Ill-treatment by prison officers
II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Criminal Code 2003 (Krivični zakonik, published in the Official Gazette of the Republic of Montenegro - OG RM - nos. 70/03, 13/04 and 47/06, as well as in the Official Gazette of Montenegro - OGM - nos. 40/08 and 25/10) 51. Article 166a provides that anyone who ill-treats another person or treats a person in a humiliating and degrading manner will be punished with imprisonment of up to one year. If this offence is committed by an official acting in an official capacity, the official will be punished with imprisonment of between three months and three years. 52. Article 167 provides that anyone who causes severe pain or suffering to another for purposes such as intimidating or unlawfully punishing someone or exerting pressure on him will be punished with imprisonment of between six months and five years. If this offence is committed by an official acting in an official capacity, or with the explicit or tacit consent of an official, or if an official incites another person to commit such an offence, the official will be punished with imprisonment of between one and eight years. 53. Article 183 provides for the official prosecution of the above offences. B. The Code of Criminal Procedure 2003 (Zakonik o krivičnom postupku; published in OG RM nos. 71/03, 07/04 and 47/06) 54. Articles 19, 20 and 44 provide, inter alia, that formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex proprio motu, such as the offences at issue, the authorised prosecutor is the State prosecutor. His authority to decide whether or not to press charges is bound by the principle of legality, which requires that he must act whenever there is a reasonable suspicion that a crime liable to official prosecution has been committed. 55. Articles 19 and 59 provide, inter alia, that should the state prosecutor decide that there is no basis on which to prosecute, he or she must inform the victim of this decision, and the victim then has the right to take over the prosecution of the case on his or her own behalf – in the capacity of a “subsidiary prosecutor” – within eight days of the date of notification of that decision. When notifying the victim of the decision not to prosecute, the State prosecutor must inform the victim what actions he or she may undertake in the capacity of subsidiary prosecutor. 56. Article 229 provides that if a criminal complaint has been submitted to a court, police department or State prosecutor without the requisite jurisdiction ( nenadležnom državnom tužiocu ), the complaint must be forwarded to the State prosecutor who has such jurisdiction. C. The Criminal Sanctions Enforcement Act (Zakon o izvršenju krivičnih sankcija; published in OG RM nos. 25/94, 29/94, 69/03 and 65/04) 57. Section 14b forbids all acts whereby a convicted person is subjected to torture or ill-treatment. This concerns primarily acts that are disproportionate to the maintenance of order and discipline within the institution or unit. A prisoner subjected to such actions is entitled to compensation. 58. Section 61 provides that force can be used against prisoners only if necessary to prevent resistance to an official executing a lawful order; force includes both physical force and the use of batons. 59. Section 181 provides that section 61 also applies in respect of detainees. D. The Obligations Act (Zakon o obligacionim odnosima; published in the OGM nos. 47/08 and 04/11) 60. Sections 148 and 149 set out different grounds for claiming civil compensation, for both pecuniary and non-pecuniary damage. 61. Section 151 provides, inter alia, that everybody has the right to ask the court or another competent body to order the cessation of any action which violates human integrity, personal and family life and other personal rights. 62. Section 166 § 1 provides that any legal entity – which includes the State – is liable for any damage caused by one of “its bodies”. 63. Sections 206 and 207 provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of the violation of his or her personal rights is entitled, depending on the duration and intensity thereof, to sue for damages in the civil courts and, in addition, to request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction. E. Relevant domestic case-law 64. The Government submitted that in 2010 three constitutional appeals had been adopted by the Constitutional Court, 184 were rejected on the merits ( odbio ) and 144 were rejected on procedural grounds ( odbacio ). During the same period, proceedings concerning one constitutional appeal were discontinued ( obustavio ). 65. Between 1 January 2011 and 19 January 2012 a further 247 constitutional appeals were rejected on the merits, 234 were rejected on procedural grounds, three proceedings were discontinued and nineteen constitutional appeals were accepted. 66. No information was provided as to whether any of these decisions was delivered in the context of a subsidiary prosecution by the injured parties. THE LAW I. JOINDER OF THE APPLICATIONS 67. The Court notes that the applications under examination concern the same issue. It is therefore appropriate to join them, in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 68. The applicants complained under Article 3 of the Convention that they had been tortured and ill-treated by prison guards on 27 October 2009 and about the lack of an effective investigation in that regard. 69. The relevant Article reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The substantive aspect 1. Admissibility 70. The Government submitted that the applicants had failed to exhaust all effective domestic remedies. In particular, the civil proceedings they had initiated and through which they could obtain compensation for non-pecuniary damage for a possible violation of their rights ( eventualne povrede prava ličnosti ) were still pending. In this respect they referred to the relevant sections of the Obligations Act (see paragraphs 60-63 above). 