Death in police custody or in detention
II. RELEVANT DOMESTIC LAW 64. Pursuant to Article 166 (1) of the Code of Criminal Procedure, where the investigator considers the investigation into a case to be completed and where the results of such investigation justify the filing of an indictment, the investigator shall give the accused, the victim, as well as their counsels and/or authorised representatives sufficient time for perusing the case file and, if necessary, for proposing any additional investigation be carried out. 65. Article 224(1) and (2) of the Criminal Code provides that a person who by negligence and in violation of his or her duties causes a serious injury to health or the death of another person shall be punished with a prison sentence of between six months and five years or with a fine. 66. Under Article 314e (1) of the Code of Criminal Procedure, a single judge may issue a criminal order, without a public hearing, where the facts are reliably proved by the evidence submitted. 67. Pursuant to Article 314g (1) and (3) of the Code of Criminal Procedure, a penal order may only be challenged by the public prosecutor, the accused person or those who can file an appeal in the latter's favour. Where such an objection is filed, the judge shall hold a hearing in the case. 68. Article 314g (2) provides that a third party who joins the criminal proceedings with a claim for damages can file an objection to a penal order only in case and to the extent that compensation is thereby granted. When a third party files such an objection, the judge shall quash the relevant part of the penal order and refer the person concerned to proceedings before a civil court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 69. The applicant complained that the death of her husband in police custody and the subsequent failure of the Slovakian authorities to undertake a thorough and effective investigation into the circumstances surrounding his death amounted to a violation of Article 2 of the Convention, which provides as follows: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” The parties'submissions 70. The applicant submitted first, that her husband was deprived of his right to life as a result of his intentional shooting in police custody, and secondly, that the State authorities failed adequately to protect his right to life by undertaking a through and effective investigation into the circumstances surrounding his death. 71. In relation to the first submission, she relied on the principle, established by the Court, that where an individual is taken into police custody in good health but is later found dead, it is incumbent on the State to provide a plausible explanation of the events leading to his death, failing which the authorities must be held responsible under Article 2 of the Convention ( Velikova v. Bulgaria, no. 41488/98, § 70, ECHR 2000 ‑ VI). Moreover, where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting with the authorities to provide a satisfactory and convincing explanation ( Hugh Jordan v. the United Kingdom, no. 24746/94, § 103, ECHR 2001 ‑ III (extracts) ). 72. In the present case, Mr Šarišský was taken into custody in good health. It was not disputed that he received his injuries, including the fatal wound, in police custody. While in hospital he repeatedly told the applicant and other relatives that he did not shoot himself, and their testimonies unequivocally stated that he had never owned or used a gun. In the circumstances, the applicant submitted that the investigating authorities did not fulfil their obligation to provide a plausible explanation for his death. Rather, they continued to rely on a highly implausible theory which did not withstand scrutiny: namely, that Mr Šarišský had forcibly taken the gun from Lt. F. and shot himself. 73. The applicant further contended that the investigation conducted by the authorities was plagued by omissions and inconsistencies and, consequently, the State had failed to undertake a thorough and effective investigation into her husband's death. In particular, she argued that it was unacceptable that the forensic technician was not equipped with lifting pads for conducting a gun residue test when tasked with securing a crime scene involving bodily injury caused by a firearm. However, she contended that pivotal evidence could still have been secured had Lt. F.'s hands been bagged until the appropriate gunpowder residue tests were taken. 74. She submitted that the investigators failed properly to secure fingerprint tests; that police officers were never asked to explain how and when her husband received the serious injuries on his face and left ear; that the prosecution gave full credit to the testimony by the police officers involved in the incident, flatly denying the use of force against the victim; that the investigation failed to resolve the differences in the testimony of police officers regarding the position the victim was found in after the shooting; and finally, that there was a failure to resolve the apparent contradictions in the testimonies given by Lt. F. 75. The Government submitted that the theory that Mr Šarišský committed suicide was not highly implausible. In particular, they submitted that on 17 August 1999 an autopsy was ordered