ILIEVSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA - 20136/11 - Chamber Judgment [2015] ECHR 469 (07 May 2015)

In the case of Ilievska v. the former Yugoslav Republic of Macedonia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 14 April 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 20136/11) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Ms Marina Ilievska (“the applicant”), on 24 March 2011.

2. The applicant was represented by Mr B. Angelovski, a lawyer practising in Kriva Palanka. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

3. The applicant complained that she had been subjected to police brutality during her transfer from Kriva Palanka to Skopje Bardovci (psychiatric) hospital, in violation of her rights under Article 3 of the Convention.

4. On 19 February 2014 this complaint was communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1976 and lives in Kriva Palanka.

A. The applicant’s transfer to Bardovci hospital on 29 October 2009

6. On 24 April 2009 the applicant was operated on for stomach cancer and subsequently underwent chemotherapy.

7. On 29 October 2009 she had been feeling anxious and distressed, and her husband requested medical assistance from Kriva Palanka hospital (110 km from Skopje). Dr M., a general practitioner, gave an instruction that the applicant was to be transferred to a psychiatric clinic in Skopje. Dr C.T., a specialist in neuropsychiatry in Kriva Palanka hospital, also gave instructions for her to be transferred to that clinic with police assistance.

8. Still on 29 October, at around 5 pm., an ambulance arrived at the applicant’s house in the village of Uzem. Two police officers, who were later identified as M.N. and I.A. in the subsequent criminal proceedings, assisted with the applicant’s transfer to the Bardovci psychiatric hospital in Skopje, where she remained until 31 October 2009.

9. The relevant parts of a notice of her discharge, dated 2 November 2009 from Bardovci hospital provide as follows:

“[This is the] first admission of (the applicant) to this hospital; it was carried out with the assistance of the police from Kriva Palanka.

According to the limited information obtained from (the applicant’s) husband by telephone, (it is known) that since summer this year, when she was diagnosed with and treated for stomach cancer, (the applicant) had become ... melancholic, lethargic, and had threatened with committing suicide.

When admitted, [the applicant] was malnourished, dehydrated, and had several haematomas of different sizes, most probably of recent date (најверојатно од понов датум) ... Concerning her psychological state she was depressed, anxious, tearful, and fixated on her poor state of health (cancer) ...she was burdened with depressive ideas and had a paranoid attitude towards her husband, which may be well-founded ...

She is discharged without having been examined or treated, at her husband’s request.”

10. Following her discharge from the hospital in Skopje, the applicant was on the same day admitted to the Kriva Palanka hospital. A handwritten medical certificate was issued and entered in the hospital’s records under no. 2131. At the applicant’s request a transcript of this certificate was made by Dr G.S. The relevant parts of this certificate state that:

“[According to the applicant] she was handcuffed by the police during her transfer to Bardovci psychiatric hospital, as instructed by a doctor. Objectively: haematoma measuring 2 x 6 cm on both forearms around the wrist joints; 3 hematomas measuring 1 x 2 cm on both lower legs. On the right hip, (a haematoma) measuring 1 x 2 cm.

Regarding these injuries, [the applicant] says that they were inflicted by kicks and blows.”

11. Still on 31 October 2009 the applicant was also examined by Doctor M. (see paragraph 7 above). The relevant parts of the medical certificate issued on that date read as follows:

“On 29 October 2009 at about 5 pm., on a request by (the applicant’s) husband and as suggested in (a neuropsychiatric opinion), the patient was transported to Skopje psychiatric clinic. The applicant states that she was abused during the transfer: she was hit and punched on the legs, [a third person] sat on her legs, and her hands were handcuffed behind her back. When she arrived she was treated violently by hospital staff.

When examined ... [the following] is observed: [she] is upset; a haematoma and a scratch on the lower legs, thus 4-5 scratches on the right side measuring 1 x 2 cm; on the left side 4-5 (scratches) measuring 1 x 2 cm and 2 x 2 cm; haematomas and (two) scratches on the stomach measuring 3 x 1 cm; 5 scratches on the back measuring 5 x 6 cm; some small haematomas ...

The patient has visible injuries caused by a trauma, namely hitting and punching.

Opinion: light bodily injury.”

