CASE OF ANDONOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1948 and lives in Kumanovo. He was a surgeon at Kumanovo Hospital.

On 17 September 2004 the applicant parked his car in a street in Kumanovo. After he returned, he found a notice of illegal parking under the windscreen wiper. He started his car and went looking for a police officer in order to discuss the issue regarding the ticket (the applicant alleged that there had been no sign there that parking was illegal). When he saw a police car he started following it until it stopped. Two police officers, M.A. and P.J., were inside the car. P.J. was a neighbour with whom the applicant was not on good terms. The parties presented rather conflicting versions of events as to what happened on that occasion. The Government’s account was based on the version of events which had been “correctly and fully established” by the national courts in the criminal proceedings against the applicant (see paragraphs 19-38 below).

While following the police car, the applicant signaled to it by flashing his lights. He did not sound the car horn. When he approached the police car, he addressed M.A. However, the two police officers started insulting him. P.J. said “I’ve been looking forward to this ...” P.J. opened the front passenger’s door “hard” and hit the applicant on the legs. Both officers left the car, grabbed the applicant by the shoulders and neck, and started punching him on the back. P.J. kicked and punched him all over the body. He was also hit on the back of the head. As a result, he slumped forward, which allowed P.J. to knee the applicant in the back, causing a fracture of two spinal vertebrae. M.A. also kicked him in the lower part of the back. He was then handcuffed, and while he was putting him into the police car P.J. kneed him in the lower back. During the incident, the applicant asked the officers to stop beating him, because he was in poor health: notably he had a weak heart and had had heart surgery. The incident was witnessed by many people. The applicant was then taken to Kumanovo police station, where the beating continued until he lost consciousness.

After an hour, an emergency ambulance was called, which took the applicant to Kumanovo Hospital. He was then transported to Skopje Clinic and subsequently to Skopje City Hospital, where he remained until 28 September 2004.

On 17 September 2004 Dr Z.T. from the Kumanovo Hospital examined the applicant and issued a medical report, which stated that the applicant had the following injuries: head contusion, concussion, bruises on the chest and back, and bruises on both arms. The medical report also noted that the applicant was in post-heart-attack condition, and that he had had heart surgery.

On the same day, an investigating judge of the Kumanovo Court of First Instance (“the trial court”) agreed to a request from the Ministry of the Interior (“the Ministry”) and ordered an external examination of the applicant’s body (телесен преглед). The order was issued in the context of criminal proceedings instituted against the applicant. The examination was carried out by the Forensic Institute (Институт за Судска Медицина). It took place on 18 September 2004, while the applicant was in Skopje City Hospital. As indicated in the medical report, the applicant stated that he had signaled by flashing his lights and had sounded the car horn to attract the police car’s attention so that it would stop; also that the police officers had beaten him up during his arrest and while they were taking him out of the police car to take him into the police station. The applicant further stated that he had been taken to the cardiology unit at Skopje Clinic and then, in a wheelchair (because he had numbness in his legs), to the emergency unit, where an X-ray examination was carried out on his chest, head and spinal column. He was then discharged from Skopje Clinic. Not satisfied, he went to Skopje City Hospital where, on admission, he complained of headache, other pain and nausea. During the examination by experts of the Forensic Institute, the applicant complained of pain in the back, head and chest. The report noted contusions on the applicant’s head, nose, chest, back, hip and both arms and legs.

According to a discharge notice issued by Skopje City Hospital, the applicant was hospitalised between 17 and 28 September 2004. It indicated that the applicant had sustained, inter alia, the following injuries: a compressive fracture of two vertebrae on the lower part of the spinal column as shown by the X-ray examination, concussion, head trauma and contusions on his back, right shoulder and wrist. According to the notice, the applicant had been examined in three hospitals, which had all established the same diagnosis and recommended that he be examined in that hospital. He was advised to remain in bed for four to six weeks. It was also indicated that the applicant was unfit to work.

On 8 February 2005 Dr Z.T. (see paragraph 9 above) issued, on the basis of available documentary medical evidence, a medical certificate indicating, inter alia, the following injuries: concussion; head trauma; fracture of two vertebrae; and contusions on the back, chest, and right wrist. In conclusion, the certificate stated:

“I think this is a serious bodily injury under the Criminal Code, with permanent reduction of the activities of daily living, as well as consequences of a permanent nature, which would certainly affect the victim’s capacity to work ...”

On 10 July 2006 the Forensic Institute submitted to the trial court another expert report that the investigating judge had requested in relation to the applicant’s criminal complaint lodged against P.J. and M.A. (see paragraphs 39-68 below). The Forensic Institute was required to give an opinion about the applicant’s injuries and the way in which they had been inflicted. The opinion was based on extensive medical documentary evidence from the medical examinations that the applicant had undergone between 17 September 2004 (in Kumanovo Hospital, the cardiology and emergency units of Skopje Clinic, and Skopje City Hospital) and 12 October 2005. The Forensic Institute concluded that:

“... on the basis of the medical evidence and the examination we carried out [the external examination of 18 September 2004, see above], [the applicant] sustained the following injuries in the fight with the two accused which took place on 17 September 2004: concussion, head trauma, bruises (and/ or lesions) on the nose; chest; hip; right shoulder, forearm and hand; left forearm, elbow and hand; right thigh and lower leg; left lower leg and fracture of the first vertebrae on the lumbar vertebral column ...

As a result of the injuries he had sustained (the applicant) was hospitalised between 17 and 28 September 2004. During this time he received conservative treatment.

The injuries that [the applicant] sustained ... to the head, body and extremities have been caused as a result of multiple dynamic impacts from a blunt object in the areas mentioned above, and these injuries represent, from the legal point of view, a bodily injury ... it can be concluded that the injuries sustained by (the applicant), notably concussion, vertebral fracture, contusions and bruises to the head, body and limbs, taken in view of their overall impact on the body of the victim, qualify as serious bodily injury that had a considerable, but not permanent, negative effect on vital parts of the body.”

On 8 October 2008 a private health institute, M., confirmed certain degenerative changes in the applicant’s spinal column, which were due to two vertebrae having been fractured.

On 19 September 2004 P.J. and M.A. submitted to the Ministry reports concerning the force used against the applicant. M.A. stated, inter alia,:

“... we were provoked by (the applicant), who used offensive language and kicked the police car ... he spat at us and used offensive language. We asked him to identify himself, but he continued to insult us. We tried to put handcuffs on him, but he resisted actively. He grabbed the fingers of my left hand and bit me. My colleague pushed him away and we handcuffed him.”

As regards the force used against the applicant, M.A. noted that “both arms were twisted and the applicant’s leg was kicked.”

P.J. stated, inter alia, the following: “both arms were twisted so that handcuffs could be put on, and when the colleague was bitten, (the applicant) was punched in the head”.

On an unspecified date, the applicant informed the Department for Control and Professional Standards within the Ministry of the Interior (DCPS) about the incident, and complained that he had been subjected to acts of police brutality. In a reply dated 17 December 2004, the DCPS informed the applicant that he had been reported as having assaulted a police officer on duty. P.J. and M.A., as well as S.H. and V.V., who had been eyewitnesses to the incident of 17 September 2004, were also interviewed. On the basis of evidence obtained from them, the DCPS established that the applicant had used offensive language against P.J. and M.A., had resisted arrest, and had bitten M.A. on the right thumb. As regards the force used against him, the report noted that this had concerned the twisting of his arms and the use of handcuffs, which, as determined by a superior in the Ministry, had been necessary and justified. Accordingly, the DCPS concluded that the police officers concerned had acted in accordance with the law and the rules of the Ministry.

On 18 September 2004 the Ministry lodged a criminal complaint with the Kumanovo public prosecutor, accusing the applicant of assaulting police officers in the course of their duties during the incident of 17 September 2004. The Ministry alleged that the applicant, after receiving a parking ticket, had started following the police car, sounding his horn and flashing his lights. After the police car had stopped, he had approached it and started insulting the police officers and kicking the car. The applicant did not comply with the orders of the police officers to calm down, and actively resisted when they tried to arrest him. The applicant also bit M.A. on the right thumb, which was a serious bodily injury. In respect of the thumb injury a medical report of 17 September 2004, signed by Dr M.D., was attached to the criminal complaint.