to determine the manner of death, the angle and range of the handgun with which the victim was shot, and any other facts or circumstances relevant to the finding of an objective explanation for the death. On 20 August 1999 a forensic analysis of fingerprints, biological and chemical samples and a handwritten note was commissioned. This was followed by a reconstruction on 8 September 1999 to clarify the circumstances leading to the death of Mr Šarišský. Although the testimony of Lt. F. was considered during the reconstruction, it relied primarily on the objective evidence such as the position of the entry and exit wounds and the gunshot damage to the chair. Following the reconstruction the investigators concluded that in all probability Mr Šarišský had shot himself. The investigations conducted, and the evidence that Mr Šarišský previously had been aggressive and attempted to self-harm while in police custody, refuted the applicant's allegation that suicide was a highly implausible theory and that the investigators had relied uncritically on the testimony of Lt. F. 76. With regard to the adequacy of the investigation, the Government submitted that a task-force from the District Criminal Police Department in Poprad was dispatched to the scene immediately after the shooting of the applicant's husband. They inspected the scene and a forensic technician secured the evidence. The forensic technician did not take samples of gunpowder residue from the hands of Lt. F. because he did not have lifting pads to secure such evidence. The Government contended that at that time lifting pads were not standard issue for criminal investigators. In any case, the applicant's husband was not at the crime scene when the forensic technician arrived as he had already been transported to hospital. The Government could not be held responsible for the fact that hospital staff washed his hands on admission. Moreover, although Lt. F.'s hands were not bagged, the Government submitted that he remained under the constant supervision of a police guard until samples of gunpowder residue were taken the following day by an expert technician from the Košice Institute of Forensic Science. 77. The Government further submitted that the firearm was confiscated immediately for the purpose of conducting forensic tests but no classifiable or identifiable fingerprints could be lifted from it. In addition, following the death and autopsy of the applicant's husband, additional experts were appointed to inspect biological, chemical, graphological, mechanical, fingerprint and ballistic traces. Reconstructions and experiments were carried out to clarify the incident and potential witnesses were interrogated. 78. The Government denied that there had been any contradictions in the testimonies of the police officers. Indeed, any discrepancy in the police officers'statements could be accounted for by the exclusion of the words “right side” from the English translation. 79. The Government also denied that the investigators had relied exclusively and uncritically on the testimony of Lt. F. and had never sought to explore an alternative explanation for the fatal injuries sustained by the applicant's husband. The investigators collected all accessible evidence in order to verify the testimonies of Lt. F. and the other witnesses; reconstructions were carried out to investigate various possible alternatives and the authorities concluded, on the basis of the available evidence, that Mr Šarišský's injuries were self-inflicted. The injuries to Mr Šarišský's face and left ear were considered irrelevant as they had no relation to the cause of death. 80. Finally, the Government submitted that the applicant had access to the investigation. Under domestic law, it was open to her to make motions concerning evidence-taking or submission of supplementary evidence, comment on all evidence taken and consult and review the case file. Her representative participated in parts of the criminal proceedings and raised no objection to their conduct. Furthermore, the applicant was entitled to make motions for further investigation. 81. The Government therefore argued that there was an effective, impartial, thorough and careful investigation into the death of Mr Šarišský which led to the person responsible, Lt. F., being identified and punished. B. The Court's assessment I. The death of Mr Šarišský (a) General principles 82. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. The circumstances in which the deprivation of life may be justified must therefore be strictly construed. Moreover, the object and purpose of the Convention as an instrument for the protection of individuals also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective ( McCann and Others v. the United Kingdom, 27 September 1995, §§ 146 – 147, Series A no. 324). 83. In light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also the surrounding circumstances. 84. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” ( Avsar v Turkey, no. 25657/94, § 282, ECHR 2001). Such proof may, however, follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact ( Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation ( Salman v. Turkey [ GC], no. 21986/93, § 99, ECHR 2000 ‑ VII). 85. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, for example, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V) and to produce evidence casting doubt on the veracity of the victim's allegations, particularly if those allegations are backed up by medical reports ( Abdülsamet Yaman v. Turkey, no. 32446/96, § 43, 2 November 2004). The authorities'obligation to account for an individual in custody is particularly stringent where that individual dies (Salman v. Turkey, cited above, at § 99; Keenan v. the United Kingdom, no. 27229/95, § 91, ECHR 2001 ‑ III). 86. Moreover, in addition to the obligation on States to account for injuries or deaths in police custody, the Court recalls that the State is also under a positive obligation to take all reasonable measures to ensure that the health and well-being of persons in detention are adequately secured by, among other things, providing them with the requisite medical assistance (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq., and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI) and taking reasonable measures to minimise a known suicide risk ( Keenan v. the United Kingdom, no. 27229/95, § 97, ECHR 2001 ‑ III). (b) Application to the present case 87. Mr Šarišský was twenty-one years old and in good health when he was taken into custody at approximately 8 p. m. on 12 August 1999. Several hours later he was rushed to hospital with a gunshot wound to his abdomen and injuries to his neck, right shoulder, face and ear. The fatal shot was fired from Lt. F.'s police service pistol while Mr Šarišský was alone with Lt. F. in his office. Mr Šarišský and Lt. F. clearly had previous dealings with each other (see, for example, paragraph 11), and the evidence would suggest that Lt. F. volunteered to interrogate Mr Šarišský while he was off duty, without first obtaining the permission of his commanding officer. 88. In the course of the investigation into his death, at least three accounts were given of how Mr Šarišský was shot. Lt. F. indicated that Mr Šarišský had taken his gun and shot himself. Mr Šarišský allegedly told the investigator that Lt. F. had given him the gun and he had shot himself. The applicant, on the other hand, submitted that her husband told her that Lt. F. had shot him. In carrying out the reconstruction on 8 September 1999, the ballistics experts concluded that Mr Šarišský “most probably” shot himself. Further reconstructions were carried out to determine how Mr Šarišský was able to forcibly remove Lt. F.'s service pistol. No attempt appears to have been made, however, to investigate the allegation made by Mr Šarišský himself, namely that Lt. F. gave him the firearm. Moreover, the Court also observes that no explanation was given for the inconsistencies in the different statements provided by Lt. F. in the course of the domestic proceedings. 89. Consequently, the Court has grave concerns both about the circumstances surrounding Mr Šarišský's death and the extent to which the authorities have provided “a satisfactory and convincing explanation” (see Salman v. Turkey, cited above, § 99). The inherent improbability of the theory that, while in police custody and while temporarily left alone during his interrogation by Lt. F, Mr. Šarišský would compose a suicide note and on Lt.F's return seize his pistol from his belt and use it to shoot himself in the abdomen gives serious cause to doubt that the authorities have discharged the burden imposed on them under the Convention. However, the Court does not consider that it is necessary to reach any final determination of this issue. Even if the Court were to accept that Mr Šarišský committed suicide as alleged, it notes that the obligation to protect the health and well-being of persons in detention clearly encompasses an obligation to take reasonable measures to protect them from harming themselves ( Keenan v. the United Kingdom, cited above, § 97). Although there is insufficient evidence to enable the Court to find that the authorities either knew or ought to have known that Mr Šarišský was a suicide risk on the night of his death, the Court notes that there are certain basic precautions which police officers and prison officers should be expected to take in all cases in order to minimise any potential risk. First, the Court would observe that compelling reasons must be given as to why the interrogation of a suspect is entrusted to an armed police officer. For the Court, the facts of the present case disclose no justification whatsoever for allowing Lt. F. to remain in possession of his firearm during the interrogation of Mr Šarišský, a young man who had been arrested on suspicion of bicycle theft. Secondly, at the time of Mr Šarišský's death there were regulations in force which required police officers to secure their service weapons in order to avoid any “undesired consequences”. The domestic courts held that Lt. F's failure properly to secure his service weapon amounted to negligence which resulted in the death of Mr Šarišský. Consequently, the Court finds that even if Mr Šarišský committed suicide in the manner described by the Government and the investigative authorities, the authorities were in violation of their obligation to take reasonable measures to protect his health and well-being while he was in police custody. 