71. The applicants maintained that the civil claim was not an effective domestic remedy. On 1 December 2014 they notified the Court that the civil proceedings had been concluded on 23 October 2014, and submitted the relevant decision of the Supreme Court (see paragraph 42 above). 72. The Court points out that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are exempted from answering for their acts before an international body until they have had an opportunity to put matters right through their own legal system. The rule of exhaustion of domestic remedies referred to in Article 35 of the Convention requires that normal recourse should be had by an applicant only to remedies that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Selmouni v. France [GC], no. 25803/94, §§ 74-75, ECHR 1999 ‑ V; and Vučković and Others v. Serbia [GC], no. 17153/11, §§ 69-77, 25 March 2014 ). 73. The Court also recalls that an applicant ’ s status as a “victim” depends on whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate and sufficient redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004, and Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006 ‑ V). 74. Turning to the present case, the Court notes that the applicants did lodge a compensation claim, and that the proceedings were concluded in October 2014. While the requirement for the applicant to exhaust domestic remedies is normally determined with reference to the date on which the application was lodged with the Court ( Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)), the Court also accepts that the last stage of such remedies may be also reached after the lodging of the application but before the Court determines the issue of admissibility ( Karoussiotis v. Portugal, no. 23205/08, § 57, ECHR 2011 (extracts)). Even assuming that a compensation claim in civil proceedings may be regarded as an effective domestic remedy for complaints under the substantive aspect of Article 3 of the Convention, the Court notes that the applicants in the present case have exhausted that remedy proposed by the Government, whose objection in that regard must therefore be dismissed. 75. However, this calls for an examination of whether the applicants may still claim to be victims of the alleged violation. The Court notes in this respect that the domestic courts ruled partly in favour of the applicants, awarding them damages. It further observes that while the Supreme Court referred to the impugned actions of the guards as degrading human dignity, it did not acknowledge a violation of the applicants ’ rights as clearly as it would have been necessary in this type of cases, in particular in view of the explicit position of the lower courts in this respect (see paragraphs 40-42 above). In any event, and quite apart from the issue as to whether the domestic courts ’ findings were sufficient in terms of acknowledgement of a violation, the Court is of the opinion that the compensation of EUR 1,500 awarded to each applicant in respect of non-pecuniary damage, in the present case, cannot be considered an appropriate redress for the violation complained of (see, mutatis mutandis, Cocchiarella v. Italy [GC], cited above, § 107). 76. In view of the above, the Court considers that the applicants ’ status as “victims” within the meaning of Article 34 of the Convention is unaffected. 77. The Court also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 78. The applicants reaffirmed their complaints. 79. The Government did not contest that the prison guards had used excessive force, which was not proportionate to the measures that had to be implemented. They maintained, however, that the use of force was justified as its aim was to overcome the applicants ’ resistance and therefore it could not constitute torture or inhuman or degrading treatment. They further submitted that the applicants had never been denied medical assistance, the first applicant himself having refused medical help. They concluded that there was no violation in this regard. 80. The Court has already held that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being. While it accepts that the use of force may be necessary on occasion to ensure prison security, to maintain order or prevent crime in such facilities, such force may be used only if it is indispensable and it must not be excessive. Any recourse to physical force which has not been made strictly necessary by the detainee ’ s own conduct diminishes human dignity and is in principle an infringement of Article 3 of the Convention (see Kopylov v. Russia, no. 3933/04, § 157, 29 July 2010, and the authorities cited therein). 81. The Court has further held that 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 occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Vladimir Romanov v. Russia, no. 41461/02, § 58, 24 July 2008). 82. Turning to the present case, the Court notes that the domestic bodies established that the prison guards had hit the applicants with a rubber baton (see paragraphs 22, 35 and 36 above). While the first applicant had refused to be examined by a doctor, the external forensic doctor confirmed that the second applicant had sustained injuries (see paragraph 15 above). Furthermore, the domestic courts accepted that the use of force had been excessive, as acknowledged by the Government as well (see paragraphs 40-42 and 79 above). While the Government do not consider that the impugned actions of the prison guards constituted ill-treatment, the Court does not take the same view. Taking into account the specific acts described and established in the domestic proceedings, as well as the injuries noted in the medical reports, the Court finds that the threshold of Article 3 was reached and considers that there has been a violation of the substantive limb of Article 3 of the Convention in respect of both applicants. B. The procedural aspect 1. Admissibility 83. The Government submitted that the applicants had not exhausted all effective domestic remedies available to them. In particular, they had failed to lodge a constitutional appeal against the decisions of the Court of First Instance and the High Court delivered on 18 March and 13 June 2011 respectively. In this regard the Government referred to the Constitutional Court ’ s case-law (see paragraphs 64-66 above). 