The complaint further stated that the applicant had been examined in Kumanovo police station by Dr Z.L., who had recommended he be sent to Kumanovo Hospital. It was further stated that the medical report of the Forensic Institute that the investigating judge had ordered on 17 September 2004 (see paragraph 10 above), medical reports issued by the cardiology and emergency units of Skopje Clinic, Skopje City Hospital, and medical reports attesting to the injury sustained by M.A., would all be submitted later. The Ministry further asked the court to hear oral evidence from S.H. and V.V.

Between 21 and 28 September 2004 the investigating judge heard oral evidence from the applicant, P.J, M.A., S.H., V.V., and Dr Z.T.

S.H. stated, inter alia, that:

“I know (the applicant), [at the relevant time] he was very upset and he was shouting in a loud voice ... I didn’t hear him use offensive language. The police (officers) left the car and asked (the applicant) to identify himself, but he did not produce any documents. The police officers tried to handcuff him, but he resisted ... I didn’t see the applicant bite the police officer. The police did not use force ... police officers managed to put handcuffs on the applicant, two pairs, they placed him on the rear seat and left. No force was used either by (the applicant) against the police or by the police against (the applicant). He was only resisting ... I emphasise that when I arrived, the door of the police car had been opened ... (the applicant) was not hitting the police car. Because there were a lot of people, I couldn’t see, and don’t know whether the applicant bit the police officer.”

V.V. stated, inter alia:

“... because the police officers were inside the car, (the applicant) started shouting and hitting the car. The police officers left the car and asked him to identify himself. He said that he was not in possession of an ID, and then the police tried to handcuff him. He started shouting ‘People, help me, look what the police are doing, I have heart problems’. They did not let him go, they managed to handcuff him with two pairs of handcuffs. They put him in the car and brought him to the police station ... there was no hitting on either side, just (the applicant) was shouting ... I didn’t see, and I was standing close by, the applicant bite the police officer.”

P.J. stated, inter alia:

“... (the applicant) was following us in his car ... he was sounding the car horn continuously and we stopped ... he was banging on the window and kicking the car ... when I opened the door, he spat at me and used offensive language ... M.A. got out of the car and asked him to identify himself. He continued shouting. Then I got out of the car. My colleague grabbed his left arm and twisted it behind his back ... then (the applicant) bit my colleague’s finger ... I grabbed (the applicant) and pulled him towards me ... he continued to kick my colleague; he kicked me as well ... I hit him with my lower arm, but not hard. We managed to handcuff him, he was resisting all the time ... when we placed him on the rear seat of the car, he was kicking, jumping, and moving from one side of the car to the other, because his hands were handcuffed behind his back. He constantly used offensive language, he was very arrogant, aggressive ...”

M.A. stated, inter alia:

“... (the applicant) bit me on the left index finger (показалец) ... P.J. punched him on the right shoulder and the back of his head, hard, so that there was no need for me to hit him ... then (after they had handcuffed him) I hit him on the left knee and we put him in the car ...(the applicant) was alone on the back seat and he was swaying from one side to another saying that he was ill, that he had had three heart bypasses ... (the applicant) used offensive language against P.J. ... when I left the car, he kicked me on the thigh ...”

The applicant stated, inter alia:

“... I note that while driving (following the police car) I flashed my lights to get (the police car) to stop, and I sounded the car horn ... P.J. opened the door, which hit me on the knees, and when both [P.J. and M.A.] got out of the car they started hitting me on the neck and shoulder ... I was hit in the chest ... they kicked me all over my body, when they handcuffed me and wanted to push me on to the back seat of the car, one of the police officers said that he had hurt his finger - it seems that he caught his finger in the handcuffs when they tried to put them on me. I didn’t bite him, and a bite cannot provoke a fracture. ... while I was inside the car, they hit me on the legs. When we got to the police station, they literally dragged me ... and started punching me on the back and kicking me ... they put me in a room with my hands tied and they hit me. In that room, I was hit very hard, as a result of which I fell down and lost consciousness ...”

Dr Z.T. stated that the available medical evidence indicated that M.A. had a bite wound and a fracture of his left thumb. He further stated:

“It is possible that the bite did not cause the fracture, because the typical cause of that type of fracture is a fall on to the finger or a blow.”

On the basis of the available evidence, the investigating judge opened an investigation regarding the applicant, but refused to remand him in custody, finding that the applicant could not interfere with the investigation. He noted that the applicant was in poor health, notably that he had had heart surgery, and that two doctors had indicated that the applicant had sustained concussion and a fracture of the spinal column.

On 9 November 2004 the public prosecutor indicted the applicant for assault on a police officer in the course of his duties. On 15 December 2004 the applicant objected to the act of indictment, denying that he had assaulted the police officers, hit the police car or used offensive language towards them. He stated that he had been severely beaten in the incident for no reason, and that he had sustained bodily injuries which were confirmed by medical evidence.

On 15 November 2004 the public prosecutor requested information from the DCPS as to whether there had been any internal inquiry regarding the use of force against the applicant.

On 14 January 2005 the DCPS replied that the force used against the applicant during the incident of 17 September 2004 consisted of twisting his arms behind his back and using handcuffs to subdue him. It also forwarded a copy of the report in which the use of force had been regarded as justified by a superior within the Ministry. Copies of written statements by S.H. and V.V., made to the police on 17 September 2004, were also attached.

At a hearing held on 1 June 2005 before the trial court, the applicant stated, inter alia:

“... when the police officers handcuffed me, I did not resist ... after they took me into the police station ... P.J. punched me on the back of the head, which had also been done in front of the police station. I was also hit in the eye ... when I approached the police car at the critical moment I noticed that P.J. was sitting in the driving seat. When he opened the window I addressed the other police officer ... [when the trial judge brought the applicant’s attention to his statement given before the investigating judge as to which police officer he had addressed on that occasion, the applicant stated] what I’m saying today is true. The investigating judge probably did not understand what I had said and my health was poor and I was in a difficult psychological state ... During the incident, I neither saw that M.A. was injured nor did I hear him say that he had been injured. I did not take any physical action against him, nor did I assault him.”

On that occasion M.A. confirmed that he had been bitten on the left thumb, as he had stated before the investigating judge (see paragraph 24 above). He did not know why the record of his questioning before the investigating judge indicated differently. The applicant objected to M.A.’s statement.

During a hearing on 19 October 2005, the trial court rejected the applicant’s request for oral evidence to be taken from Dr M.D. (see paragraph 18 above) as to whether M.A. had sustained an injury to the left or the right hand. The trial court found that an examination of Dr M.D. would not contribute to the establishment of the truth, given that both the hospital records and the medical certificate recorded an identical diagnosis.

Following the hearing of 19 October 2005, the trial court found the applicant guilty of assaulting a police officer in the course of his duties, and sentenced him to five months’ imprisonment, suspended for two years. The court established that the applicant had used offensive language against P.J. and M.A. during the incident of 17 September 2004, and had kicked the police car. When P.J. had opened the door of the car, the applicant had spat at him. M.A. had asked the applicant to produce an identity card, which the latter had refused to do. Then M.A. had twisted the applicant’s arm to get him into the car. The applicant had bitten M.A. on the left thumb. P.J. had punched the applicant on the right shoulder and the back of the head, which had caused the applicant to release the thumb. The applicant had then been handcuffed with two pairs of handcuffs. The court also established that the applicant had continued to resist in the police car during his transfer to the police station, by kicking the interior of the car.

The applicant appealed, arguing that the evidence regarding the alleged injury sustained by M.A. was inconsistent; that the medical evidence attesting to the alleged thumb injury had been issued in respect of another person with a similar name to M.A., and that the expert evidence regarding M.A.’s alleged injury had been produced on the basis of photographs of the victim’s thumb, without M.A. being examined in person. Lastly, the applicant complained that the trial court had disregarded the medical evidence supporting the injuries that he had sustained in the incident.

