FOURTH SECTION
CASE OF CEKA v. ALBANIA
(Application no.
26872/05)
JUDGMENT
(Striking out)
STRASBOURG
23 October 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Ceka v. Albania,
The European Court of Human Rights (Chamber), sitting as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 2 October 2012,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case originated in an application (no.
26872/05) against the Republic of Albania lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Albanian national, Ms Gjyste Ceka (“the
applicant”), on 13 July 2005.
The applicant was represented by Mr A. Perlesi, a
lawyer practising in Rrubik, Mirditë. The Albanian Government (“the Government”)
were represented by their then Agent, Ms E. Hajro and, subsequently, by Ms L. Mandia
of the State Advocate’s Office.
The applicant alleged that her son’s death in
police custody amounted to a breach of Articles 2 and 3 of the Convention.
By a decision of 22 February 2011, the Court
declared the application admissible.
By letter of 16 July 2012 the Government submitted
a declaration on the basis of which it requested the Court to strike the case
out of its list of cases. By letter of 5 September 2012 the applicant submitted
comments thereon.
THE FACTS
The applicant was
born in 1963 and lives in Mirditë. The case concerns the death of the applicant’s
son while he was in police custody.
The facts of the
case, as submitted by the parties, are summarised below. A more detailed
description can be found in the Court’s decision on the admissibility of this
case (Ceka v. Albania (dec.), no. 26872/05, 22 February 2011).
On 6 May 2004 the applicant’s twin sons, C and E,
were detained by the Rrubik police force and placed in custody on suspicion of
robbery. They were almost 17 years of age at the material time.
The applicant’s sons shared a cell with two other
inmates, K and B. On 5 July 2004 the applicant’s son, E, and his cellmate,
K, began to fight. The on-duty guard, G, alerted the control centre with a view
to restoring order in the detention cell. V, the control centre officer, opened
the door of the cell and took E and K to the interrogation room of the
pre-trial detention facility for questioning. G escorted V and the two detainees.
Upon questioning both detainees about the fight,
V left the interrogation room to question the other two inmates who had been in
the same cell. G remained with E and K in the interrogation room, where E
agreed to make peace with K provided he was not made to share the cell with K.
This request was refused by G who began arguing with E, as a result of which E
was slapped hard on his face and neck and shoved out of the room. In the
corridor, on the way to his cell, E lost consciousness and fell to the ground.
When E regained consciousness, he complained
about a painful headache, nausea and generally poor state of health. He was
taken to the Rrëshen hospital in the afternoon of the same day and, upon
repeated complaints, in the early hours of the morning of 6 July 2004.
The doctors decided to send him for specialised
treatment at the Tirana Military Hospital. The applicant submitted that E had
lapsed into a coma by the time he was transported by ambulance to Tirana.
Transportation by air was impossible. E died at 4 p.m. on 8 July 2004.
E’s death certificate indicated that he had
suffered from “beatings with a hard, bruising, blunt object” which led to his
death as a result of “cerebral haemorrhage and epidural haematoma”.
A. The criminal investigation
On 7 July 2004, following the notification of
the fight between inmates, a report on the inspection of the scene was drafted.
On 8 July 2004 the expert medical report stated
that E had lapsed into a coma as a result of a collision with hard objects. The
report further stated that the damage caused was life threatening and was in
the category of serious injuries.
On 9 July 2004 police officers G and V were
suspended from work.
On 10 July 2004 G and V were remanded
in custody. G was accused of breaching the rules on on-duty service (shkelja
e rregullave të shërbimit të rojes) in accordance with Article 41 § 2 of
the Military Criminal Code (“MCC”). V was accused of violating the escort rules
(shkelja e rregullave të shoqërimit) in accordance with Article 44 § 1
of the MCC.