90. There has accordingly been a violation of Article 2 of the Convention under its substantive limb. The adequacy of the investigation (a) General principles 91. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. Whatever mode is employed, however, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII). 92. For an investigation into an alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 325, ECHR 2007 ‑ ..., Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, p. 1733, §§ 81-82, and Oğur v. Turkey [GC], no. 21954/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998 ‑ IV, pp. 1778-79, §§ 83-84, and the Northern Irish judgments, for example, Hugh Jordan v. the United Kingdom, no. 24746/94, § 120, and Kelly and Others v. the United Kingdom, no. 30054/96, § 114, both of 4 May 2001 ). 93. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy providing a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, for example, Salman, cited above, § 106; Tanrıkulu v. Turkey [GC], no. 23763/94, § 1 09, ECHR 1999-IV; and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard (see the Northern Irish judgments concerning the inability of inquests to compel the security-force witnesses directly involved in the use of lethal force, for example, Hugh Jordan, cited above, § 127). 94. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, pp. 2439-40, §§ 102-04; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87 and 106, ECHR 1999-IV; Tanrıkulu, cited above, § 109; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07, ECHR 2000-III). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, for example, Hugh Jordan, cited above, §§ 108 and 136-40). 95. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç, cited above, p. 1733, § 82; Oğur, cited above, § 92; Gül, cited above, § 93; and the Northern Irish judgments, for example, McKerr v. the United Kingdom, no. 28 883/95, § 148, ECHR 2001 ‑ III). (b) Application to the present case 96. The Court observes that following the shooting of Mr Šarišský, Lt. F. immediately called for the emergency services. An investigation task-force was formed and called promptly to the police station to inspect the scene of the shooting. The inspection began at 11.50 p.m., very shortly after the incident. 97. Nevertheless, the Court finds that there were a number of deficiencies in the criminal investigation which undermined its ability to establish who was responsible for Mr Šarišský's death. (i) Independence of the police investigation 98. The criminal investigation was supervised by police officers from the Department of Supervision and Inspection at the Ministry of the Interior. The Court observes that these police officers were under the command of the Ministry of the Interior. Even if the Court were to assume that these officers were sufficiently independent for the purposes of Article 2 of the Convention, it is concerned that they did not commence their investigation until 13 August 1999, when an officer interviewed the wounded Mr Šarišský in hospital. The task-force that was formed immediately after the shooting was comprised of police officers from Poprad, which was the district in which Lt. F. was based. It was these officers who conducted the initial forensic examination of the scene. Moreover, after the Department of Supervision and Inspection took over, officers from Poprad continued to be involved in the investigation. In particular, it is clear from the record of the reconstruction conducted on 4 May 2000 that the technicians carrying out the experiments were from the Criminal Police Department in Poprad, which was Lt. F.'s department. Further investigations were also carried out by the Regional Investigation Office in Prešov. 99. The Court recalls the extremely high standard established by the Grand Chamber in Ramsahai v the Netherlands (cited above, §§ 333 -341). Whilst the Court acknowledges that the local police cannot remain passive until independent investigators arrive, in Ramsahai v the Netherlands the Grand Chamber indicated that in the absence of any special circumstances, immediate action by local police should not go beyond securing the area in question. In the present case, the task-force examined the crime scene, photo-documented it and recovered fingerprints and ballistic, biological and material evidence. They did not, however, have the necessary technical equipment to test Lt. F.'s hands for gunshot residue, and instead permitted him to return home, although they submitted that he remained under the constant supervision of a police guard. No further details have been provided concerning the identity of this guard or the extent of the supervision. However, as police officers from the Department of Supervision and Inspection at the Ministry of the Interior did not arrive until the following day, it must be assumed that the guard was also from Lt. F.'s department in Poprad. 