On 24 March 2006 the Skopje Court of Appeal upheld the trial court’s judgment and confirmed the applicant’s conviction, finding no grounds to depart from the established facts and reasoning given by the trial court.

By decisions of 16 March and 5 May 2009 respectively, the trial court and the Skopje Court of Appeal dismissed the applicant’s request for reopening of the proceedings.

On 3 February 2005 the applicant lodged a criminal complaint with the State Prosecutor, charging P.J. and M.A. with several offences: physical assault, serious bodily harm, abuse of office, false testimony, and degrading treatment. On 8 February 2005 the complaint was transmitted to the Kumanovo prosecutor’s office for consideration.

On 16 February 2005 the applicant lodged a criminal complaint seeking an indictment of P.J. and M.A. by the Kumanovo public prosecutor for assault and serious bodily harm, as well as for abuse of office. He submitted that during the incident of 17 September 2004 he “had been brutally attacked, insulted and brutally beaten by P.J. and M.A. in the presence of hundreds of people on the street, as well as in front of and inside Kumanovo police station”. He also requested that evidence be obtained from S.H. and V.V. In support, the applicant submitted the medical certificate issued by Dr Z.T. on 8 February 2005 (see paragraph 12 above).

On 3 March 2005 the applicant asked the public prosecutor to examine the criminal complaint as soon as possible, together with all evidence that had become available during the investigation of the case. He further enquired why the public prosecutor had not initiated proceedings to have the police officers concerned suspended or fined.

On 11 March 2005 the public prosecutor contacted the emergency unit at Skopje Clinic to obtain information as to whether the applicant had undergone an X-ray examination, and if so whether the examination had revealed a spinal fracture. On 6 April 2005 the emergency unit replied that the X-ray examination report had been handed over to the applicant.

On 7 April 2005 the public prosecutor informed the applicant that the appropriate authorities had been consulted with a view to obtaining relevant information about the case.

The applicant further addressed the public prosecutor on three occasions, alleging obstruction and seeking to have appropriate measures taken.

On 20 May 2005 the public prosecutor contacted the director of the emergency unit of Skopje Clinic, asking for an official note to be drawn up by the doctor who had carried out the X-ray examination of the applicant as to whether that examination had revealed a double fracture of the spinal column and whether the applicant had sustained concussion or it had just been a subjective feeling of which he had complained. The letter further requested that the emergency unit submit copies of all relevant medical reports to the public prosecutor. The Government did not indicate whether the emergency unit of Skopje Clinic had complied with this request.

On 25 May 2005 the Kumanovo public prosecutor rejected the criminal complaint, finding no grounds that the accused had committed the alleged offences, namely aggravated bodily harm and abuse of office. In the decision, the public prosecutor relied on the statements of S.H. and V.V. given in the criminal proceedings against the applicant and the report of the DCPS of 14 January 2005 (see paragraph 31 above). This decision was served on the applicant on 30 May 2005.

In the meantime, without knowing about the rejection of his complaint, on 26 May 2005 the applicant informed the Kumanovo public prosecutor that all relevant evidence, including the discharge notice from Skopje City Hospital, the medical report of his outpatient examination carried out by the Forensic Institute on 18 September 2004, as well as the statements of the accused, the witnesses and the applicant, had already been brought to the attention of the public prosecutor.

On 7 June 2005 the applicant, represented by R.C., a lawyer practising in Kumanovo, informed the trial court that he would take over the prosecution as a subsidiary prosecutor, and applied to the investigating judge for an investigation against P.J. and M.A. The applicant described the incident of 17 September 2004 as follows:

“... when (the applicant) approached (the police car) ... P.J., who was in the driving seat, pushed the door open hard and hit (the applicant) in the lower part of both legs, then both accused left the car in order to arrest (the applicant). P.J. started punching and kicking (the applicant) all over his body, inflicting numerous injuries, the hardest blow being the one to the back of his head, which caused (the applicant) to lose consciousness and slump down. He was thus in a position that enabled P.J. to knee him in the back, as a result of which he sustained compressive fractures of (two vertebrae), while M.A. kicked him in the lower back. Then they handcuffed his hands behind his back and took him into Kumanovo police station, where they continued to beat him, as a result of which (the applicant) lost consciousness. Medical assistance was required, and (the applicant) was transported to Kumanovo Hospital, from where he was transferred to Skopje Clinic, where he remained for eleven days, following which he was a patient at home and was on sick leave for over five months.”

In support of the criminal complaint, the applicant submitted, inter alia, copies of the discharge notice from Skopje City Hospital and of the Forensic Institute report dated 18 September 2004, as well as of “other medical material”. He further requested the court to hear evidence from the accused, S.H., V.V., his wife and son.

On 11 July 2005 the trial court forwarded the criminal complaint and supporting documents to the public prosecutor for further consideration, given that the charges concerned serious injury, a crime which was subject to State prosecution. By letter on 14 September 2005 the public prosecutor informed the trial court that the Kumanovo prosecutor’s office had already examined and rejected the applicant’s criminal complaint against the accused, for lack of suspicion that they had committed the alleged offence. Similar information was forwarded on 14 October 2005 to the State prosecutor’s office.

In the meantime, on 12 September 2005, the investigating judge, after hearing oral evidence from the applicant, his wife and son and the accused, opened an investigation against P.J. and M.A. on account of reasonable suspicion that they had caused serious bodily injury punishable under the Criminal Code. On 29 September and 13 October 2005 the trial court dismissed appeals by the accused.

On 29 September 2006 the applicant, through his lawyer, submitted to the trial court a subsidiary indictment (супсидијарен обвинителен акт) accusing P.J. and M.A. of inflicting grievous bodily harm on him; this was supported by the Forensic Institute medical report of 10 July 2006 (see paragraph 13 above). In the indictment, the applicant reiterated that he had been beaten up by the accused when he had approached their car to discuss the issue of the parking ticket, and that the assault had continued inside the police station.

During a hearing held on 22 October 2007, Mr Z.J., a lawyer practising in Kumanovo, whom the applicant had meanwhile appointed to represent him in the case, stated that the applicant’s allegations of police brutality were supported by the medical report of the Forensics Institute, which designated the applicant’s injuries as serious. Since charges of serious bodily injury were subject to State prosecution, he asked for the case file to be transmitted to the public prosecutor for the latter to take over the prosecution. On the same date, the trial court contacted the public prosecutor’s office with a view whether it would take over the prosecution, which that office, by letter of 29 November 2007, refused to do.

On 31 January 2008 the trial court heard oral evidence from the accused and the applicant.

P.J. stated, inter alia:

“... we noticed that (the applicant) was flashing his lights ... and then he started sounding the horn ... the applicant started banging on the window of (the car) and kicking it ... he spat at me ... continued to use offensive language ... we asked him to produce his identity card ... (the applicant) started kicking me and M.A. ... there were people who obviously knew (the applicant), they approached him asking him to calm down, but he pushed them away, as he was not paying attention to them, his behaviour was ferocious ... at one moment (the applicant) pressed M.A. hard against the rear door [of the car] with his body ... and M.A. screamed loudly. I thought it was due to the pressure, but then I saw that M.A.’s thumb was in (the applicant’s) mouth ... I pulled (the applicant) hard towards me to get him away from M.A., and I tried to hit him with my right arm on the back of the head, but (the applicant) slumped forward and my fist and elbow slipped next to his head, which I cannot consider as a blow, but we specified it in our official records as such ... we handcuffed him with two pairs of handcuffs behind his back ...(the applicant) did not stop resisting and assaulting us, kicking us. Handcuffed behind his back, he leaned on (the car) again as before, throwing himself [at the car] and leaning on the car, he was kicking us, we managed to put him in the car with his back on the rear seat of the car. Then he started kicking out hard at the door of the car, and we couldn’t close the door. Then, he lay on the rear seat and hit his head against the other door. He did that intentionally ... the interior of the car was badly damaged. While he was hitting his head against the right rear door and kicking the left door ... [which] we managed to close, he continued kicking the front seats and intentionally banged his head against the front seats and ... the rear seats. When we were trying to arrest him we were aware of his age and tried not [to allow] him to hurt us or himself; we refrained from using more drastic means of coercion, despite the fact that we had batons and we were trained in restraint techniques .... Then we brought him to Kumanovo police station ... and during the whole time he was furiously agitated in the rear seat. Although he was handcuffed, he was banging his head and other parts of his body against the interior of the car ... I did not punch, kick or use any other force [against the applicant] except as I have described in my statement ... My colleague M.A. did not hurt (the applicant), he was just holding him by the arm.”