The forensic report of 13 July 2004 on the post-mortem
examination of E provisionally concluded that death had been caused by a
fracture of the base of the skull, epidural haematoma and cerebral haemorrhage,
inflicted by a hard, flat, blunt object with a relatively high intensity. The
report provided that the above injuries which led to the death of the applicant’s
son could have been caused by his falling on the floor, on the right side of
his skull. The final determination of E’s death would be given after a
microscopic examination of the corpse.
On 21 July 2004, following the microscopic
examination of E’s corpse, the forensic expert concluded that E’s death had
been caused by the contusion of the brain when the right hand side of his head
hit the floor.
Between 7 July 2004 and 8 September 2004 several
witnesses’ statements were made concerning the incident and E’s state of health.
A detailed description of the witness statements is contained in the Court’s
decision on the admissibility of the case.
On 8 October 2004 the Tirana prosecutor’s
office, following a prior decision by the Mirditë prosecutor’s office to
transfer the file, lodged a bill of indictment against G and V with the Tirana
Military District Court (“the Military District Court”).
The applicant was not informed of the
investigation into her son’s death or of the ensuing domestic court proceedings
against G and V.
B. Criminal court proceedings against V and G
1. Criminal court proceedings against V
On 4 November 2004 V was dismissed from the
police force for abuse of duty resulting in the death of a detainee in
pre-trial detention.
On 8 November 2004 the Military District Court
found V guilty of breaching the escort rules under the first paragraph of
Article 44 of the MCC as he was not supposed to intervene and escort inmates to
the interrogation room by himself. The trial court sentenced him to ten months’
imprisonment. In accordance with the summary procedure which had been granted
to him alone at the material time, the sentence was commuted to six months and
twenty days’ imprisonment. According to the decision, the sentence started to
run from the date of V’s arrest, 10 July 2004 (see paragraph 17 above). The
decision became final on an unspecified date, no appeal having been filed
against it.
2. Criminal court proceedings against G
On 4 November 2004 G was dismissed from the
police force for abuse of duty resulting in the death of a detainee in
pre-trial detention.
On 10 December 2004 the Tirana Military District
Court (“the Military District Court”), as a result of the use of the summary
procedure, sentenced G to eight months’ imprisonment in accordance with the
first paragraph of Article 41 of the MCC. According to the decision, the
sentence started to run from the date of G’s arrest, 10 July 2004 (see
paragraph 17 above).
On 18 January 2005, following the prosecutor’s
appeal, the Tirana Military Court of Appeal sentenced G to 3 years’
imprisonment relying on the second paragraph of Article 41 of the MCC and, in
accordance with the summary procedure which had been granted to him afterwards,
the sentence was commuted to two years’ imprisonment. The Court further ordered
G’s conditional release for two years as he had served the sentence imposed by
the Military District Court and had already been released. The decision became
final, no appeal having been filed against it.
C. Civil action for damages
On an unspecified date the applicant brought a
civil claim against the Mirditë police commissariat seeking compensation for
non-pecuniary damage for the death of her son.
On 23 January 2007 the Mirditë District Court
awarded her 2,301,750 leks (ALL), approximately 17,257 euros (“EUR”) at the
material time. The Mirditë District Court accepted that, while in detention,
the applicant’s son had been beaten up by police officers. It observed that the
police officers had not promptly informed doctors of the causes of E’s
deteriorating health. Neither his family nor his representative had been
informed in a timely manner. Furthermore, his state of health had not been
reflected in the prison medical records. In the District Court’s view, the
above circumstances engaged the direct responsibility of the police
commissariat for the death of the applicant’s son. The police commissariat had
failed to respect and adhere to the necessary procedures.
On 31 January 2008, following an appeal by the
defendant, the Tirana Court of Appeal upheld the Mirditë District Court’s
decision of 13 January 2007.
On 31 March 2009 the Government informed the
Court that an appeal by the defendant was currently pending before the Supreme
Court.