100. The Court is also concerned about the continued involvement of technicians from Lt. F.'s department in Poprad in the investigation, most notably during the reconstruction carried out on 4 May 2000. Their involvement diminished the investigation's appearance of independence and this could not be remedied by the subsequent involvement of the Department of Supervision and Inspection. The Court therefore finds that the investigation was not sufficiently independent. ( iii ) Adequacy of the investigation 101. Moreover, the Court finds that the failure of the investigators to give serious consideration to Mr Šarišský's claim that he shot himself after Lt. F. handed him the gun amounted to a serious deficiency in the Šarišský's death. The allegation that Lt. F. voluntarily gave Mr Šarišský his gun amounts to a much more serious allegation against Lt. F than that of causing injury to health by negligence, and yet the investigators do not appear to have considered it, preferring instead to rely on Lt. F.'s claim that Mr Šarišský forcibly took the weapon from him. 102. The Court further observes that in a case such as the present, where there were no independent eyewitnesses to the incident, the taking of forensic samples was of critical importance in establishing who was responsible for Mr Šarišský's death ( Ramsahai v the Netherlands, cited above, § 331). If the investigators had brought the necessary equipment to the police station, samples of gunpowder residue could have been taken from Lt. F.'s hands in the immediate aftermath of the shooting. If such samples had been taken, it might have been possible either to exclude or confirm that he pulled the trigger. Instead, samples were not taken until the following day. Although the Government submitted that Lt. F. remained under the supervision of a police guard until the samples were taken, the Court has concerns about the independence of the guard, who was most likely a police officer from Lt. F.'s department (see paragraph 98). Consequently, the result of the gunpowder residue test cannot be relied on. Although a ballistics test later confirmed that Mr Šarišský “most probably” shot himself, if conducted properly the gunpowder residue test could have been conclusive. Thus, there was a failure by the investigators to take reasonable steps to secure evidence concerning the incident which in turn undermined the ability of the investigation to determine beyond any doubt who was responsible for Mr Šarišský's death. 103. Finally, the Court observes that very little attention appears to have been paid to the applicant's claim that her husband had injuries to his face, shoulder and ear, even after the autopsy confirmed the presence of these injuries. The Government have subsequently indicated that these injuries were ignored because they were not relevant to determining the cause of death. They were, however, relevant to determining whether Mr Šarišský was ill-treated by police officers either during his arrest or in police custody, which in turn is relevant both to an investigation into a potential violation of Article 2 of the Convention and to a separate allegation under Article 3. The Court therefore finds that the failure to investigate the applicant's claim that her husband was ill-treated by police officers prior to the shooting amounted to a serious shortcoming in the criminal investigation and prevented the authorities from obtaining a clear and accurate picture of the events leading to Mr Šarišský's death. 104. In light of the above, the Court concludes that no meaningful investigation was conducted at the domestic level capable of establishing the true facts surrounding the death of Mr Šarišský. It follows that there has also been a violation of the procedural limb of Article 2 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 105. The applicant complained under Article 3 of the Convention that her husband was ill-treated in police custody and that the authorities failed to carry out an adequate investigation into that ill-treatment. Article 3 of the Convention provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 106. Having considered the applicant's complaints under Article 2 of the Convention, the Court finds that it is not necessary to make a separate finding under Article 3. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 107. The applicant complained that she had not had an effective remedy for her complaints under Articles 2 and 3 within the meaning of Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 108. First, the applicant submitted that the authorities failed to carry out a competent and thorough investigation of the violation of Article 2, which constituted a separate and independent violation of her right to an effective remedy. 109. Secondly, the applicant submitted that under Slovak law no effective remedy existed in the event that the prosecution and investigation authorities did not fulfil their responsibility to carry out a thorough and effective investigation of alleged violations of rights protected by the Convention. She further submitted that civil damages did not amount to an effective remedy where there had been a death at the hands of State agents (see, for example, Aksoy v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI). 