M.A. stated, inter alia:

“... My colleague P. and I got out of the car and I asked (the applicant) to produce a driving licence, an ID card or any other document bearing his photo. He continued using offensive language against us and kicked the car. At that moment I took out the handcuffs ... (the applicant) resisted, kicked the car ... jumped up at the car and us, he was acting, so to say, like a lunatic. At that time, my colleague and I did not use any other force apart from twisting his arms and using the handcuffs ... [while they tried to handcuff the applicant], he was moving constantly left and right and throwing himself against the car ... he was kicking the car and hitting his head against the roof of the car, we could hardly manage to put him on to the back seat of the car and close the door. From that moment and until we brought him into the police station ... (the applicant) was throwing himself to left and right inside the car ...”

In his statement, the applicant alleged that he had been beaten by P.J. and that M.A. had beaten him during his arrest and immediately before and after they had brought him into the police station. He further stated, inter alia:

“... (P.J. and M.A.) stopped the car ... until then, there was no ... communication with the police car, nor were any signals used... [after he was brought into the police station] it took about forty-five minutes before the ambulance arrived ... Then, they immediately transferred me to Kumanovo Hospital ... Then, from Kumanovo Hospital I was taken by ambulance to the cardiology clinic in Skopje ... a doctor instructed that I should be transferred to the surgical clinic in Skopje, because she had noticed bruises on my body ... then I was taken to the emergency unit ... they instructed that I should be taken to Skopje City Hospital. Police officers and inspectors accompanied me at all times ...”

On 19 February 2008 the State prosecutor inquired as to why the Kumanovo prosecutor’s office had refused to prosecute, given that the applicant’s injuries were designated as serious by the Forensics Institute. By letter of 7 April 2008 the Kumanovo prosecutor replied that the medical report of the Forensics Institute dated 18 September 2004 (see paragraph 10 above) had not designated the applicant’s injuries as serious. The medical certificate of 8 February 2005 by Dr Z.T. (see paragraph 12 above) had been drawn up much later than 17 September 2004, the date of the incident.

At a hearing on 12 November 2008 the applicant’s representative sought a definitive answer from the public prosecutor as to whether he would take over the prosecution. In that connection he stated that it was not an option but a duty of the prosecutor to step into the proceedings, given the fact that the alleged offence was subject to State prosecution. On 18 November 2008 the public prosecutor informed the court that for the same reasons as outlined in its letter of 7 April 2008 (see paragraph 58 above), it would not take over the prosecution against P.J. and M.A.

On 24 March 2009 the trial court held a hearing in the presence of the applicant, his representative, the accused and their lawyers. According to the court record of that date, signed by the trial judge and the clerk, the applicant stated:

“... I withdraw the subsidiary indictment of 20 September 2006 against the accused (Го повлекувам супсидијарниот обвинителен акт од 20 септември 2006 година провив обвинетите ...) ...”

On the same day the trial court stayed (запира) the proceedings, since the applicant had stated, in the presence of his legal representative, that he withdrew the subsidiary indictment.

The following day, on 25 March 2009, the applicant objected to the trial court’s decision to withdraw the indictment, and stated:

“... I, as a lay person (неука странка), did not understand what the judge asked me, so I said that I withdrew the indictment, since I considered that the prosecution should be taken over by the public prosecutor. I wanted to maintain that right, namely ex officio prosecution through the public prosecutor, given the fact that the case concerns serious bodily injury, an offence punishable under Article 131 (1) of the Criminal Code, which is prosecutable ex officio by the public prosecutor. I therefore ask the court to reinstate the proceedings and to decide on my subsidiary indictment.”

In submissions of 26 March 2009 before the trial court, the applicant contested the validity of the statement for withdrawal of the indictment. He stated, inter alia:

“... I underline that as a subsidiary complainant, I do not withdraw the subsidiary indictment of 20 September 2006 against the accused...

I believe that the prosecution should be taken over by the public prosecutor, I maintain the right [to seek] that the prosecution be taken ex officio because it concerns an offence of causing serious bodily injury ... because the perpetrators of the crime are officials who overstepped their duties.

For these reasons, I ask the court to reinstate the proceedings to their previous state and to continue to examine the subsidiary indictment.”

On 27 March 2009 the applicant complained to the Macedonian Bar about inactivity on the part of Mr Z.J., his legal representative, at the hearing of 24 March 2009, and asked the Bar to respond so that his case could be reinstated. He further stated:

“While I was explaining, specifically while I was complaining about the way in which the trial was being conducted, the trial judge wrote in the court record that I was withdrawing the subsidiary indictment. At that time, I emphasised that I disagreed with that decision noted in the court record. My representative, Mr Z.J., did not react at all to the decision noted in the record [although] I’m a lay person (неук во правото и законите).”

Submissions with similar contents were sent on 27 March 2009 to the State Judicial Council (Судски Совет).

On 11 May 2009 the applicant, who was no longer represented, appealed against the trial court’s decision, arguing that he had never withdrawn the indictment against the accused. He reiterated that his statement concerned, in substance, his determination that the prosecution should be taken over by the public prosecutor. He further argued that he had complained aloud to the trial judge about the contents of the minutes, but to no avail. He stated that “I am shocked by the flagrantly incorrect interpretation of my statement”.

On 24 September 2009 the Skopje Court of Appeal dismissed the applicant’s appeal as unsubstantiated, and upheld the trial court’s decision. Relying on the court record of 24 March 2009, the court concluded that the applicant, in the presence of his legal representative, had withdrawn the indictment against the accused. In such circumstances, the trial court had correctly decided to stay the proceedings. This decision was served on the applicant on 20 October 2009. The proceedings were accordingly finally concluded. On 29 June 2010 the Supreme Court rejected as inadmissible the applicant’s request for extraordinary review of the decision.

By a decision of 15 October 2009 the trial court ordered the applicant to pay the equivalent of 1,400 euros (EUR) for the legal representation of the accused and travel costs. The applicant did not appeal against that decision.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicant was born in 1949 and lives in Donji Milanovac.

He was employed by Ðerdap, a company in Kladovo (Ribarsko gazdinstvo “Ðerdap” – hereinafter “the debtor company”).

On 28 December 1998 the applicant was reassigned to a lower post by his employer. He was subsequently dismissed on 20 January 2000. These two decisions, taken by the company’s managing director, were upheld by its board of management.

On 18 February 1999 the applicant filed a civil claim against the debtor company; on 26 April 2000 he filed a separate claim seeking reinstatement to a suitable position, as well as the outstanding salary payments and social benefits.

On 19 June 2003 the Majdanpek Municipal Court (hereinafter “the Municipal Court”) ruled in favour of the applicant and ordered the debtor company to reinstate the applicant to a post which corresponded to his professional qualifications and to pay him specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 23 October 2003.

On 16 February 2004, 9 March 2004, 18 and 19 October 2004, respectively upon the applicant’s requests to that effect, the Municipal Court accepted the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs.

The Municipal Court provided the National Bank of Serbia (Narodna banka Srbije – “the Central Bank”) with the above-mentioned enforcement orders on 14 April 2004, 20 July 2004 and 11 November 2004, respectively.

It would appear that none of the above-mentioned enforcement orders have been enforced to date.

On 8 April 2010 the Central Bank informed the Zaječar Commercial Court of the suspension of the debtor company’s accounts for three years.