12. On 15 February 2010 Doctor M. issued a certificate that on 29 October 2009 the applicant had been examined and that an instruction had been given for her to be transferred to Skopje psychiatric clinic.

13. In support of the application before the Court, the applicant provided four photographs of her, showing the following injuries: five scratches on the lower and middle part of the back; two scratches and a haematoma on her stomach, and several haematomas on the lower legs.

B. Police reports regarding information obtained from third parties

1. Statement by S.V., a doctor at Kriva Palanka hospital

14. On 21 November 2009 the police drew up an official note (службена белешка) regarding information obtained from Dr S.V. As indicated in the note, S.V. decided, “for the sake of truth”, to provide relevant information in reaction to a television interview broadcasted on 3 November 2009 in which the applicant had stated that she was ill-treated by police officers during her transfer to Bardovci hospital. During the interview she showed the injuries that she had allegedly sustained. The relevant parts of the note read as follows:

“... I want to say that on 27 October 2009 at 9 pm., I was called, through the duty medical centre of Kriva Palanka hospital, to intervene in an urgent case reported by (the applicant’s) husband. I arrived at a pensioners’ home in Kriva Palanka, where (the applicant and her husband) were waiting. (The husband) told me that (the applicant) had injured herself, namely that she had hit her body and head against a wall and a bed; her face was covered with blood, and there was blood on the floor in front of the door. That suggested that she had had a nervous breakdown, for which I prescribed treatment.

In my opinion and in view of the foregoing, it is most likely that the injuries she showed to the cameras were self-inflicted on the date indicated above, which was when I intervened.”

2. Statement by L.S., a neighbour of the applicant

15. On 3 December 2009 L.S. provided information to the police in relation to media statements by the applicant and her husband that the applicant had been ill-treated by the police. L.S. stated that the applicant’s husband had beaten the applicant on three occasions (she did not specify the exact dates when the alleged beatings had happened, but she confirmed that it had been on “the nights of Thursday, Friday and Saturday”). She further stated:

“During the Sunday night two women, most likely journalists, visited [the applicant’s husband]. On the Tuesday [the applicant’s husband] invited residents to watch on television ‘how do the police from Kriva Palanka work. I put them in a mould; I’ll take a lot of money from them’.

I personally believe that [the applicant’s] injuries were inflicted by [her husband] who, while intoxicated, beats her up every day in front of their children.”

16. The note further indicated that four individuals (whose identity was specified), together with other residents in the building in which the applicant lived, could be interviewed regarding the case.

3. A letter regarding L.S.’s statement

17. On 11 January 2010 the police informed the applicant’s husband that on 3 December 2009 L.S. had made a complaint against him, and that an official note had been drawn up. As stated in the letter, both the applicant’s husband and L.S. had been advised to stop arguing in future. The letter further indicated that L.S. had been warned that in the event of false reporting a misdemeanour complaint would be lodged against her.

C. Criminal proceedings instituted by the applicant

18. In submissions of 27 January and 18 February 2010 the applicant brought criminal charges of medical malpractice against Dr C.T. alleging that he had instructed her to undergo a psychiatric examination without examining her, against V.S., a nurse who had accompanied the applicant during her transfer to Skopje (she had been sitting in the front passenger seat), and against M.N. and I.A., the police officers, for inflicting ill-treatment and mild bodily injury. She alleged that on 29 October 2009 she had been distressed. In the circumstances, her husband had gone to Kriva Palanka hospital, where Dr C.T. had decided that she be transferred to Skopje psychiatric clinic with assistance from the police. Doctor M. had also issued a recommendation in this respect (see paragraph 7 above). The applicant claimed, inter alia, that M.N. and I.A. had forcibly put her in the ambulance, stating that they had grabbed her arms and dragged her to the ambulance, ignoring her cries of pain from the surgery. After she had been put in the ambulance, she had been forcibly made to lie on a bed with her hands handcuffed behind her back. I.A. sat on her legs. They had gone, firstly, to Kriva Palanka hospital where Dr C.T. had given instructions, by telephone, to V.S. to administer an injection. The applicant alleged that on the way to Skopje she had been hit, punched and threatened by the police officers. As a result, she had “several injuries (haematomas) all over the body and limbs and five to seven marks on the back from the handcuffs, of which I have photographs”. In support of her complaint she attached medical certificates (see paragraphs 9, 10, 11 and 12 above).