84. The applicants submitted that a constitutional appeal was not an effective domestic remedy. 85. The Court recalls that where alleged ill-treatment is perpetrated by a State official, Article 3 requires that an official investigation be carried out. The applicant is not obliged personally to start a subsidiary prosecution, having already brought a criminal complaint and thus afforded the State an opportunity to put matters right (see Stojnšek v. Slovenia, no. 1926/03, § 79, 23 June 2009 and the authorities cited therein). 86. Turning to the present case, the Court notes that the alleged ill-treatment had been perpetrated by prison guards, that is to say by State officials. The applicants, for their part, had brought criminal complaints with regard to the events complained of, and had thus afforded the State an opportunity to put matters right. They were therefore not obliged to initiate – in addition – the subsidiary prosecution resulting in the decisions of the Court of First Instance and the High Court of 18 March and 13 June 2011, respectively, and hence had no obligation to lodge a constitutional appeal thereafter either. The Government ’ s objection in this regard must therefore be dismissed. 87. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits a. The parties ’ submissions 88. The applicants complained that there had been no effective official investigation into the impugned incident. In particular, the State prosecutor had not obtained all the relevant video-recordings of the prison corridor where the torture had taken place, obtaining them from only one camera. The disciplinary proceedings that were conducted were ineffective as they were conducted against only three prison guards and seven months after the impugned event. 89. The applicants further submitted that they had indeed lodged an indictment after their criminal complaint against persons unknown had been rejected. However, this was done in response to the instruction of the State prosecutor to that effect, and not as a result of their “wrongful assessment”, as submitted by the Government (see paragraphs 22 in fine and 26 above). 90. The Government submitted that the respondent State had undertaken a prompt, thorough and effective investigation into the applicants ’ allegations of ill-treatment. They did not contest that the prison guards had used excessive force, but considered it justified. Following the Ombudsman ’ s recommendation to that effect, disciplinary proceedings had been instituted against three prison guards who had ultimately been fined for the use of excessive force. The applicants ’ families, the Ombudsman and the NGOs with an interest in this case were duly informed about the outcome of the disciplinary proceedings. 91. The Government further maintained that the applicants had also contributed to the length of the pre-trial proceedings ( prethodnog krivičnog postupka ) by wrongfully lodging a constitutional appeal against a procedural decision in addition to the indictment, which the domestic courts duly decided to treat as a criminal complaint (see paragraphs 26 and 31 above). They argued that the proceedings at issue would have been conducted without unnecessary delay had it not been for that contribution. 92. In view of the above, they considered that there had been no violation of Article 3 of the Convention. b. The Court ’ s conclusion 93. According to the Court ’ s established case-law, when an individual makes a credible assertion that he has suffered treatment at the hands of the police or other similar agents of the State that violates Article 3, it is the duty of the national authorities to carry out an effective official investigation (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV). 94. The Court observes in this connection that the lack of conclusions arising from any given investigation does not, by itself, mean that it was ineffective: an obligation to investigate “is not an obligation of results, but of means”. Not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant ’ s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006). Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Labita [GC], cited above, § 131). 95. The investigation must be thorough, prompt and independent (see Mikheyev, cited above, §§ 108-110, and Jasar v. the former Yugoslav Republic of Macedonia, no. 69908/01, §§ 56-57, 15 February 2007). 96. Turning to the present case, the Court notes that after the applicants ’ mothers had lodged criminal complaints with regard to the events of 29 October 2009, the State prosecutor asked the Court of First Instance to investigate the complaints. Immediately thereafter the Court of First Instance, for its part, undertook a number of actions: it requested the identification of the prison guards involved, the medical examination of the applicants, submission of the relevant video-recording, and it heard evidence from a number of individuals, including the applicants, the prison guards concerned and the detainees sharing the cell with the applicants. On the basis of the findings of the investigation the State prosecutor rejected the criminal complaints, concluding that the prison guards had indeed used force but had done so in order to overcome the applicants ’ resistance, and had thus acted within their powers. 