Ineffective investigation into police ill treatment for “forced confession”. Extended temporary detention for 3 years! Violations of the ECHR!
JUDGMENT
Stevan Petrović v. Serbia 20.04.2021 (app. no. 6097/16 and 28999/19)
SUMMARY
Torture of a detainee by police. Duration of 3 years of temporary detention. Ineffective research into torture.
Following a search of his residence, the applicant was misled into the police station to testify as a witness, but an arrest warrant and a temporary detention order were immediately issued, accusing him of robbery. He was taken to a remote police station, where he was allegedly abused by police and forced to confess on his own initiative by a lawyer appointed of his choice and not of his choice.
The ECtHR reiterated that for any alleged police misconduct, the responsible state must conduct a thorough investigation. It found that in the present case, the domestic authorities relied solely on the testimony of police officers who had an obvious legal interest in withholding information. The ECtHR considered that the investigation was therefore not thorough and found a violation of Article 3 of the ECHR with regard to the procedural part.
The ECtHR subsequently ruled that the prolonged detention on remand for 3 years violated the right to personal liberty under Article 5§3 of the ECHR.
The ECtHR also held: (a) that the applicant ‘s arrest and interrogation was lawful and that Article 5 § 4 was not infringed; his rights of defense had not been ‘adversely affected’ to the extent that the overall fairness of the proceedings had been undermined, and consequently Article 6§1 of the ECHR had not been violated.
The ECtHR awarded EUR 6,000 for non-pecuniary damage and EUR 2,000 for legal costs.
PROVISION
Article 3
Article 5 par. 1
Article 5 par.3
Article 5 par. 4
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Stevan Petrović, is a Serbian national who was born in 1987 and lives in Serbia.
The case concerned the pre-trial detention of the applicant as a suspect in a robbery and the
subsequent investigation proceedings.
On 20 February 2013 the investigating judge of the Zrenjanin High Court (Viši sud u Zrenjaninu) ordered that the applicant’s flat be searched. The order stated that it was probable that the search would result in the uncovering of traces of a robbery or in the seizure of evidence of importance to the criminal investigation.
On the same day, at around 12.50 p.m. or 1.00 p.m., the police, having searched his home, took the applicant to the Novi Kneževac police station. According to the Government, the applicant went of his own free will. According to the applicant, however, he did not. In any event, by 1.45 p.m. at the latest, the applicant arrived at the Novi Kneževac police station.
In the meantime, at around 1.30 p.m., the applicant’s mother had contacted a lawyer, Viktor Juhas Đuric (V.J.Đ.), in order to retain his services as her son’s defence counsel. By 2.45 p.m. she signed the authorisation form and V.J.Đ. arrived at the police station.
According to V.J.Đ., the police informed him that the applicant was not being held as a suspect, but rather as a witness, and that as such he was in no need of a lawyer. V.J.Đ. nevertheless insisted that he be allowed to talk to the applicant. Some 10 minutes later, V.J.Đ. saw the applicant in a room where there was a police officer present. V.J.Đ. objected to this, but the officers reaffirmed that the applicant was there merely as a witness and showed V.J.Đ. the summons served on the applicant in this regard.
According to V.J.Đ., the applicant was served with the said summons at 2.45 p.m. According to the Government, however, the applicant was served therewith immediately after the search of his home.
The summons itself was dated 20 February 2013. It invited the applicant, “as a citizen”, to come to the Novi Kneževac police station on that date, at 1.00 p.m., and provide information about a robbery. He was also informed that should he fail to appear, he would be brought forcibly. There was no indication in this document as to when the applicant was served therewith.
The police thereafter issued a provisional detention order (rešenje o zadržavanju) and served it on the applicant at 3.50 p.m. The order stated that, in connection with a robbery, the applicant, who was suspected thereof, could be held for a period of 48 hours, starting at 3.50 p.m., which was “when he had been deprived of his liberty, that is when he had complied with the summons” (kada je lišen slobode, odnosno kada se odazvao na poziv). According to the police, there were also indications to the effect that the applicant could tamper with evidence or influence witnesses and/or other participants in the criminal proceedings.