On 13 April 2010 the Commercial Court opened preliminary insolvency proceedings against the debtor company.

On 30 June 2010 the Commercial Court opened and closed the insolvency proceedings against the debtor company and that decision became final on 10 August 2010.

The debtor company was ultimately struck from the relevant public register on 31 August 2010.

The debtor company in the present case had been a socially owned company. In 1991 it was transformed into a limited company which remained mainly socially owned, and remained as such until it was struck off the register (see http://apr.gov.rs/, accessed on 1 December 2016).


CASE OF MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY

Preliminary objection dismissed (Article 34 - Victim);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

András Sajó;Angelika Nußberger;Dean Spielmann;Guido Raimondi;Helen Keller;Helena Jäderblom;Ineta Ziemele;Josep Casadevall;Krzysztof Wojtyczek;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Peer Lorenzen;Robert Spano;Vincent A. De Gaetano;Zdravka Kalaydjieva

Mustafa Tunç was born in 1946 and died in 2006. Fecire and Yüksel Tunç, born in 1952 and 1975 respectively, live in Istanbul. They are the father, mother and brother of Cihan Tunç, who was born on 20 November 1983 and died on 13 February 2004.

Cihan Tunç joined the army in August 2003 to perform his compulsory military service. The medical report drawn up prior to his conscription stated that there were no contraindications to his conscription. He was not known to suffer from any psychological disorder or any other specific problem.

On an unspecified date Cihan Tunç obtained the rank of corporal. Following a training exercise which ended on 31 November 2003, he qualified as a sergeant.

He was then assigned to the protection of a site belonging to the private oil company NV Turkse Perenco (“Perenco”), for which the Kocaköy central gendarmerie was providing security services.

On 13 February 2004, at about 5.50 a.m., he was injured by gunfire. He was one of the gendarmes on sentry duty and assigned to the guard post known as “tower no. 3”. The incident occurred at the guard post known as “tower no. 2”.

Cihan Tunç was transported to hospital immediately after the incident by sergeant A.A. and private M.D., accompanied by private M.S., who was the last person to have seen Cihan Tunç before the incident.

Cihan Tunç was pronounced dead shortly after arrival at Diyarbakır Military Hospital.

The military prosecutor’s office of the 7th Army Corps, located in Diyarbakır, was informed immediately after the incident and a judicial investigation was opened as a matter of course.

A few hours after the incident, a member of that office, military prosecutor E.Ö., went to the hospital to which Cihan Tunç had been admitted and was joined there, on his instructions, by a team of criminal investigation experts from the national gendarmerie. In addition, he sent another team to the scene of the incident and asked the Kocaköy (civilian) prosecutor to attend, in order to supervise the initial investigations and take any measures necessary to secure evidence.

On his arrival at the hospital, the military prosecutor ordered that an external examination of the corpse and an autopsy be carried out, under his supervision.

Several photos were taken of the corpse. The deceased’s clothing was removed and sent for laboratory analysis with a view to determining the distance from which the shot had been fired. Fingerprints were taken from the deceased and from M.S., who was the last person to have seen Cihan Tunç alive and could therefore have been involved in the incident. Swabs were also taken from their hands, to be checked for traces of gunpowder. Lastly, the deceased’s pockets were emptied and an inventory made of their contents.

The prosecutor then instructed forensic doctor L.E. to examine the body with a view to ascertaining the cause of death, and to make any observations he may have on the circumstances of the death.

The forensic doctor recorded the following findings: body height, 1.75 metres; the entry wound, with an abrasion ring, was on the right side of the neck, and the exit wound, measuring 4 x 2 centimetres, was on the left side of the back, under the lower edge of the shoulder blade. The forensic doctor noted no trace on the body of blows or violence. He stated that death had occurred following a haemorrhage caused by a bullet wound, and that the bullet had struck the trachea and left lung. He also mentioned that the shot had probably been fired at point-blank range (yakın atış). He based that conclusion on the presence of certain residue material. The relevant part of his report on this point reads as follows:

“No skin coloration due to a burn or smoke was observed on the right side of the face or on the neck area. Traces of gunpowder were noted only on the right side of the face, on the curve of the lower jaw.”

All of those observations were recorded in a document entitled “Record of the post-mortem examination and autopsy”.

The military prosecutor also questioned private M.S. and sergeant A.A. (see paragraphs 37-45 and 46-50 below), who had arrived at the hospital in the vehicle transporting Cihan Tunç’s body.

Simultaneously, a team of experts from the Diyarbakır national gendarmerie’s criminal investigation laboratory and the Kocaköy civilian prosecutor went to the site a few hours after the events, having received instructions to that effect from the military prosecutor in charge of the case.

According to the Kocaköy prosecutor’s report, the site had a total of six guard posts: a watchtower, known as the “high tower” and five sentry posts. The incident had taken place in an edifice measuring 2 x 2 metres, with a ceiling height of 2.33m and apertures placed 1.5m from the ground.

The report further noted that two unspent cartridges and a spent cartridge were found lying on the ground inside the sentry post. The ceiling had an impact mark which resembled that of a shot. Small pieces of cement debris from the ceiling were found on the floor, which was also spattered with large bloodstains.

The report also stated that a cursory examination of the deceased’s weapon, a G-3-type rifle which had been placed under lock and key pending the prosecutor’s arrival, indicated that it had been used a short time previously. According to the report, this weapon, as well as that assigned to private M.S., an MG-3-type rifle which seemed not to have been used, had been sent to a laboratory for scientific analysis.

Lastly, the report specified that a detailed record had been drawn up, two sketches drawn, photographs taken and a video recording made.

In accordance with usual practice, an administrative inquiry was carried out on the orders of the provincial gendarmerie commander, to shed light on the incident and draw any conclusions from it, with a view to ensuring that a similar incident did not occur again.

On an unspecified date the deceased’s body, escorted by Staff Sergeant V.Ç., was transported to Ankara, for transfer to Istanbul and release to the family. The Istanbul provincial gendarmerie directorate was asked to contact the family to make arrangements for the funeral.

On 16 February 2004 the gendarmerie’s criminal research laboratory issued an expert report (report no. 2004/90/chemical). That report indicated that analysis of the samples taken from the deceased’s hands and from M.S., using the so-called “atomic absorption spectrometry” technique, had revealed the presence of lead, barium and antimony on the deceased’s hands, and of barium and antimony on those of M.S. After noting that those elements were residues from the discharging of a weapon, the report pointed out that gunpowder residues contained micrometric particles which passed very easily from one surface to another and that those residues frequently migrated to the hands when first aid was administered.

The report also noted that the tests on Cihan Tunç’s clothes indicated that he had been the victim of a shot fired at point-blank range.

On 17 February 2004 the Diyarbakır national police criminal laboratory also issued its expert report (report no. BLS-2004/464), following ballistic tests carried out on the spent cartridge and on the two weapons found at the scene of the incident. The tests indicated that the two rifles were operating normally and confirmed that the spent cartridge came from Cihan Tunç’s weapon.

As part of the investigations carried out by the military prosecutor’s office and the gendarmerie’s internal inquiry, numerous servicemen were questioned on the day of the incident.

In his evidence to the military prosecutor, M.S. stated:

“Cihan arrived at the tower where I was on duty fifteen to twenty minutes before he was due to relive me, since that was where the handover was to take place... He told me that he was feeling down. When I asked him why, he answered ‘Forget it, mind your own business, you wouldn’t understand in any case’. His reply annoyed me, I had the impression he thought I was an idiot. I lit a cigarette and [Cihan] went into the tower ... he began playing with the cocking lever on his rifle. I came in and told him to stop ... He told me to mind my own business and go and have a cigarette ... At that point I went out ... I was five or six metres from the tower when I heard a shot. I ran inside. [Cihan] was lying on the ground ... his rifle was lying on his right hand and the barrel was on his shoulder. I removed the rifle and tried to revive [Cihan] by shaking him, blood had begun to flow... Sergeant A.A. arrived [with other soldiers]”.

