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SECOND
SECTION
DECISION
Application no.
31169/08
by Mila PETKOVIĆ
against Serbia
The
European Court of Human Rights (Second Section), sitting on
6 December 2011 as a Chamber composed of:
Françoise
Tulkens,
President,
Danutė
Jočienė,
Işıl
Karakaş,
Guido
Raimondi,
Paulo
Pinto de Albuquerque,
Helen
Keller,
judges,
Mirjana
Lazarova Trajkovska,
ad hoc
judge,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
regard to the above application lodged on 17 June 2008,
Having
regard to the formal declarations accepting a friendly settlement of
the case,
Having
deliberated, decides as follows:
PROCEDURE
- The
applicant, Ms Mila Petković, is a Serbian national who was born
in 1952 and lives in Belgrade. She was represented before the Court
by Belgrade Centre for Human Rights, a non-governmental organisation
based in Serbia. The Serbian Government (“the Government”)
were represented by their Agent, Mr S. Carić.
THE FACTS
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. The death of the applicant’s son
- On
17 July 2005, at around 2.00 p.m., the applicant’s son
(hereinafter “M.P.”), who was serving his prison sentence
in the PoZarevac Penitentiary (elsewhere also referred to as the
PoZarevac-Zabela Correctional Institution), suddenly felt very sick.
He had a fever and began shaking, hallucinating and vomiting. His
fellow inmates immediately informed the prison guards. They stressed
that M.P.’s condition was probably caused by a drugs overdose,
and requested urgent medical assistance.
- The
prison guards ultimately responded to the situation. They did so by
using force against M.P., whose behaviour they subsequently described
as aggressive. M.P. was thus struck with truncheons, hand-cuffed to a
cell door, and, at one point, even slammed against the wall. Finally,
he was transferred to another wing of the PoZarevac Penitentiary
(Pavilion VII), whilst his medical condition continued to
deteriorate.
- At
around 4.50 p.m. M.P. was taken to the PoZarevac Health Centre (PHC),
a civilian institution located outside of the penitentiary where he
was diagnosed as having an “altered personality” and
provided with some treatment, including an electrocardiogram.
However, M.P. received no medical assistance aimed at his
detoxification. Instead, the PHC recommended that M.P. be taken to
the Belgrade Prison Hospital (BPH), approximately 80 kilometres from
PoZarevac.
- At
around 6.30 p.m., M.P. was then taken back to Pavilion VII of the
PoZarevac Penitentiary and placed in a cell with another two inmates.
No medical or other supervision was secured.
- At
around 8.00 p.m. M.P.’s health deteriorated even further, and
he was again taken to the PHC, where another electrocardiogram was
performed. The PHC reaffirmed that M.P. should be taken for further
treatment to the BPH.
- Given
that his condition worsened while en route to Belgrade, the prison
staff escorting M.P. decided to take him to the emergency unit of the
Serbian Clinical Centre. No medical personnel were present in the
vehicle.
- Upon
admission M.P. was unconscious and was no longer breathing.
Reanimation was attempted, but to no avail. On 9.30 p.m. M.P. was
pronounced dead.
- M.P.’s
family was informed of his death on 18 July 2005, at around 5.00 p.m.
2. The internal review procedure
- Following the death of M.P. and as part of an internal
review procedure, inter alia, several prison guards and
inmates were questioned. One of the inmates, heard in the capacity of
an eyewitness (“witness A”), signed a statement dated 1
August 2005 indicating that M.P., despite his very poor medical
condition, had been gratuitously beaten by the prison guards. He did
not, however, provide a more detailed description of the event,
noting that for “[personal] safety reasons” he could not
afford to do so. The prison guards stated that M.P. had been
aggressive and had had to be restrained.
3. The autopsy and the events immediately thereafter
- The
autopsy was performed on 18 August 2005. It concluded that the death
of M.P. was caused by hallucinogenic drugs, containing morphine. No
further details regarding the exact kind and quantity of drugs were
included. Extensive bodily injuries, including lacerations and
hematoma all over the deceased’s body, were listed, but their
cause and connection, if any, to the fatal outcome remained
unaddressed.
