The non investigaton of the applicant’s allegations from the domestic courts regarding ill treatment during pre trial detention is unacceptable in behalf of the Court

JUDGMENT

Almaši v. Serbia  08.10.2019 (no.  21388/15)

see here 

SUMMARY

Ill – treatment, unreliable testimony and right to representation.

The applicant was arrested for illegal entry and of people smuggling.  At the preliminary investigation stage, he alleged that he had been ill- treated,  resulting in an unreliable testimony and complained that he was not allowed to contact his lawyer. The domestic courts did not examine his objection to the credibility of the deposition nor the alleged ill- treatment and held that he had been given the opportunity to have a lawyer  of his choice.

The Court recalls that, where a person makes a reasonable allegation or alleges that he has been treated in breach of Article 3 by public servants, that provision indirectly requires the existence of an effective official investigation and therefore concludes that the authorities of the responsible State have not acted effectively official investigation into allegations of ill-treatment. Accordingly, there has been a violation of Article 3 of the Convention in its procedural limb. On the contrary, it held that there was insufficient evidence to prove that it had been ill-treated, therefore there had been no violation of Article 3 of the prohibition of torture nor of Article 6 §§ 1 and 3 (c) of the Convention because it had not been shown that the applicant had been prevented to contact a lawyer of his choice.

PROVISIONS

Article 3,

Article 6§§ 1 and 3 (c)

PRINCIPAL FACTS

The applicant, Šandor Almaši, is a Serbian national who was born in 1979 and lives in Male Pijace
(Serbia).

The case concerned his alleged ill-treatment by the police and his complaint of a conviction on the
basis of a confession made under duress.

Mr Almaši was sentenced to one year in prison in September 2011 after being found guilty of
crossing the border illegally and of people smuggling, along with an accomplice.

During the domestic proceedings the defence alleged that Mr Almaši had been coerced into a
confession while in custody after being slapped by a police officer, that witness testimony against
him was unreliable, particularly an identification procedure, and that the appointment of a legal-aid lawyer during his police questioning had been irregular as he was not allowed to appoint his own
lawyer. The Constitutional Court rejected his final appeal in March 2015.

The applicant complained under Article 3 (prohibition of inhuman or degrading treatment) that he
had been ill-treated by the police and that no proper investigation into his allegations of
ill-treatment had taken place. He also complained under Article 6 §§ 1 and 3 (c) of a lack of fairness
in the criminal proceedings against him, in particular, that his conviction had been based on the
confession he had made in April 2011, itself obtained in breach of his right to legal assistance of his
own choosing.

THE DECISION OF THE  COURT

Article 3 ( research)

The applicant complained under Article 3 of the Convention of the police ill-treatment of 18 April 2011, and the respondent States subsequent failure to conduct an investigation into this incident.

The Court reiterates that where a person raises an arguable claim or makes a credible assertion that he has suffered treatment contrary to Article 3 at the hands of State agents, that provision, read in conjunction with the 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.

Turning to the present case, the Court considers that the applicants complaint of police abuse was such as to require an effective official investigation, it being noted that even where there is insufficient evidence to show that an applicant had in fact been ill-treated the procedural obligation to investigate may still arise, particularly when, such as in the present case, there is a potential for abuse in a detention context.

The Court furthermore notes that the applicant complained of having been abused by the police. He did so before the investigating judge and in the presence of a public prosecutor, as well as the trial and appellate chambers. Yet, despite the Convention and the domestic law requiring that an allegation of this sort be examined ex officio, no separate abuse-related investigation aimed at the identification and punishment of those responsible was ever instituted by the relevant authoritiesThe criminal case against the applicant, wherein he raised his abuse complaints in order to have some of the impugned evidence excluded, was certainly not capable of the latter.

Moreover, the criminal courts in the present proceedings did not investigate the alleged ill-treatment by refusing to examine two witnesses proposed by the applicant.

In the light of the foregoing, the Court concluded that the authorities of the responsible State did not conduct an effective formal investigation into the allegations of ill-treatment. Consequently, there has been a violation of Article 3 of the Convention in its procedural limb.