According to V.J.Đ., at 3.50 p.m. a police officer informed him that the applicant would, after all, be charged with robbery, but the officer refused to provide him with any information as regards the evidence against his client. In fact, the officers stated that the applicant would be taken to Zrenjanin, a town some 100 kilometres away, in order to be questioned by the police there and for the purposes of taking part in an identity parade.
According to V.J.Đ., this was only a ploy to get the applicant to give a statement in his absence and to confess under duress. According to the Government, however, the applicant’s stay in the Novi Kneževac police station was only temporary since the local police had merely acted under the instructions of the Zrenjanin police because of the applicant’s place of residence. The idea was always for the latter to question the applicant, since they were the ones in charge of the investigation against him. In any event, there was never an intention to interrogate the applicant in the absence of his lawyer. The applicant was also suspected of committing robberies in various locations, including in the territory of the Zrenjanin Municipality.
According to V.J.Đ., he opposed the applicant’s transfer to Zrenjanin and requested that the applicant be interviewed by the police at the Novi Kneževac police station, but the officers refused to do so. At around 4.15 p.m. – 4.30 p.m., V.J.Đ. stated that it was too late in the day for him to travel to Zrenjanin. At around 4.40 p.m. he left the police station, having before that advised the applicant to refuse to answer questions in Zrenjanin and remain silent, whatever the charges.
According to the applicant, at around 5.30 p.m. – 6.00 p.m. he was taken to the Zrenjanin police station, where he was physically ill-treated in order to elicit his confession. At 9.20 p.m., the applicant’s police-appointed lawyer, I.K., arrived. Fearing additional police abuse, the applicant confessed in his presence, as well as in the presence of a deputy public prosecutor, to a number of robberies but did not inform him of the ill-treatment already suffered. According to the Government, no ill-treatment took place.
On 21 February 2013 the applicant was again interviewed by the police and, according to him, was again severely beaten by the officers in order to extort his confession as regards various robberies. He therefore had no choice but to confess to some, in the presence of his police-appointed lawyer and on record, but still denied others. According to the Government, no ill-treatment took place on this occasion either.
On the same day, V.J.Đ. informed the Zrenjanin High Court, by means of a written submission, of what had transpired in respect of the applicant’s arrest, detention and transfer to Zrenjanin. He also stated, inter alia, that, being based in Subotica, he could not have travelled to Zrenjanin as it was too far. V.J.Đ. could not therefore attend the applicant’s questioning before the investigating judge either, but still wished to defend his client. In conclusion, V.J.Đ. requested that he be informed of all procedural developments so that he could make use of the relevant remedies on the applicant’s behalf.
On 21 February 2013, while in the Zrenjanin District Prison (Okružni zatvor u Zrenjaninu), the applicant was visited by a prison doctor. According to the applicant, he complained about having chest pains and coughing up blood as a consequence of the police ill-treatment. The doctor, for his part, noted that the applicant’s lungs required further examination but gave no reasons therefor. There is likewise no indication in the available documents as to at what time exactly this examination took place. According to the Government, all this was merely a routine medical examination prior to the applicant’s admission into a detention facility.
THE DECISION OF THE COURT…
Article 3
The Court notes that the applicant alleged that he had been abused by the police on 20 and 21 February 2013 and that his parents allegedly witnessed his abuse on the latter occasion. The applicant also maintained that this had been done in order to elicit his confession in respect of the crimes with which he had been charged. It must in the Court’s view, however, be noted that the applicant only complained of the said ill-treatment on 22 February 2013 before the investigating judge, but did not mention it to his legal aid lawyer on 20 or 21 February 2013. In fact, the police interview of 20 February 2013 was attended by the deputy public prosecutor personally, who would, at least legally speaking, have been duty-bound to investigate any allegations of police brutality.