- On
16 January 2006 the police provided the District Public Prosecutor’s
Office in PoZarevac (“the DPPO”) with several, mutually
contradictory statements given by prison guards and M.P.’s
fellow inmates concerning what had transpired on 17 July 2005.
- On
2 March 2006 and without seeking any additional clarification, the
DPPO decided that there were no grounds for the institution of a
formal criminal investigation. The applicant was never served with
this decision.
4. The criminal proceedings brought at the applicant’s
initiative
- On
14 July 2006 the applicant filed a criminal complaint with the DPPO.
The complaint was filed against five individuals identified by name
and surname (i.e. the prison guards at issue, as well as the Head of
Security and the Governor of the penitentiary), except for the doctor
from the PHC whose identity was not known to the applicant.
- On
1 August 2006 the DPPO rejected the criminal complaint. It concluded
that the death in question had been drugs-related, that the prison
guards had used adequate force in order to restrain M.P. who had been
acting aggressively, and that adequate medical treatment had been
provided.
- On
14 August 2006 the applicant attempted to take over the prosecution
of the case in the capacity of a “subsidiary prosecutor”.
She did so by filing a request for the institution of a formal
judicial investigation with the investigating judge of the District
Court in PoZarevac.
- The
investigating judge, however, refused to open the investigation
sought by the applicant.
- On
25 October 2006 the three-judge panel of the District Court in
PoZarevac upheld this decision.
- On
18 May 2007 the Belgrade-based Institute for Forensic Medicine
provided the District Court in PoZarevac with its own expert report.
The medical team reaffirmed that M.P. had died as a result of
drugs-related complications. It further noted the extensive
lacerations and hematoma all over his body and explained that they
were caused by a “blunt mechanical instrument”. These
injuries, however, were deemed unrelated to the death of M.P.
- Following
a remittal, on 14 September 2007 the three-judge panel of the
District Court in PoZarevac essentially reaffirmed its decision of
25 October 2006 and referred to the findings of the expert
report of 18 May 2007.
- On
12 October 2007 the applicant appealed against this decision, but on
7 November 2007 the Supreme Court rejected her appeal. The applicant
received this decision on 17 December 2007.
- On
an unspecified date thereafter the above case file was transferred to
the Municipal Court in PoZarevac, it being competent ratione
materiae for the crimes of criminal abandonment and official
malfeasance.
- The
investigating judge of the Municipal Court in PoZarevac, however,
refused to open the investigation sought by the applicant.
- On
24 July 2008 the three-judge panel of the District Court in PoZarevac
upheld this decision.
- Following
a remittal, on 2 August 2010 the three-judge panel of the PoZarevac
Court of First Instance again refused to open the investigation. It
stated that numerous witnesses had been heard, and concluded that the
prison authorities had acted fully in accordance with their duties.
There was thus no evidence of criminal abandonment and/or official
malfeasance. Witness A referred to by the applicant, however, was not
heard.
- On
4 October 2010 the applicant filed an appeal against this decision.
5. The civil proceedings
- On
18 April 2007 the applicant and her other son, M.P.’s brother,
jointly filed a civil claim with the First Court in Belgrade. They
sought compensation for the pecuniary and non-pecuniary damage
suffered as a result of M.P.’s death, and repeated the
applicant’s assertions from the criminal proceedings. The claim
was directed against the Republic of Serbia and the PHC, and was
supplemented, inter alia, with the statement given by witness
A (see paragraph 11 above).
- Between
30 October 2007 and 20 October 2010 fifteen separate hearings were
held or adjourned.
- Following
the settlement with the Government (see paragraph 35 below), on 8 May
2011 the applicant and her son withdrew their civil claim.