On 12 February 2010 the Government informed the
Court that the domestic courts’ award had been paid in full on 11 December
2009. The relevant supporting documents for this purpose confirmed that the
applicant had been paid ALL 3,654,852, which also included legal costs and
expenses.
On 16 January 2012 the State
Advocate’s Office lodged a civil action against the applicant’s lawyer with the
Lezhë District Court for the return of money that he has allegedly been paid
without justification by way of legal costs and expenses. The proceedings are pending.
THE LAW
The applicant complained that there had been a
breach of Articles 2 and 3 of the Convention on account of her son’s death in
police custody and the lack of an effective investigation.
By a letter of 16 July 2012 the Government
informed the Court that they proposed to make a unilateral declaration with a
view to resolving the issues raised in the application. They further requested
the Court to strike out the application in accordance with Article 37 of the
Convention.
The declaration, which bore the date of 13 July 2012, reads as
follows:
“The Government regret the death of the applicant’s son in
police custody resulting from the use of violence by State agents. They note in
this connection the findings of the domestic courts concerning the involvement
of police officers in the death of the applicant’s son and the award of 17,257
euros (“EUR”) made by the domestic courts to the applicant.
The Government further accept that the investigation carried
out into the circumstances surrounding the death of the applicant’s son was not
compatible with Articles 2 and 3 of the Convention, and that this matter was
not addressed in the above-mentioned domestic proceedings.
The Government declare, by way of this unilateral declaration,
their acknowledgment of a breach of the procedural limb of Articles 2 and 3 of
the Convention. The Government undertake to ensure that acts of violence
committed by State agents against detainees, whether in the circumstances of
the death of the applicant’s son or in other, different instances, shall be
prevented, promptly investigated and adequately punished in accordance with the
requirements of Articles 2 and 3 of the Convention.
The Government are prepared to pay the applicant as just
satisfaction the sum of EUR 10,000 (ten thousand euros) to cover any and all
pecuniary and non-pecuniary damage as well as any and all costs and expenses
plus any tax that may be chargeable to the applicant. The above amount takes
account of the award already made to the applicant by the domestic courts in
the domestic civil proceedings.
The above amount shall be converted into the national currency
at the rate applicable on the date of payment and will be payable within three
months from the date of delivery of the judgment. From the expiry of the
above-mentioned three months until settlement, the Government undertake to pay
simple interest on it at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points.
This payment will constitute the final settlement of the case.”
In her letter of 4 September 2012 the applicant appeared
not to accept the Government’s unilateral declaration but maintained the
complaints about a breach of her son’s Convention rights. Her lawyer further
submitted that the Government had been trying to intimidate him with a view to his
withdrawing from representing the applicant.
The Court recalls that Article 37 of the
Convention provides that it may at any stage of the proceedings decide to
strike an application out of its list of cases where the circumstances lead to
one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that
Article. Article 37 § 1 (c) enables the Court in particular to strike a case
out of its list if:
“for any other reason established by the Court, it is no longer
justified to continue the examination of the application”.
It also recalls that in certain circumstances,
it may strike out an application under Article 37 § 1 (c) on the basis of a
unilateral declaration by a respondent Government even if the applicant wishes
the examination of the case to be continued. It has done so, in particular, in
the context of the examination of Article 2 complaints made with the Court
(see, for example, Alder v. the United Kingdom (striking out),
no. 42078/02, 22 November 2011;
Haran v. Turkey (striking out), no. 25754/94, 26 March 2002;
and, Akman v. Turkey (striking out), no. 37453/97, ECHR 2001-VI.