Furthermore, in his statement given to the investigating judge on 22 February 2013 the applicant simultaneously yet somewhat confusingly said that he had had to confess to the crimes in question for fear of additional police abuse but that he could not say that he had not committed those crimes since he had in fact done so. Once, however, the applicant had rehired V.J.Đ. as his lawyer he decided to exercise his right to remain silent as regards the charges, in an attempt to put forth a new defence strategy . On 22 February 2013 the investigating judge also apparently noticed no visible injuries on the applicant or he would otherwise have been legally required to take appropriate action. There is no evidence in the case file that either the investigating judge or the deputy public prosecutor would have had a reason to be negatively predisposed toward the applicant and the Court cannot engage in speculation. Similarly, as regards the applicant’s legal aid lawyer, the Court notes that the applicant did not remove him before 5 March 2013, which would indicate the absence of a pressing need on his part to distance himself from a person who might not have had his best interests at heart.
Lastly, as regards medical examinations, the Court notes that on 21 February 2013, while in the Zrenjanin District Prison, the applicant was visited by a prison doctor who, in response to the applicant’s complaints, noted that his lungs required further examination. On 25 February 2013 the police took the applicant to a medical facility in order for an x-ray and spirometry to be carried out. The doctors concluded that the applicant was suffering from bronchitis. On 27 February 2013 the applicant was again examined by a doctor, who found no visible injuries. Lastly, on 27 May 2014 a forensic expert submitted his findings. He took into account the applicant’s statements, as well as the existing medical documentation, and concluded that although the applicant had alleged that he had been extensively beaten all over his body there was no medical documentation that would corroborate those assertions. In these circumstances, the Court cannot but conclude that the existing medical evidence does not support the applicant’s allegation to the effect that he was ill-treated while in police custody. At the same time, however, the Court notes with some concern the possibility that there may have been a significant deficiency in the way in which some of the medical examinations in question may have been carried out.
In view of the foregoing and applying the standard of proof of “beyond reasonable doubt” , the Court cannot find a violation of the substantive aspect of Article 3 of the Convention, the failings in the investigation carried out by the Serbian authorities not being such as to allow the Court to draw any inferences in this regard.
Article 5
The Court notes that there is no evidence in the case file, apart from the applicant’s own allegations to this effect, that he had indeed been brought forcibly to the police station in Novi Kneževac, following the search of his home on 20 February 2013, or that he had been held there against his will before 3.50 p.m., which was when the police issued their 48-hour provisional detention order. Furthermore, within that time frame, on 22 February 2013, the investigating judge extended the applicant’s detention for another thirty days. In those circumstances, the applicant’s deprivation of liberty was fully in compliance with the relevant domestic legislation. The applicant was also not questioned by the police before the arrival of his lawyer and was ultimately interviewed by them in Zrenjanin on 20 February 2013 at 9.20 p.m., in the presence of his legal aid lawyer and less than six hours after being detained on the basis of the said provisional detention order. The requirements of Article 229 § 6 of the Code of Criminal Procedure were therefore likewise complied with in the present case.
In view of the foregoing, there has been no violation of Article 5 § 1 of the Convention.
Article 5 par. 3
The Court cannot but conclude that the national judicial authorities assessed the need to continue the applicant’s pre-trial detention from a rather abstract and formalistic point of view, taking into consideration, as they did for the overwhelming part, only that if released he could reoffend. While this ground for detention on remand, as such, cannot be deemed as being in breach of Convention requirements, a repeated yet formulaic reference to it alone cannot justify almost three years of pre-trial detention in the present case, particularly since the domestic courts did not offer any assessment as to how the applicant’s overall detention-related situation may have changed over time. To hold otherwise would imply a possibility of indefinite pre-trial detention on this basis alone. Concerning the four occasions where there was some mention of other reasons for the applicant’s detention, they too were abstract. Specifically, there was no substantiation on the part of the domestic courts, for example, as to why the witnesses in question had not yet been heard or what the indications were that the applicant if released would try to influence them. With respect to the other “relevant evidence” and the “expert’s report” in question, the domestic judicial authorities likewise failed to explain what this evidence consisted of and/or what made it relevant, as well as why that evidence and the expert’s report itself had not yet been obtained. Both matters were, in any event, something that the domestic authorities themselves had to secure.
