The ECHR Ruling of March 11, 2021 in the case "Baranin and Vukcevic v. Montenegro" (aplications N 24655/18 and 24656/18).
In 2018, the applicants were assisted in the preparation of aplications. Subsequently, the aplications were combined and communicated to Montenegro.
The case successfully dealt with aplications of ill-treatment by police officers of the applicants who were in the immediate vicinity of a demonstration of political protest, which was organized by the opposition coalition, but in which they did not participate, and the failure to conduct an effective investigation into the fact of ill-treatment of the applicants. The case involved a violation of the requirements of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
In 2015, the applicants were beaten by unidentified officers of the Special Anti-Terrorist Police Unit (hereinafter - SAP). The applicants were in close proximity to a demonstration of political protest organized by the opposition coalition, which escalated into violence, but in which they did not participate. The Prosecutor's Office of Montenegro has launched an investigation into the incident, as a result of which the SAP commander was convicted of aiding a criminal after committing a crime. In 2017 The Constitutional Court of Montenegro found a violation of both the substantive and procedural aspects of article 3 of the Convention in connection with the event referred to in the present case. The applicants also initiated a civil case against the authorities and received a certain amount of compensation for non-pecuniary damage for their ill-treatment.
Regarding compliance with article 3 of the Convention.
(a) The limits of the case. In view of the findings of the courts of Montenegro on the violation of the substantive and procedural aspects of article 3 of the Convention, the compensation received in this regard, and especially in the light of the focus of the applicants' complaints on the continuing ineffective nature of the investigation in accordance with the procedural and legal aspect of article 3 of the Convention, it was unreasonable to continue consideration of the applicants' initial complaint in accordance with the substantive aspect of article 3 of the Convention. Consequently, the European Court limited its consideration of the present case to the procedural and legal aspect of Article 3 of the Convention.
(b) Effective investigation. The investigation conducted in the present case has led to clarification of some facts, in particular, that the applicants were indeed subjected to ill-treatment by SAP employees and received bodily injuries. It also led to the prosecution and conviction of the SAP commander. However, the European Court needed to make sure that the establishment of only a part of the relevant facts and the bringing to justice of only some of the perpetrators were not the result of an obviously insufficient and ineffective investigation conducted by the authorities. Since the Constitutional Court of Montenegro decided that the investigation conducted prior to the issuance of its decisions did not comply with the requirements of Article 3 of the Convention, the European Court analyzed the investigation conducted after the publication of these decisions.
The investigation was conducted and is still being conducted by the Prosecutor General's Office of Montenegro, which worked out most of the operational versions and interrogated most of the witnesses who could be found. However, the Prosecutor General's Office of Montenegro interrogated SAP employees involved in the incident, as well as a number of witnesses and potential witnesses only after the publication of the decisions of the Constitutional Court of Montenegro, that is, two years after the event. In other words, these actions were not carried out in the shortest possible time. In addition, the Prosecutor General's Office of Montenegro did not work out all operational versions, in particular, not all persons were interrogated and no contact was established with the Forensic Medical Examination Center. It was also not clarified whether only SAP employees were present at the scene that night. Of course, it is possible that none of these operational versions would have clarified additional details regarding the incident in question in the case, but this was not a sufficient reason for refusing to consider them.
The Prosecutor General's Office of Montenegro is institutionally and hierarchically completely independent from the Police Department and the Ministry of Internal Affairs of Montenegro. However, the Public Prosecutor was largely dependent on the police and turned for help to the Security Center and the Police Department, which were subordinate to the same official authorities as the officers under investigation, and therefore did not have proper independence. Although the police could participate in such investigations, it was necessary to provide sufficient guarantees to fulfill the requirement of independence, which was not done in the present case.
In accordance with the legislation of Montenegro, the applicants, as injured parties and their representatives, could attend the interrogation, inter alia, of witnesses in order to offer or directly ask them questions. In order for them to exercise this right, they had to be informed about the place and time of the interrogation, which, apparently, was not done.
The Montenegrin authorities argued that the applicants' complaint was premature, since the investigation had not yet been completed, but there was no information in the case file about what investigative measures, if any, had been taken after November 2017. The European Court recognized that a number of incidents and clashes had occurred on the same evening, including attacks in the relevant place, and security considerations required police intervention. However, even in cases where the events leading to the obligation to investigate take place in the context of general violence and investigators face obstacles and restrictions that force the use of less effective investigative measures or lead to a delay in the investigation, articles 2 and 3 of the Convention entail the need to take all reasonable measures to ensure an effective and independent investigation.
In view of the above, the investigation was not timely, thorough and independent and did not have sufficient control from the public. It had shortcomings that negatively affected the ability to identify the perpetrators, and after the decision of the Constitutional Court of Montenegro, insufficient efforts were made to eliminate these shortcomings or comply with the instructions of the Constitutional Court of Montenegro. The establishment of facts concerning the actions of the SAP commander and the application of sanctions against him could not lead to the conclusion that the Montenegrin authorities fulfilled their procedural obligations to conduct an effective investigation.
(c) Victim status. Despite the prosecution and conviction of the SAP commander, as well as the award of compensation to the applicants, the conclusion of the European Court regarding the continued ineffectiveness of the investigation even after the decision of the Constitutional Court of Montenegro means that the applicants have not lost their victim status.
The case involved a violation of the requirements of article 3 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded each applicant 7,500 euros in compensation for moral damage.