The illtreatment in prison by guards of a convict for sexually abusing a child constitutes inhumane and degrading treatment. The ineffective and incomplete investigation of his complaint constitutes a breach of the procedural limb of Article 3.

JUDGMENT

Jevtović v, Serbia 03.12.2019 (no.  29896/14)

see here 

Prohibition of torture, ill-treatment limits and obligation to investigate.

The applicant was convicted of sexually abusing a minor of only three years old. During his imprisonment, he was mistreated four times by guards. The authorities claimed that this was a justified attack in order to suppress a clash between detainees, but no effective investigation was ever conducted to establish the facts. The domestic Constitutional Court acquitted the applicant and awarded him EUR 1,000 in respect of non-pecuniary damage.

The Court has confirmed that, even in the most difficult of circumstances, such as the fight against terrorism and organized crime, the Convention strictly prohibits torture and inhuman or degrading treatment or punishment, irrespective of the behavior of that person.

In the present case, the ECtHR acknowledged the facts constituting ill-treatment by the national Constitutional Court and held that there had been a violation of Article 3 as to the substantive aspect.

As regards the procedural aspect, it found that the competent authorities had not carried out an effective investigation into these four cases and ordered – even with regard to the incident of 24 December 2011 only – to accelerate the ongoing formal investigation. Accordingly, the Court also found a violation of the procedural limb of Article 3 of the ECHR.

PROVISION

Article 3

PRINCIPAL FACTS 

The applicant, Mališa Jevtović, is a Serbian national who was born in 1974 and lived in Belgrade. He
is currently serving a prison sentence.

The case concerned his alleged ill-treatment by prison guards, which he argued had amounted to
torture.

Mr Jevtović was arrested in 2005 on charges of committing sexual acts against a three-year-old girl
which led to her death. He was convicted in 2009 and sentenced to 40 years’ imprisonment, which
was upheld on appeal in 2011.

During his pre-trial detention in Belgrade District Prison from 2005 to 2011 and in Požarevac-Zabela
Correctional Institution between 2011 and 2013 there were four incidents in particular – on 11 June
2007, 18 December 2009, 22 December 2011 and 24 December 2011 – when he alleged he had
suffered injuries.

In each case prison guards used force, including rubber truncheons, on the applicant. The prison
authorities found in relation to the first three incidents that the guards had used justified and lawful
force to subdue the applicant, either after an argument with another prisoner or because he had
refused to obey prison regulations.

The fourth incident was not registered in any official records but was recorded by the Ombudsman
after visiting the applicant and hearing his complaints. The prison was not able to identify with
certainty how the applicant had been injured in that incident.

The applicant lodged a constitutional appeal in September 2011. The Constitutional Court found in
July 2013 that the applicant had suffered a violation of his right to his physical and mental integrity,
both because of actual harm and the lack of a proper investigation, in all four incidents. It awarded
him 1,000 euros (EUR) in respect of non-pecuniary damage and ordered that the official
investigation into the incident of 24 December 2011 be expedited.

Relying on Article 3 (prohibition of torture and of inhuman or degrading treatment) of the European
Convention on Human Rights, the applicant complained of being ill-treated by prison guards and in particular that he had been tortured in the four incidents. He also complained under the same Article of the lack of an effective official investigation.

THE DECISION OF THE COURT 

Τhe Court notes that the Constitutional Court itself never required the applicant to exhaust the civil claim referred to by the Government before ruling on the applicant’s appeal. Furthermore, having already made use of the constitutional appeal procedure, wherein violations could be found and compensation awarded by the Constitutional Court, the applicant was clearly not required to pursue yet another avenue of potential redress, civil or otherwise, after that. In those circumstances, the Court considers that the Government’s objection to the effect that the applicant had failed to exhaust domestic remedies, within the meaning of Article 35 § 1 of the Convention, must be rejected.

The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation. The Court has confirmed that even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned . The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 .

According to the Court’s settled case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.

Τhe present case

The Court observes that on 10 July 2013 the Constitutional Court found a violation of the applicant’s right to the inviolability of his physical and mental integrity (as regards both its substantive and procedural aspects), a breach equivalent to a violation of Article 3 of the Convention in respect of the incidents of 11 June 2007, 18 December 2009, and 22 and 24 December 2011, and awarded him EUR 1,000 for the non-pecuniary damage suffered. In these circumstances and in view of the extensively documented facts of the present case the Court finds that it has been established that the applicant had suffered ill-treatment at the hands of State agents, specifically “inhuman treatment” as characterised by the Constitutional Court.

In view of the foregoing, the Court finds that as a consequence of the applicant’s inhuman treatment there has been a violation of the substantive aspect of Article 3 of the Convention.

Procedural aspect of Article 3 of the Convention

The Court notes that, after the respondent Government were notified of the case, the applicant repeated other complaints initially made under Article 3 of the Convention, notably concerning his alleged ill-treatment on a number of other occasions, as well as the subsequent lack of an effective official investigation in this regard.

The Court reiterates that where a person makes a credible assertion that he or she has suffered treatment contrary to Article 3 at the hands of State agents, that provision, read in conjunction with the States’ general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation .

1  Whatever the method of investigation, the authorities must act as soon as an official complaint has been lodged..

The Court has also held that the investigation should be capable of leading to the identification and punishment of those responsible .

Turning to the present case, the Court once again notes that on 10 July 2013 the Constitutional Court found a violation of the applicant’s right to the inviolability of his physical and mental integrity (as regards both its substantive and procedural aspects), a breach equivalent to a violation of Article 3 of the Convention, in respect of the incidents of 11 June 2007, 18 December 2009, and 22 and 24 December 2011, and awarded the applicant EUR 1,000 for the non-pecuniary damage suffered. In respect of the procedural aspect, it further found that the relevant authorities had failed to carry out an effective investigation in respect of the said four incidents and ordered – albeit regarding the incident of 24 December 2011 only – that the ongoing official investigation be expedited. There was hence, the Court would agree, never a criminal or another proper official investigation capable of leading to the identification and punishment of the applicant’s abusers regarding the incidents of 11 June 2007, 18 December 2009 and 22 December 2011, despite his credible allegations to the effect that he had been ill-treated by State agents. With respect to the incident of 24 December 2011, the Court also sees no reason, in view of the known facts of the case, to disagree with the Constitutional Court’s finding of a procedural breach of Article 3, particularly in view of: (i) the notable and unjustifiable lapse of time between some of the investigative steps; (ii) the overall duration of the investigation in question, which started on 14 March 2012 at the latest  and was still pending as of 4 July 2016, having thus lasted, by that time, for a period of some four years and three months in all; (iii) the unnecessarily repetitive nature of some of the those steps  (iv) the failure by the relevant authorities to attempt to carry out an exercise to allow the applicant to identify the prison guards despite the applicant’s repeated and ostensibly reasonable proposals in that connection and (v) the lack of transparency in terms of where, when and why video footage may or may not have been available. It is lastly the case that the domestic authorities had thus also failed to conduct an effective and meaningful investigation even after the adoption of the Constitutional Court’s decision of 10 July 2013.

In view of the forgoing, the Court finds that there has been a violation of the procedural limb of Article 3 of the Convention.

Violation of Article 3 (inhuman treatment)

Violation of Article 3 (investigation)

Just satisfaction: 4,000 euros (EUR) (non-pecuniary damage) and EUR 2,355 (costs and expenses)

 


ECHRCaseLaw

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