his late father. That appeal was dismissed in July 2013.

THE DECISION OF THE COURT 

The Court first categorised Mr Selami’s treatment in terms of the European Convention. On the facts of the case, it noted that he had been ill-treated at the hands of the police in connection with his arrest and questioning and found that he had been a victim of torture, in violation of Article 3. The Court further established that his detention in August 2002 had been unlawful and in breach of Article 5.

It went on to consider whether Mr Selami’s family had standing to complain on behalf of, respectively, their late husband and father and in their own name. The question was whether they could complain in their own name of a violation of their rights under Article 3, that is, whether they were “direct victims”, and whether they could complain about Mr Selami’s torture and unjustified detention under Articles 3 and 5, that is, whether they were “indirect victims”.

It found on the first point that the family could not complain as direct victims of a violation of Article 3: Mr Selami had only been missing for two days and the family had not witnessed the brutality against him. Furthermore, no link could be established between the ill-treatment in 2002 and his death in 2011.

On the second point, the Court found that only the fourth applicant, Nedžmi Selami, had standing as an indirect victim. He was the late Mr Selami’s sole heir, had taken his place in the domestic compensation proceedings after his death and had inherited the award of damages. Nedžmi Selami had therefore demonstrated “a strong moral interest” in the State being held responsible for the violations, quite apart from the material interest linked with his entitlement to damages.

It also found that any general interest in proceeding with consideration of the first, second and third applicant’s application would be secured by dealing with the fourth applicant’s claim alone.
The Court dismissed the Government’s argument that Mr Selami should have initiated criminal proceedings which the family could then have continued after his death. The Court found that Mr Selami’s complaint had not been about the lack of an investigation into the allegations of ill-treatment under Article 3, but about the inadequacy of compensation. The State could not discharge itself from its “procedural obligation” by shifting responsibility for criminal investigative procedures onto the injured party, especially when the authorities themselves had been made aware of serious allegations worthy of investigation. There was also no evidence that criminal proceedings would have made any major difference to the award.

Turning to the merits of the case, the question for the Court was whether the national authorities, through their handling of the family’s civil complaint, had acknowledged the breaches of the Convention, and provided adequate redress. The Court noted that damages had been awarded for unjustified detention, and that the award purported to cover the admission of serious physical ill-treatment and bodily injury. Nevertheless, that acknowledgement had not included the earlier unauthorised detention during August 2002 and had contained no description, expressly or in substance, of the ill-treatment as “torture”. The damages had also been reduced significantly by the Court of Appeal.

Comparing the domestic compensation with its own awards for similar cases, the Court found that the sum offered for the violations could not be considered as appropriate redress and that the amount of EUR 9,800 had been unreasonably low.

The Court concluded, therefore, that there had been a violation of Nedžmi Selami’s rights under both Article 3 and Article 5 § 5.

Just satisfaction (Article 41)

The Court held that Nedžmi Selami had to be awarded the difference between the domestic compensation and the sum it would usually adjudge in such particularly serious cases. It accordingly awarded him EUR 20,000 in respect of non-pecuniary damage, plus any tax that was chargeable (echrcaselaw.com editing).

 


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