In response to the prosecutor’s questions, M.S. replied that he had not had a dispute or a problem with Cihan Tunç, either during the duty shift or before it. He confirmed that he had not tried to remove the weapon from his hands at any point. He stated that he had not shot his fellow serviceman.

In reply to another question, he stated that, when Cihan Tunç loaded and then unloaded the weapon several times, he had seen unspent cartridges being ejected from the side of the rifle.

In the course of his interview with the gendarmerie’s internal investigator, he stated:

“Sergeant A.A. came past about 5 a.m., during his patrol, to carry out a check. Cihan Tunç arrived shortly afterwards, at about 5.50 a.m. ... he came into the tower sentry post and began to play with his weapon, he loaded and then unloaded it three or four times, and removed the magazine and put it back in. I asked him to stop, and said that we would both be punished if a senior officer were to come in unannounced... He stopped for a moment. I was standing seven or eight metres away from him. Then, [when] outside the post, I heard the noise of the cocking lever two or three times, followed by the sound of the weapon going off ... [Cihan] was lying on the ground, the weapon was on his chest. I tried to revive him. At that point, sergeant A.A. and the soldiers who were due to relieve us arrived. We carried Cihan close to the [oil] container, then we took him to Diyarbakır Hospital in a Renault car belonging to the Perenco company...”

To the question “how do you explain the fact that two unspent cartridges were found at the scene of the incident?” M.S. replied that he did not have an explanation. He added that perhaps these were cartridges which had fallen when Cihan Tunç was loading and unloading the weapon.

In response to another question, he said that he was unable to state if the magazine had been in the weapon at the time of the incident, since he had paid no attention to that point.

The investigator also asked M.S. about the positions of the weapon and Cihan Tunç. More specifically, he asked if the latter had been sitting or standing while he was manipulating his rifle. M.S. indicated that, while he was inside the post with Cihan Tunç, the latter had pointed the weapon towards the ceiling and charged it, and had then removed the magazine and operated the lever to eject the loaded cartridge. As he left the post, he saw Cihan Tunç sit down on an ammunition chest. While still outside, he heard the sound of the cocking lever a further two times, then a shot.

Lastly, the investigator questioned M.S. about the location of the weapons. According to M.S., his own rifle had been on a rack inside the post, and its tripod was folded. Cihan’s weapon had been on his chest.

In those two statements, the location where the incident took place is described interchangeably by the terms “duty station no. 4” (4 no.lu nöbet mevzisi) or “tower no. 2” (2 no.lu kule).

In his statement to the military prosecutor, sergeant A.A. indicated that he had heard a gunshot and, together with several privates, had rushed to the spot from where the sound had come. They found Cihan Tunç lying on the ground. After attempting to find the injured man’s pulse, A.A. ordered that he be transported to the canteen and then to hospital.

With regard to the guard posts, sergeant A.A. indicated that only three were in use. The first was situated at the entrance to the site (nizamiye); the second post, known as the “low tower”, although in reality located in fourth position from the entrance, was also known as “tower no. 2”, since the two preceding posts were not used. The third post was known as “tower no. 3” or the “high tower”.

A.A. also stated that, to his knowledge, there had been no problem between Cihan Tunç and M.S.

In reply to a question from the prosecutor, he repeated the account of the events given to him by M.S. This account corresponded to the statement made by M.S.

A.A. gave similar evidence to the gendarmerie’s internal investigator.

Captain S.D. and Staff Sergeant C.Y. indicated that they had become aware of the incident while they were in the Kocaköy barracks. On arrival at the scene, they inspected the premises in a very cursory manner, without disturbing the scene of the incident. They had seen a spent cartridge and two cartridges for a G-3 rifle, one on the ground and the other on the rack. They had also noted blood on the ground.

Sergeant A.K. gave the following evidence to the investigator:

“Cihan was on duty at post no. 2 ... During my round, at about 5.15 a.m.... everything was normal. I exchanged a few words with Cihan, who was on duty in the high tower... When I arrived at the scene of the incident, M.S. was trying to lift Cihan up.”

With regard to the position of the magazine, sergeant A.K. stated that he had paid no attention to that point at the time. However, he remembered that, after carrying Cihan to the canteen, private S.K. had gone back and brought him the weapon, and he had noticed that the magazine was not in place on the rifle.

To the question “why did the incident take place at guard post no. 4, where M.S. was on duty, although Cihan Tunç had been assigned to the high tower?” he replied:

“I don’t know. It is possible that Cihan left his post to go there because he was almost at the end of his duty period. When I did my round, at about 5.15 a.m., Cihan was at his post in the high tower.”

Private S.K. confirmed A.K.’s statement, indicating that the weapon and the magazine were inside the sentry post, but that the magazine was not in the weapon.

Private E.C. stated that when he arrived on the scene M.S. was attempting to lift Cihan Tunç up. He also confirmed that the magazine was not in the weapon.

The following additional elements emerged from the other statements: Cihan Tunç had arrived one week previously in the Perenco site protection team, which was composed of sixteen persons. He had no known problems and had not had a dispute with the other soldiers.

At the time of the incident, private S.S. had been the soldier on sentry duty at the first guard post, located at the entrance to the site.

After sergeant A.A. and the other servicemen arrived at the scene of the incident, M.S. was sent to the canteen to seek help.

Having regard to the absence of family, social or psychological problems on the part of the deceased, the fact that he had been at a guard post assigned to one of his fellow servicemen and to the position and distance (point-blank range) of the shot, the inquiry concluded that the incident had been an accident. It seems, however, that the possibility of unlawful killing was considered at the beginning of the inquiry.

On 30 June 2004, holding that there were no grounds for finding that another person had been responsible for Cihan Tunç’s death, the prosecution service issued a decision not to bring a prosecution. The prosecutor set out all of the evidence gathered during the investigation. He concluded that the shot had been fired when the young man, with his chest bent, had been leaning towards his right side and the barrel of the rifle was pointed towards his neck, adding that this explained, in particular, the bullet impact on the ceiling. However, the prosecutor’s decision did not state why the shot had suddenly been fired.

On 16 July 2004 the prosecutor, in response to a request from the applicants’ lawyer, sent her a letter and a copy of the decision, indicating that, in application of the Lawyers Act, the entire case file was at her disposal, and that she could examine it and have a copy made of any item of evidence she thought it appropriate to obtain.

Furthermore, a copy of the decision not to bring a prosecution was served in person on Aysel Tunç, a sister of the deceased, on 27 July 2004.

The applicants appealed against the decision, alleging that several grey areas remained as to the circumstances of Cihan Tunç’s death. In particular, they claimed that the trajectory followed by the bullet had not been clearly defined. They did not refer to the fact that M.D. had not been questioned, or that no fingerprint tests had been conducted on the weapon.

On 14 October 2004 the military court of the Diyarbakır 2nd Air-force Corps upheld the applicants’ appeal and ordered the prosecution service to carry out an additional investigation. In particular, it considered that the bullet’s trajectory and the firing position needed to be clearly established, on the basis of the entry and exit wounds on the body and the impact mark of the bullet on the ceiling. It also indicated that no plausible grounds for suicide had been identified. It added that, in any event, the position of the body at the time of the shot had been unusual for a suicide. Lastly, it stated that no explanation had been provided for the gunshot residue on the hands of M.S., the last person to have seen Cihan Tunç before the incident.

On 24 November 2004 the military prosecutor visited the Perenco site, accompanied by three criminal investigation experts.

The group went to the guard post where the incident had taken place. Once all of the materials in the case file had been examined, a reconstruction of the events was carried out, assisted by an individual who was similar in build to the deceased.

Steps to determine the bullet’s trajectory were taken, including the use of a string, stretched between the impact mark on the ceiling and the barrel of a G-3 rifle. Photographs were taken.

The experts noted that the floor was made of concrete, although the previous records described an earthen floor. According to information provided by the site managers, various premises, including several dirt tracks, had been cemented over since the incident, with a view to keeping the soldiers’ uniforms clean. The floors had not been raised during this work. This point was confirmed by measurements which established that the ceiling height was still 2.33 metres, as it had been at the time of the incident.