Article 3 ( ill treatment)

Turning to the present case, the Court notes that none of the persons who saw the applicant on 18 or 19 April 2011 and were also subsequently heard by the Court of First Instance stated that they had seen any injuries on his face. Furthermore, while the two officers who had allegedly abused the applicant could hardly be deemed as not having a personal interest at stake and the applicants own legal-aid lawyer might also have arguably had a defensive attitude, given the applicants subsequent complaints that she did not provide him with effective legal counsel, the same cannot be said, on the basis of the available evidence, of the investigating judge, who asked whether the applicant needed medical assistance on her own initiative and would, in any event, appear not to have been too far away to observe any traces of abuse on the applicants face had they been visible.

The Court also notes that the applicant was released from police custody on 19 April 2011 at around 3.35 p.m. On 20 April 2011, at about 9.00 a.m., he was examined by a medical doctor. The doctor found that the tissue around the applicants temple and left eye were slightly swollen and sensitive to touch, with no change in colour. The medical examination thus took place more than seventeen hours after the applicants release and did not pronounce as to the cause of the injuries. While the applicant had apparently been in good health at the time of his arrest there is, in these circumstances, no medical substantiation to the effect that he was injured at the time of his release (compare and contrast to, for example, Bouyid, cited above, § 79, where the delay between the applicants release and his medical examination had been significantly shorter – that is to say no more than two hours). Indeed, as noted by the Government, there is also no evidence that the applicants partner, L.F., had seen the applicant immediately upon his release from police custody. It cannot therefore be said that the burden of providing a plausible explanation as to how the injuries in question had been caused had shifted onto the respondent State.

Moreover, the said medical report was itself submitted to the Court of First Instance almost a month after the applicants examination and following his indictment, indicating a certain lack of urgency. The explanation offered for this delay by the applicant would also seem to be in contradiction with (i) the relative proximity between his own residence and that of his chosen lawyer and (ii) the available cheap means of transport referred to and documented by the Government.

 In view of the foregoing and particularly given that the investigation carried out by the Serbian authorities themselves had not fully clarified the relevant facts, the Court is unable to conclude that the applicant was ill-treated as alleged. There has, accordingly, been no violation of the substantive aspect of Article 3 of the Convention.

Article 6 §§ 1 and 3 (c)

The applicant also complained under Article 6 §§ 1 and 3 (c) of the Convention about the lack of fairness in the criminal proceedings that had been brought against him. In particular, he complained that his conviction had been based on his confession of 18 April 2011, which had itself been obtained in breach of his right to the legal assistance of his own choosing.

Turning to the present case, the Court notes that the applicant had only mentioned not being allowed by the police to use the phone, in order to retain the services of his private lawyer, in a hearing before the Court of First Instance, there being no reference to this in his first statement given to the investigating judge on 19 April 2011.

In this respect the Court would furthermore note that the record prepared during the search of the applicants home contains a note to the effect that the applicant was informed of his right to engage a lawyer who would be present during the search but that he declined to do so. While a waiver of the right to have ones lawyer present during a search at a point when one has still not been formally charged with anything does not amount to an unequivocal waiver in respect of ones right to have present a lawyer of ones own choosing during any subsequent questioning by the police relating to specific charges, it may nevertheless, depending on the context, be seen as a possible indicator of ones intent in terms of choice of counsel.

Regarding the applicants said questioning, officer T.L. stated that he had seen that the applicant, once he had already given his statement, call someone on the phone but that he did not know whom. This in itself, however, does not confirm the applicants allegation to the effect that he had not been allowed to use his phone prior to his questioning on 18 April 2011.

 On 20 July 2011 the Court of First Instance decided to exclude the applicants confession of 18 April 2011 from the case file on the basis that the official record prepared on that occasion did not contain an explicit statement by the applicant as to whether he wanted to hire private counsel or would instead be willing to accept a State-appointed lawyer. The reasoning of the Court of Appeal on 1 December 2011 in overturning this decision, however, was that regardless of any issues connected to the selection procedure the applicant had clearly accepted the appointment at the time, as evidenced by his cooperation with the said lawyer, his willingness to give a statement in her presence and the absence of any objections made in this regard on 18 April 2011. In this connection the Court would fully endorse the reasons offered by the Court of Appeal and would also note that the applicant himself had, in any event, not voiced, up to that point in time, his alleged wish to retain the services of a private lawyer.

In view of the available evidence, the Court cannot conclude that the applicant had in fact been restricted in his free choice of counsel, which then makes it unnecessary for it to address the issue of whether the fairness of the criminal proceedings as a whole was prejudiced in any way.

In these circumstances the Court finds that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention.

Just satisfaction: EUR 3,000 (non-pecuniary damage) and EUR 3,500 (costs and expenses).


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