97. In its response to the Ombudsman ’ s request, the IECS confirmed that the guards had used force only to the extent necessary to overcome the applicants ’ resistance (see paragraph 34 in limine above). 98. Even though the applicants were officially notified that they could undertake a subsidiary prosecution, the first time they attempted to do so the Court of First Instance directed them back to lodge a criminal complaint with the State prosecutor, and the second such request was rejected by the same court. 99. As regards the effectiveness of the criminal investigation, the Court recalls that the Government have not disputed the applicants ’ allegation (see paragraph 88 above) that the State Prosecutor did not obtain all the relevant video-recordings of the prison corridor at the time in question. Moreover, the second dismissal by the State Prosecutor, on 19 October 2010, took place after the Ombudsman had given his opinion on the matter on 29 March 2010 (see paragraph 35 above), finding that excessive force had been used and recommending disciplinary proceedings, and also after the end of the disciplinary proceedings on 31 May 2010 (see paragraph 36 above) where it was considered established that three prison guards, I.M., I.B. and R.T. had abused their position and exceeded their authority by using excessive force disproportionate to the resistance offered by the applicants. Therefore, the Court considers that it has not been convincingly established that the decisions by the State Prosecutor to discontinue the criminal proceedings (see paragraphs 22 and 29 above) were based on an adequate assessment of all the relevant factual elements in the case, as well as taking into account the findings of fact as established by the Ombudsman and in the disciplinary proceedings. 100. In view of the above, the Court considers that there has been a violation of the procedural limb of Article 3 of the Convention in respect of both applicants. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 101. The applicants also complained under Article 13 of the Convention that there had been no effective official investigation into the events of 27 October 2009. 102. Having regard to the finding relating to the applicants ’ procedural complaint under Article 3 in this regard, the Court considers that it is not necessary to examine the admissibility or the merits of the same complaint under Article 13 (see, mutatis mutandis, Youth Initiative for Human Rights v. Serbia, no. 48135/06, § 29, 25 June 2013). IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 103. The applicants also complained, under Articles 3 and 13 of the Convention, that they had been threatened and abused between 23 December 2009 and 15 January 2010 (see paragraph 43 above) and that there was no effective official investigation in relation thereto. 104. In view of all the information available in the case-file and the submissions made by the parties the Court considers that there is no evidence that the applicants were indeed threatened or abused as alleged. The applicants ’ complaints in this regard under Article 3 are therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 105. The Court further recalls that Article 13 has been consistently interpreted as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Powell and Rayner v. the United Kingdom, 21 February 1990, § 31, Series A no. 172). The criteria for considering a claim as “arguable” cannot be construed differently from the criteria applied when declaring claims “manifestly ill-founded” (see Powell and Rayner, cited above, § 31, and Kienast v. Austria, no. 23379/94, § 54, 23 January 2003). 106. Since the applicants ’ complaints under Article 3 in respect of the alleged incidents have been declared “manifestly ill-founded”, the Court considers that they cannot be regarded as “arguable” for the purposes of Article 13. The applicants ’ complaint under Article 13 in this regard taken in conjunction with Article 3 is thus likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 107. 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 108. The applicants each claimed 20,000 euros (EUR) in respect of non-pecuniary damage. 109. The Government contested this claim. 110. The Court accepts that the applicants have suffered non-pecuniary damage resulting from a violation of Article 3 which cannot be sufficiently compensated by the finding of a violation alone. Making its assessment on an equitable basis, and in view of the partial compensation awarded by the domestic courts (see paragraph 42 above) the Court awards the applicants EUR 4,350 each under this head. B. Costs and expenses 111. The first applicant claimed EUR 8,562 and the second applicant claimed EUR 3,586 for costs and expenses. 112. The Government contested this claim. 113. 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the first applicant the sum of EUR 3,520, and the second applicant the sum of EUR 1,160 covering costs under all heads. C. Default interest 114. The Court considers it appropriate that the default interest rate 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 two violations of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, on account of the ill-treatment to which both applicants had been subjected during a search of their cell as well as the ineffectiveness of the ensuing investigation into their complaints of ill-treatment. The Court found in particular that, even though it had been established in the compensation and disciplinary proceedings concerning the applicants’ complaint of ill-treatment that the guards had used excessive force, the damages awarded to the applicants had not been sufficient. Nor had the domestic courts or the Montenegrin Government actually acknowledged that such behaviour had amounted to ill-treatment. The Court on the other hand found that hitting the applicants with batons – as established by the domestic bodies – had amounted to ill-treatment within the meaning of Article 3.