Moreover, the Court has accepted a respondent
Government’s unilateral declaration in the examination of complaints made under
other Articles of the Convention (see, for example, Meriakri v. Moldova (striking out), no. 53487/99, 1 March 2005 in the context of complaints made
under Article 8 of the Convention as regards the respect for the applicant’s
correspondence; Facondis v. Cyprus (dec.), no. 9095/08, 27 May 2010 in
the context of complaints made under Articles 6 § 1 and 13 of the Convention as
regards the length of proceedings and the lack of an effective remedy thereof; Jamiyev
v. Azerbaijan (dec.), no. 11916/06, 30 September 2010 in the context
of complaints made under Article 6 §§ 1 and 3 (d) of the Convention as regards
the unfairness of criminal proceedings; Grosu v. Moldova (dec.),
no. 36170/05, 2 November 2010 in the context of complaints made under Article 3
of the Convention as regards the conditions of detention; Asociatia
Cetateneasca Lichidarea Consecintelor Pactului Molotov-Ribbentrop v. Moldova
(dec.), no. 32118/06, 2 November 2012 in the context of complaints made
under Article 11 of the Convention as regards the applicant organisation’s
freedom of assembly; and, Malon v. France (dec.), no. 13192/10, 15
February 2011 in the context of complaints made under Article 5 § 3 of the
Convention as regards the length of detention).
To this end, the Court will examine carefully
the declaration in the light of the principles emerging from its case-law (see,
for example, Alder, cited above, § 30; Haran, cited above, § 23; Akman,
cited above, §§ 30-31; and, in particular, Tahsin Acar v. Turkey, [GC],
no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland
(dec.) no. 11602/02, 26 June 2007; and, Sulwińska v. Poland (dec.)
no. 28953/03, 18 September 2007).
The Court has established in a number of cases
its practice concerning complaints about a breach of Articles 2 and 3 of the
Convention, similar to those raised by the applicant in the instant case (see,
for example, Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII;
McKerr v. the United Kingdom, no. 28883/95, ECHR 2001 III; Hugh Jordan
v. the United Kingdom, no. 24746/94, ECHR 2001 III (extracts); Paul and
Audrey Edwards v. the United Kingdom, no. 46477/99, ECHR 2002 II; and, Ali
and Ayşe Duran v. Turkey, no. 42942/02, 8 April 2008 as regards
the nature and extent of the obligations of respondent States under Article 2;
and, Tomasi v. France, judgment of 27 August 1992, §§ 108-11, Series A
no. 241-A; Assenov and Others v. Bulgaria, 28 October 1998, Reports
of Judgments and Decisions 1998-VIII; Selmouni v. France [GC],
no. 25803/94, ECHR 1999-V; Labita v. Italy [GC], no. 26772/95,
ECHR 2000-IV; and Abdülsamet Yaman v. Turkey, no. 32446/96, 2
November 2004 as regards the nature and extent of the obligations of respondent
States under Article 3).
Having regard to the nature of the admissions
contained in the Government’s declaration, in particular a clear acknowledgment
of procedural breaches of Articles 2 and 3 of the Convention, as well as the
amount of compensation proposed, which would appear to be comparable with the
amounts awarded in similar cases, the Court considers that it is no longer
justified to continue the examination of the application (Article 37 § 1(c)).
The Court further notes that criminal proceedings were brought against the
police officers which led to their conviction. Moreover, the Court takes note
of the respondent State’s general undertaking to conduct an effective
investigation and adequately punish those responsible for acts of violence
against detainees. It cannot emphasise enough the existence of a sufficient
element of public scrutiny of the investigation as well as the involvement of
the next-of-kin of the victim in the procedure. Finally, it is understood that
the declaration only concerns the application before this Court and that the
adoption of this judgment is without prejudice to any pending or future
domestic proceedings.
In light of the above considerations, and in
particular given the clear and extensive case-law on the topic, the Court is
satisfied that respect for human rights as defined in the Convention and the
Protocols thereto does not require it to continue the examination of the
application (Article 37 § 1 in fine).
In view of the above it is appropriate to strike
the case out of the list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Takes note of the terms of the respondent
Government’s declaration under Articles 2 and 3 of the Convention and of the
modalities for ensuring compliance with the undertakings referred to therein;
and
2. Decides to strike the application out of
its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English, and notified in writing on 23 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
