The ECHR found a violation of the requirements of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 3 of the Convention for the Protection of Human Ri Сведения: 2019-09-27 13:55:17

The ECHR judgment of January 15, 2019 in the case of Gjini v. Serbia (application No. 1128/16).

In 2016, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Serbia.

In the case, the application was successfully examined regarding the release of the authorities from the obligation to investigate the facts of violence among prisoners, despite the absence of a complaint demanding the initiation of a criminal case. The case contained a violation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.


Circumstances of the case


The applicant was detained on suspicion of attempting to pay a fee when crossing the border with a fake banknote of 10 euros. He was remanded in custody at Sremska Mitrovica prison for the duration of the investigation. Later, the banknote was recognized as genuine, and the criminal case was dismissed.

The applicant complained that during his detention he was subjected to ill-treatment by fellow inmates who threatened to pretend to commit suicide if he told anyone about what was happening. A few days after the applicant began to be detained, his lawyer noticed changes in the behavior of his client and demanded that the prison administration transfer the applicant to another cell. The applicant was transferred and the ill-treatment ceased. In a subsequent civil process initiated by the applicant after his release from prison, it was established that he suffered from post-traumatic stress during and after his detention. The applicant was awarded compensation.


QUESTIONS OF LAW


(a) The duty of the authorities to prevent ill-treatment or to neutralize the harm caused. The lack of direct involvement of state authorities in acts of violence corresponding to the severity level necessary for the applicability of Article 3 of the Convention did not exempt the authorities from their obligations under this article. The authorities were required to at least provide effective protection to persons under their jurisdiction, including taking the necessary measures to prevent ill-treatment, which the authorities knew or should have known.

Having regard to the conclusions of the Serbian courts in a civil case, the Court finds it proved that the applicant suffered from ill-treatment by his cellmates. According to the respondent Government, since the applicant had not filed a formal complaint, he could not be expected to be granted protection from the administration of the institution. However, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter - the CPT) reported violence between the prisoners of the aforementioned prison and regularly pointed out this serious problem both before and after the events concerning the applicant's case. The CPT noted a large number of cases of violence between prisoners and the absence of any action by the institution or authorities of Serbia aimed at rectifying the existing situation or reducing the number of cases of violence.

The prison officers should have noticed ill-treatment of the applicant, but they did not respond to any of the signs of violence, did not provide the applicant with a safe environment, nor did they identify, prevent, or monitor the cases of violence applied to the applicant.


RESOLUTION


In the case there was a violation of the requirements of Article 3 of the Convention (adopted unanimously).

(b) Lack of investigation. It was not disputed by the parties that there was no investigation into the applicant's complaints of ill-treatment by his cellmates. Thus, the Court was unable to establish whether the investigation into the applicant's complaints was effective. The question was whether the applicant’s lack of a formal criminal complaint prevented the authorities from conducting an investigation or did they relieve the authorities of the general obligation to investigate.

The Government knew or should have known about the ill-treatment of the applicant. No formal or factual circumstances prevented the investigation. Serbian law did not contain provisions that would prevent the prison administration or other authorities from reacting or initiating criminal proceedings. On the contrary, Serbian law provided for a clear obligation on all state bodies to report public prosecution crimes of which they became aware.

Failure to file a criminal complaint did not prevent the prosecutor from initiating a criminal case, and other authorities informed the prosecutor of suspected ill-treatment.

The lack of direct participation of state authorities in acts of violence corresponding to the level of severity necessary for the application of Article 3 of the Convention did not relieve the authorities of their obligations under this Article of the Convention. The Serbian authorities were obliged, at least, to provide effective protection to persons under their jurisdiction, including taking the necessary measures to prevent ill-treatment, which the authorities knew or should have known.


RESOLUTION


In the case there was a violation of the requirements of Article 3 of the Convention (adopted unanimously).


COMPENSATION


In application of Article 41 of the Convention. The Court awards the applicant EUR 25,000 in respect of non-pecuniary damage.

 

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