In the light of all the evidence gathered, the experts reached the following conclusion: Cihan Tunç had been sitting or crouching and was holding his rifle in his right hand; while he was attempting to stand up by leaning on his weapon, and with his knees still bent, his hand had pulled the trigger and the shot had been fired.

During his visit to the site, the prosecutor questioned private E.C., the other soldiers on duty at the time of the incident having completed their military service. E.C. stated that, when he arrived, M.S. was crouching down behind Cihan Tunç and was trying to lift him up by pulling him under the arms.

All of this evidence was set out in a report dated 24 November 2004.

On 8 December 2004 the prosecutor completed the investigations and sent the file to the military court, together with a report on the additional investigation requested (report no. 2004/632E.O), in which he set out the measures taken and responded to the shortcomings noted by the court. With regard to the traces of gunshot on the hands, he pointed out that the file contained an expert report indicating that gunshot residue was very volatile and that it could have moved from the dead man’s clothes or hands to M.S.’s hands immediately after the incident. He added that several statements supported that hypothesis, in that they confirmed that M.S. had been in physical contact with the deceased when attempting to lift him up.

With regard to the court’s observation that the firing position hardly corresponded to that of an individual who intended to commit suicide and its argument about the lack of a motive, the prosecutor stated that the decision not to prosecute contained no indication that the incident had been a suicide and, indeed, that the hypothesis of suicide had not been entertained.

As to determination of the bullet’s trajectory in the light of the impact mark on the ceiling and the entry and exit wounds on the body, the prosecutor stated that the following hypothesis had been accepted: Cihan Tunç had been sitting on an ammunition box and playing with the rifle’s cocking lever and magazine; while he was holding the weapon, with the magazine removed and at an angle on his right side, he had leaned forward and towards his right side with the intention of using the rifle to support himself in standing up, his hand on the part of the weapon near the trigger, and the shot had gone off; the bullet had entered through the right side of his neck and emerged under the lower edge of the left shoulder-blade, before hitting the ceiling; thus, Cihan Tunç had not committed suicide, he had been the victim of an accident. The prosecutor added that he had organised a reconstruction of the scene on 24 November 2004 in order to ascertain the credibility of this hypothesis, having regard to the bullet’s entry and exit points, the point of impact on the ceiling and the deceased man’s build, and that the conclusions of the reconstruction confirmed this sequence of events.

The record of the reconstruction of the incident was attached to this report.

On 17 December 2004 the military court dismissed the applicants’ appeal.

A letter dated 21 December 2004 was sent to the applicants’ lawyer, informing her of that decision. Neither the date of posting nor the date of receipt of that letter is specified in the case file. The applicants submitted that they had received the letter in question at the end of December 2004. The Government made no submissions on this point.

The applicants submitted a private medical report, prepared at their request by a British expert, Dr Allen M. Anscombe, and dated 11 October 2005. The expert drew up his report in English, on the basis of his examination of a number of documents from the case file which had been translated into that language. The relevant parts of this report read as follows:

“I am a Consultant Forensic Pathologist, accredited by the Home Office Policy Advisory Board for Forensic Pathology (...).

In preparing this report I have been provided with English translations of the following documents relating to Cihan Tunç:

The Inquest and Autopsy Report dated 13th February 2004.

Preparatory investigation report document number 2004/632EO entitled “Widening of the Investigation”.

Two expert reports dated 16th and 17th February 2004, reference numbers ELS-2004/464 and 2004/90 Chemical.

Three colour images of the deceased, one taken in life and two taken post mortem, when the deceased is apparently within a coffin.

An image of a G-3 rifle.

The deceased was taken to a nearby Military Hospital and the autopsy examination carried out later on the day of his death. Such promptness should be regarded as a good practice.

Initial examination then appears to involve removing the clothing from the deceased and the photographing it, collection of samples for forensic laboratory investigation, and recording detail content of pockets, etc.

In itself, this process appears to have been carried out appropriately, with collection of appropriate samples given the nature of the incident.

Having completed this stage, the [autopsy] report appears to indicate that the pathologist Dr. E. was ‘called in’, by which I understand had his first opportunity to examine the deceased.

If my understanding is correct, this would cause me some considerable concern because, particularly in the case of shooting fatality, the pathologist should be given as much information as possible as regards the scene and state of the deceased, the latter including the opportunity to inspect and examine the undisturbed clothing.

The remainder of the details of the autopsy examination are somewhat brief and sketchy.

Otherwise, the essential autopsy examination findings are included in the report. The conclusion as to the cause of death is reasonable in the light of the stated autopsy findings (i.e. there are no internally inconsistent findings and conclusions).

Cihan Tunç sustained a gunshot entry wound to the front side of his neck, and an exit wound on the back of the left shoulder. The photographs demonstrate a small entry wound, and a larger exit wound, and there is in my opinion no possibility that entry and exit have been got “the wrong way round”.

If the bullet has passed through the deceased and embedded itself in the ceiling, then the only way that I can conceive this trajectory of being achievable, is if the deceased was bent over the moment the gun discharged.

The autopsy report indicated that traces of unburned gunpowder were found on the right side of the face and on the curve of the lower jaw, but there was no smoke staining or burning of the skin. This indicates that the muzzle end of the barrel was close to but not in contact with the skin of the deceased. Whilst such discharge deposits depend to some extent on the nature of the weapon and ammunition used, the likely range of fire (i.e. muzzle to skin distance) would be in the region of 15-30 cm.

I am informed that the length of a G3 rifle, believed to be the sort used by the deceased, is 102.3cm. From the image provided, the trigger is approximately two thirds of the length of the rifle away from the muzzle. Depending on the length of the deceased’s arm, the trigger might just be reachable (say with an outstretched finger), if he was bent over the rifle at the time.

The only two other possibilities I can think of are that either the rifle malfunctioned and discharged unexpectedly for some reason (e. g. it was dropped on the floor, or that the rifle was fired by another person – however, this would require that person to be lying on the floor pointing the rifle upwards with the deceased bent over the muzzle (his neck at a distance of 15 – 30 cm) at the time.

There were no autopsy signs that the deceased had been involved in a struggle or a fight.”

On 13 January 2005 the applicants’ lawyer brought an action before the Supreme Military Administrative Court, seeking payment of pecuniary compensation on account of Cihan Tunç’s death.

Following the dismissal of the notice of claim on procedural grounds, a new claim was lodged on 9 September 2005. The applicants claimed 3,500 Turkish lira (TRY) in respect of pecuniary damage and TRY 3,000 in respect of non-pecuniary damage for each of the parents, and TRY 1,000 for each of the deceased’s seven brothers and sisters.

On 9 October 2006 the expert appointed by the Supreme Military Administrative Court to evaluate the pecuniary damage submitted his report. He estimated the damage at TRY 721 for the deceased’s father and TRY 8,779 for his mother. The parties did not challenge that evaluation.

On 10 January 2007 the court allowed the applicants’ claims in part. It noted that the death had been caused by careless handling of the service rifle. It considered that this implied a lack of sufficient training in handling weapons and negligence in the supervision and protection of conscripts. In consequence, it found that the death was partly imputable to negligence by the authorities. Having regard also to the existence of contributory negligence by the deceased, and pointing out that it was bound by the claim and could not rule ultra petita, the Supreme Military Administrative Court awarded the following sums:

- TRY 3,500 in respect of pecuniary damage and TRY 3,000 in respect of non-pecuniary damage to the deceased’s mother;

- TRY 400 in respect of pecuniary damage and TRY 1,000 in respect of non-pecuniary damage to the deceased’s father;

- TRY 1,000 in respect of non-pecuniary damage to each of the deceased’s brothers and sisters.

Those amounts bore late-payment interest, to be calculated from the date of the incident to the date of payment.

On 12 June 2007 the authorities made a payment of TRY 23,500 (approximately 13,200 euros (EUR) on that date) to the Bakırköy Enforcement Office, to which a request had been made by the applicants’ lawyer.