110. The Court notes that, despite her claim that civil damages could not be regarded as an effective remedy where a death had occurred at the hands of State agents, the applicant instituted civil proceedings which were discounted on the grounds of the procedural shortcomings in her pleadings. The Court finds that the essence of the applicant's complaints under Article 13 relates to the alleged inadequacy of the investigation which took place and the absence of any remedy to ensure there was an effective investigation into her husband's death such as to enable her effectively to pursue a civil action for damages arising out of the death. As such, the Court considers that the complaints under Article 13 are a restatement of the applicant's complaints under Article 2. It does not, therefore, consider it necessary to make a separate finding under Article 13 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 111. The applicant complained that her rights, and the rights of her deceased husband, under Articles 2, 3 and 13 of the Convention were violated in conjunction with Article 14 on grounds of ethnic origin. Article 14 of the Convention provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties'submissions 112. The applicant submitted that her husband's death was caused by an agent of the State and the investigation which followed was plagued by severe deficiencies and discrepancies and, as a result, it failed to establish the cause of his death. She submitted that the fact that her husband was a Romani man, coupled with the legacy of widespread and systematic abuse of Roma in police custody, created an obligation on the State to investigate a possible racist motive behind his death. The State failed to do so in violation of their procedural obligations under Article 14 of the Convention. 113. The Government contested that argument. They submitted that there was no evidence to suggest that in the present case Mr Šarišský was subjected to significantly harsher treatment by the police on account of his Roma ethnicity. B. The Court's assessment 1. Substantive aspect 114. Discrimination is treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). Discrimination on account of, inter alia, a person's ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of enrichment ( Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-...; and Timishev v. Russia, nos. 55762/00 and 5597 4/00, § 56, ECHR 2005-...). The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures ( Timishev, cited above, § 58). 115. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see, among other authorities, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999-III; and Timishev, cited above, § 57). 116. As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State, the Court stated in Nachova and Others v. Bulgaria that in proceedings before it there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties'submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. 117. Turning to the facts of the present case, the Court considers that whilst Lt. F.'s conduct during the applicant's detention calls for serious criticism, that behaviour is of itself an insufficient basis for concluding that his conduct was racially motivated. Further, in so far as the applicant has relied on general information about police abuse of Roma in Slovakia, the Court cannot lose sight of the fact that its sole concern is to ascertain whether in the case at hand the treatment inflicted on the applicants was motivated by racism (see Nachova and Others v. Bulgaria, cited above, § 155). Lastly, the Court does not consider that the failure of the authorities to carry out an effective investigation into the alleged racist motive for the incident should shift the burden of proof to the respondent Government with regard to the alleged violation of Article 14 in conjunction with the substantive aspect of Article 2 of the Convention. The question of the authorities'compliance with their procedural obligation under Article 14 is a separate issue, to which the Court will revert below (see Nachova and Others v. Bulgaria, cited above, § 157). 118. Consequently, the Court finds that there has been no violation of Article 14 of the Convention taken in conjunction with Article 2 in its substantive aspect. 2. Procedural aspect 119. The Court has held that when investigating violent incidents and, in particular, deaths at the hands of State agents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see, mutatis mutandis, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). In order to maintain public confidence in their law enforcement machinery, Contracting States must ensure that in the investigation of incidents involving the use of force a distinction is made both in their legal systems and in practice between cases of excessive use of force and of racist killing ( Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 146, ECHR 2005 ‑ VII ). 120. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute (see, mutatis mutandis, Shanaghan v. the United Kingdom, no. 37715/97, § 90, ECHR 2001-III, setting out the same standard with regard to the general obligation to investigate). The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of a racially induced violence. 121. In the present case, the Court has already found that the Slovakian authorities violated Article 2 of the Convention in that they failed to conduct a meaningful investigation into the death of Mr Šarišský (see paragraphs 94 –103 above). It therefore considers that it must examine separately the complaint that there was also a failure to investigate a possible causal link between alleged racist attitudes and his death. 