The Court further considers that the criminal proceedings brought against the applicant were not of unusual complexity given the crimes in question and that, ultimately, the length of proceedings in a criminal case does not necessarily have to correspond to the length of a defendant’s pre-trial detention. Also, the applicant cannot be blamed for making use of domestic remedies and especially not for complaining about alleged police abuse. It is up to the respondent State’s authorities, after all, to deal with those efficiently. Lastly, the Court notes that even if the applicant’s lawyer did arguably cause some delay on two specific occasions, this did not account for more than a month’s delay in all and cannot as such be of any bearing on the Court’s conclusions as expressed above.
In view of the foregoing, there has been a violation of Article 5 § 3 of the Convention.
Article 5 par. 4
The Court notes that, following the investigating judge’s detention order of 22 February 2013, when the applicant was indeed heard in person , the national judicial authorities extended the applicant’s pre-trial detention on fifteen separate occasions for periods of thirty days, sixty days, two months, three months or until a further court decision. Each time those extensions were upheld at second instance. Furthermore, the courts in question, at first or second instance, did not hear the applicant personally on any of those occasions . Even accepting that the applicant could have requested his release from detention when heard on 5 March 2013, 8 September 2014 and 25 April 2016, as argued by the Government , it follows that the applicant was heard in person, in a detention-related or possibly detention-related context, only on four occasions over a period of approximately three years, which is how long his pre-trial detention lasted. This, in the Court’s view, cannot be deemed as having been in compliance with the “reasonable interval” requirement referred to in its own case law and, moreover, no amount of written arguments, as part of the appeals proceedings or otherwise, could remedy this deficiency.
Article 5 § 4 applies to proceedings before a court following the lodging of an appeal against the lawfulness of the detention, that is to say in respect of the proceedings concerning requests for release as well as proceedings relating to appeals against decisions on the extension of one’s detention. It follows that Article 5 § 4 does not apply when a decision on the extension of detention is adopted ex proprio motu – which aims to set a maximum period of detention and to “renew” the legal basis for this measure within the meaning of Article 5 § 1 (c) of the Convention, and not to review the legality of the detention – but only from the moment an appeal is lodged against such a decision.
In view of the above, there has been a violation of Article 5 § 4 of the Convention.
Article 6 par. 3
The Court considers, as regards the latter test, that the first step should normally be to assess whether it has been demonstrated in the light of the particular circumstances of each case that a defendant wished to have a lawyer of his or her own and, where that wish was overridden, that there were relevant and sufficient grounds for overriding or obstructing the defendant’s wish as to his or her choice of legal representation. Where no such reasons exist, the Court should proceed to evaluate the overall fairness of the criminal proceedings.
Being mindful of the above and even assuming that the applicant’s wish to have a lawyer of his own choosing had been overridden by the domestic authorities, as well as that the reasons for this had themselves not been relevant and/or sufficient, the Court notes that the applicant did not elaborate in his complaint as to how exactly had this affected the overall fairness of the proceedings against him. In fact, the applicant had lodged his complaint with the Court, under Article 6 § 3 (c) of the Convention, on 11 March 2016 while the criminal trial against him only ended on 22 March 2017, meaning that any such assessment prior to the latter date would by the nature of things have been purely speculative. Furthermore, the applicant did not elaborate on any such fairness issues in his later observations submitted to the Court in the course of the proceedings before it.
In such circumstances, the Court cannot but conclude that there has been no violation of Article 6 § 1 (c) of the Convention, it further being noted that the Court was also unable to find a violation of the substantive aspect of Article 3 of the Convention as regards the applicant’s related allegations involving a forced confession.
Just satisfaction:
Non-pecuniary damage: EUR 6,000
Costs and expenses: EUR 2,000