The applicants claim that they had been unaware of those proceedings before the Supreme Military Administrative Court until they were mentioned by the Government, and that no sum has been paid to them by their lawyer.

On 21 April 2004 the Mehmetçik Foundation, an emanation of the armed forces which was set up to support the families of soldiers who die in service, awarded 4,916,700,000 former Turkish lira (a little over 3,000 euros at that date) to the deceased man’s family in financial assistance.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1970 in Armenia. Until his arrest in 2008 he lived in Kurgan, Russia. On 20 September 2012 the Sverdlovsk Region office of the Federal Migration Service ordered his deportation to Armenia. It seems that the deportation order was executed on 11 October 2012.

On 3 August 2008 the applicant, while under the influence of alcohol, took a car without the owner’s consent and crashed into a tree. As a result of this accident he sustained multiple injuries, including a thighbone fracture, a dislocated hip and facial wounds.

The applicant was taken by ambulance to Kurgan Town Hospital where he was admitted to an intensive care unit. He was connected to a medical ventilator and subjected to emergency anti-shock treatment. The doctors sutured his wounds. A metal pin for skeletal traction was inserted through the heel bone of his broken leg and the applicant was placed in a special metal frame with weights attached to his injured leg.

Several days later his condition improved and he was transferred to a trauma department, where he remained bedridden in a skeletal traction frame. Osteosynthesis surgery was to be performed in due course.

On 6 August 2008 the police opened a criminal case into car theft.

It appears that during the investigation the authorities learned that the applicant was wanted by the authorities of the Republic of Belarus for a murder allegedly committed in 2003 in Minsk.

A police investigator asked the attending doctor whether the applicant could be discharged from hospital and transferred to a detention facility.

On an unspecified date the doctor informed the investigator that the applicant was in need of inpatient treatment on account of multiple injuries, including facial injuries, a dislocated hip and a thighbone fracture. Citing the seriousness of his condition the doctor noted that the applicant could not be transported to a court or police station. The doctor stated that police detention centres and remand prisons in Kurgan were unable to ensure the appropriate medical care to the applicant.

On 8 August 2008 the investigator reported the content of the above letter to his superior.

Four days later, upon a request from an investigator, a medical expert commenced an examination of the applicant to assess the seriousness of his injuries. Without informing the hospital administration and without having received the results of the expert examination, the police arrested the applicant and took him to remand prison no. IZ-45/1 in Kurgan. It does not seem that any special arrangements for the applicant’s transport were made.

It was noted in the expert report completed on 3 September 2008 that the applicant’s injuries were of “medium” seriousness.

On 13 August 2008 the Kurgan Town Court, at the request of the Kurgan prosecutor and in the absence of the applicant, ordered his detention pending the receipt of an extradition request from the Belarusian authorities. That ruling was based on Article 466 of the Code of Criminal Procedure of Russia (“the CCrP”) and Article 61 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”).

On 21 August 2008 the Kurgan Regional Court quashed the order of 13 August 2008 in view of the applicant’s absence from the hearing before the Town Court. The Regional Court remitted the issue for fresh consideration.

A week later, this time after hearing evidence from the applicant, the Town Court, on the basis of the same legal provisions, ordered his detention until receipt of the extradition request from the Republic of Belarus.

On 4 September 2008 the Regional Court upheld the applicant’s detention on appeal.

According to the applicant, only on 14 October 2008 did the Prosecutor General’s Office inform the competent Belarusian authorities of the applicant’s arrest.

The General Prosecutor of the Republic of Belarus requested the applicant’s extradition.

On 25 August 2009 the Russian Prosecutor General’s Office ordered the applicant’s extradition to stand trial in Belarus.

According to the applicant, in March 2010 he was extradited to the Republic of Belarus.

On 23 March 2010 the Belarusian authorities closed the criminal case due to the absence of corpus delicti in the applicant’s actions. He was then returned to Russia.

In the meantime, on 29 August 2008, in the context of the criminal investigation into car theft, the Kurgan Town Court ordered the applicant not to leave Kurgan.

On 23 September 2008 the Town Court changed the measure of restraint to detention pending investigation. The decision was based on the seriousness of the charges, the fact that the applicant had been on the run and had no permanent residence in Russia. The Regional Court upheld that detention order on appeal.

On 22 November 2008 the Town Court extended the applicant’s detention until 5 December 2008, citing the seriousness of the charges and the lack of a permanent residence in Russia.

On 4 December 2008 and 4 January 2009 the Town Court again extended the applicant’s detention until 5 and 30 January 2009, respectively. In addition to the previously employed arguments, the detention orders were held to be justified by the necessity to complete the investigation. The latest detention order was upheld on appeal by the Regional Court on 15 January 2009.

On 27 March 2009 the Kurgan Town Court convicted the applicant of car theft and sentenced him to four years’ imprisonment in a correctional colony.

On 26 May 2009 the Regional Court upheld the conviction and sentence, but amended the type of the detention facility where the applicant was to serve his sentence to a settlement colony.

It is clear from entries made by civilian doctors in the applicant’s medical history on 12 August 2008, the day of his arrest, that he was in satisfactory health; his body temperature, which had fluctuated for several days, was 37.7˚C; the pain syndrome was decreasing; his stitches were dry; and no signs of inflammation were present. The metal pin remained in his leg. In the discharge summary drafted on account of the applicant’s arrest, “continued medical treatment” and crutches were prescribed. The attending doctor explicitly noted that the patient had been taken from the hospital without the consent of the chief doctor.

On admission to the remand prison the applicant was examined by a feldsher (medical assistant), who recorded the visible bodily injuries. No medical tests were performed and no treatment was prescribed. The applicant was not provided with any mobility aid devices, such as a wheelchair, crutches or a walking stick.

It was not disputed by the parties that the next day the applicant had been placed in a cell designed to accommodate a maximum of four inmates. The cell measured 15.4 sq. m. On 13 August and between 15 and 19 August 2008 the applicant had to share that cell with seven other inmates, with each inmate thus having no more than 1.9 sq. m of floor space. Several inmates, including the applicant, had no places to sleep.

According to the applicant, in the remand prison he experienced a leg pain, nausea and loss of consciousness.

Medical entries show that the applicant was seen by a prison doctor for the first time on 18 August 2008, in response to his complaints of pain, nausea and vertigo. After a visual examination, the doctor ordered the transfer of the applicant to Regional Anti-Tuberculosis Prison Hospital no. OF-73/1 in Kurgan (“the prison hospital”) “for treatment and skeletal traction”. The transfer was performed the next day.

In the prison hospital several medical tests were performed. Owing to technical problems the applicant could not undergo an X-ray examination of his legs ordered by a doctor. He was seen by a surgeon and a neurologist.

The surgeon, having considered the time that had passed from the termination of the skeletal traction, removed the metal pin from the applicant’s leg. A walking stick was prescribed.

The neurologist diagnosed the applicant with vegetative-vascular dystonia and prescribed a month-long drug regimen.

The applicant was discharged from hospital on 27 August 2008 in a “satisfactory condition”.

The medical documents in the Court’s possession cover the period up to 21 May 2009. They show that at that time the applicant was seen by the prison doctor on account of his chronic peptic and liver conditions. It does not appear that he underwent any medical examination or treatment related to the leg condition.

As to the conditions of the applicant’s detention during that period, the Government submitted that the applicant had been transferred between several cells of the remand prison, some of which were overcrowded. In particular, between 30 September and 8 October 2008, between 26 January and 19 March, 24 March and 10 April, 11 April and 2 June 2009 the applicant was afforded less than 2.7 sq. m of floor space, and occasionally less than 2 sq. m. According to the applicant, the cells were poorly ventilated, had non-partitioned toilets and were infested with bugs, mice and lice.

On 2 June 2009, the applicant was sent to serve his sentence in a settlement colony. He was released on 22 September 2012, after having served his sentence in full.

According to him, he continued to walk with a limp after the release, because the broken leg had knitted in a wrong position.