122. The Court notes with concern the contemporaneous reports documented at paragraphs 57 et seq. above which relate to allegations of police brutality towards Roma in Slovakia. In respect of persons of Roma origin, it would not exclude the possibility that in a particular case the existence of independent evidence of a systemic problem could, in the absence of any other evidence, be sufficient to alert the authorities to the possible existence of a racist motive. However, in the present case the Court is not persuaded that the objective evidence is sufficiently strong in itself to suggest the existence of such a motive. It also notes that, unlike the situation obtaining in Nachova and Others v. Bulgaria, the authorities did not have before them any concrete information capable of suggesting that there had been any racial motive behind the applicant's arrest, detention, or, ultimately, his death ( Vasil Sashov Petrov v. Bulgaria, no. 63106/00, § 72, 10 June 2010 ). Moreover, there is no indication that the applicant made allegations of racial bias at any point during the investigation (compare with Karagiannopoulos v. Greece, no. 27850/03, § 78, 21 June 2007; Turan Cakir v. Belgium, no. 44256/06, § 80, 10 March 2009; Beganović v. Croatia, no. 46423/06, § 97, ECHR 2009 ‑ ... (extracts); and Sashov and Others v. Bulgaria, no. 14383/03, § 84, 7 January 2010 ). 123. For these reasons, the Court does not consider that the authorities had before them information that was sufficient to bring into play their obligation to investigate possible racist motives on the part of the officers. It follows that there has been no violation of Article 14 of the Convention taken in conjunction with Article 2 in that respect. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 124. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 125. The applicant claimed 45,000 euros (EUR) in respect of non-pecuniary damages : EUR 30,000 in respect of the victim's suffering and EUR 15,000 in her personal capacity. The applicant contended that her claims were in line with the standards set by the Court in the cases of Akkoç v. Turkey, nos. 22947/93 and 22948/93, ECHR 2000 ‑ X and Nachova and Others v. Bulgaria (cited above). 126. The applicant also claimed EUR 289,225 in respect of pecuniary damages. She submitted that although her husband was unemployed at the time of his death, he was young and in good health and therefore could have secured employment. She submitted that his death had impacted her financial situation and would continue to do so for the forty-one remaining years during which her husband would have been able to secure wages from employment. The claim for EUR 289,225 therefore represented past, present and future wage loss based on the age of death of the victim until the official retirement age in Slovakia (62 years). 127. The Government contended that the applicant's claim for non-pecuniary damage was manifestly overstated. 128. The Government submitted that the applicant's claim for lost earnings was unfounded as her husband was unemployed at the date of his death. Moreover, they submitted that the applicant had the opportunity to claim for pecuniary loss during the criminal proceedings against Lt. F. and/or in civil proceedings but her claims were struck out due to procedural irregularities. 129. In respect of the applicant's claim for non-pecuniary damage, the Court recalls that it has found a violation of Article 2 of the Convention. It has also found that the authorities failed to provide the applicant with an effective remedy, contrary to Article 13. In the circumstances, having regard to awards made in comparable cases, the Court awards the applicant the full amount claimed. 130. In respect of the applicant's claim for pecuniary loss, the Court observes that she has not submitted any details of her late husband's previous employment record or, as she has since remarried, of her current husband's employment situation. It is therefore impossible for the Court properly to assess the financial impact of her husband's death. Consequently, the Court finds that the applicant has not substantiated her claim for pecuniary loss. B. Costs and expenses 131. The applicant claims EUR 10,962 in respect of legal costs and expenses. 132. The Government submit that this claim is unreasonably high. 133. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicants the sum of EUR 8,000 for the proceedings before the Court. C. Default interest 134. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 2 (right to life) of the Convention, finding that, even if he had committed suicide as alleged by the investigative authorities, they had been in violation of their obligation to take reasonable measures to protect his health and well-being while in police custody. It also found a violation of Article 2 under its procedural limb, as no meaningful investigation had been conducted at the domestic level capable of establishing the true facts surrounding the death of the applicant’s husband. The Court further held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 2. It was in particular not persuaded that the objective evidence had been sufficiently strong in itself to suggest the existence of a racist motive for the incident.