COMPLAINTS
- The
applicant complained, under Articles 2 and 3 of the Convention, about
the respondent State’s failure to provide her son with adequate
and timely medical treatment, resulting in his death, as well as to
carry out an effective official investigation in this respect.
- Under
Article 3 of the Convention, the applicant further complained about
the physical abuse suffered by her son at the hands of prison staff,
the absence of an effective official investigation in this regard,
and the failure of the prison authorities to prevent the
proliferation and usage of narcotics inside their institution.
- Lastly,
under Article 13 taken together with Articles 2 and 3 of the
Convention, the applicant complained that: (i) at the relevant time,
the Serbian Criminal Code had not recognised torture as a separate
criminal offence; (ii) the competent public prosecutor had refused to
launch an investigation into the applicant’s abuse/death ex
officio; and (iii) the applicant therefore had had no choice but
to personally take over the prosecution of the case in the capacity
of a subsidiary prosecutor, notwithstanding the fact that she had
never had access to the crucial information in possession of various
Government bodies and/or State-run institutions.
THE LAW
- The
Court notes that, after the Government had been informed of the
application on 17 February 2011 (Rule 54 § 2 (b) of the Rules of
Court), they offered to the applicant to settle the case. Thus, on 20
April 2011 the Government and the applicant signed a settlement,
which in its relevant parts reads as follows:
“1. The Republic of Serbia, represented by Dr
Slavoljub Carić, Agent of the Republic of Serbia before the
European Court of Human Rights, recognizes that the Republic of
Serbia had breached Articles 2, 3 and 13 of the European Convention
of Human Rights and Fundamental Freedoms, in the case of the death of
[M.P.].
[...]
3. The Republic of Serbia, with an apology for the death
of [M.P.] undertakes to pay to the account of Ms Mila Petković
[...] the amount of 40,000 euros, converted to dinars, within
reasonable time from the day of this settlement, which amount will
cover for any pecuniary and non-pecuniary damage as well as costs of
proceedings before domestic and international courts.
4. The Republic of Serbia undertakes to conduct an
efficient and meaningful investigation into the circumstances of
[M.P.]’s death, within the investigation no. Ki 49/09-49,
before the Municipal Court in PoZarevac.
5. The applicant shall, after the payment of 40,000
euros converted to dinars [...] give up any claims against the
Republic of Serbia on any grounds raised in the application no.
31169/08 submitted to the European Court of Human Rights, as well as
any claim in the civil proceedings no. P 68290/10 which is pending
before the First Court of First Instance in Belgrade.
6. The applicant undertakes to withdraw the application
submitted to the European Court of Human Rights under no. 31169/08,
after the payment is made, as she finds that she no longer has victim
status in relation to the right to a fair hearing within the meaning
of Article 34 of the European Convention on the Protection of Human
Rights and Fundamental Freedoms. Furthermore, she undertakes to
withdraw her claim in the civil proceedings no. P 68290/10 which is
pending before the First Court of First Instance in Belgrade.”
- On 13 May 2011 the amount of 40,000 euros was paid to
the applicant’s account. On 18 May the applicant withdrew her
claim before the First Court of First Instance in Belgrade. On even
date the applicant filed a submission to the Court, seeking to
withdraw her application before the Court.
- The
Court reiterates that Article 37 of the Convention in the
relevant part reads as follows:
“1. The Court may at any stage of the
proceedings decide to strike an application out of its list of cases
where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue
his application; or
(b) the matter has been resolved;
...
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
- The
Court takes note that following the settlement reached between the
parties the matter has been resolved and that the applicant does not
wish to pursue his application (Article 37 § 1 (a) and (b) of
the Convention). It is satisfied that the settlement is based on
respect for human rights as defined in the Convention and its
Protocols and finds no reasons to justify a continued examination of
the application (Article 37 § 1 in fine of the
Convention).
- In
view of the above, it is appropriate to strike the case out of the
list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Françoise Elens-Passos Françoise
Tulkens
Deputy
Registrar President