19. On 31 March 2010 the public prosecutor contacted the Ministry of the Interior with a request for further information regarding the incident. In reply, on 26 May 2010 the Sector for Internal Control and Professional Standards within the Ministry of the Interior submitted a “special report” regarding the case. It referred to statements (which it submitted in support) which Dr C.T., the applicant and her husband had given to the police between 13 and 15 April 2010.

20. Dr C.T. confirmed that on 29 October 2009 the applicant’s husband had told him that they lived in the pensioners’ home in Kriva Palanka; that the applicant’s mental health was poor; that she had arrived at their family house in the village of Uzem (see paragraph 8 above) without his consent; that she had broken a window to get in; that she had been aggressive and was capable of killing herself, their children or himself; that she had been uncooperative; and that she had refused to sleep or eat.

21. In the statement, the applicant’s husband confirmed that the applicant’s mental health had deteriorated since the stomach surgery, and that he had explained “her condition” to the doctors M. and C.T. during his visit of 29 October 2009. He also informed the police officers M.N. and I.A. about her state of health while he was in the ambulance with them on the way to their family house. When they got to the house he had asked the police officers to wait outside so that he could explain to the applicant that she was going to be taken to a psychiatric hospital. When the police officers had entered the house their children had started crying and putting their arms around the applicant. The police officers had forcibly separated the children from the applicant; they had grabbed her by the arms and dragged her (while she was on her knees) towards the door. After the situation had calmed down and in order not to harm the applicant, he had taken her by the legs, and he and the police officers had taken her to the front of the ambulance. Then the police officers had put her in the ambulance; they had handcuffed her hands behind her back and made her lie on a bed. To keep her still, I.A. had sat on her legs. The police officers had remained with the applicant in the rear of the ambulance, while V.S. had sat in the front passenger seat. While he had been occupied with the children in the house, the ambulance had left the scene. The next day he had found out that the applicant had been taken to Bardovci hospital; he went there, but no visits were allowed that day.

22. In depositions made on 15 April 2010 the applicant confirmed that on 29 October 2009 she had consented to be taken to Skopje psychiatric clinic; that the police officers had grabbed her hands and dragged her; that before she got into the ambulance M.N. had hit her on the back with a baton; and that her husband had helped M.N. and I.A. to bring her to the front of the ambulance. She also stated that no infusion or injection had been administered when they had stopped at Kriva Palanka hospital; that during the transfer to Skopje hospital (the ambulance had been driven at excessive speed) her hands had been handcuffed behind her back; that I.A. had been sitting on her legs and that she (I.A.) had hit her on the legs and head with a truncheon; that M.N. had grabbed her hair and had tightened up the handcuffs; that both M.N. and I.A. had punched her and hurt her legs. When she was admitted to Bardovci hospital she was bleeding and had bruises.

23. The “special report” of the Ministry further referred to statements given by doctors S.V. and L.S. (see paragraphs 14 and 15 above). It also specified that the police officers concerned had denied that they had used any force against the applicant, and that the applicant had used offensive language against them and had been screaming loudly. The record also stated that V.S. (the nurse) and J.D. (the driver of the ambulance), had also denied that the police officers had used any force against the applicant. The report went on to state:

“when (the police officers) arrived at (the applicant’s) house, they were warned by the (applicant’s) husband to be cautious because Marina had a knife with which she might assault them. For that reason, he proposed going into the house first to tell (the applicant) that she was going to be taken to Skopje for medical treatment. After five minutes, (the applicant’s husband) went out and called (the police officers) into the house. The police officers went in and told Marina that they would have to transfer her by ambulance to a health institution in Skopje. In response to that, Marina said to (her husband): do I deserve this from you, being taken for medical treatment; I do not belong there, you should go there because you are drunk every day and you constantly abuse and hit me and the children; I’m covered in bruises because of you ...

Throughout the journey, (the applicant) used offensive language against the police officers and the nurse, she [the applicant] was very aggressive and angry, and she was screaming loudly and trying to hurt herself by hitting her head against the window of the ambulance. The police officers and the nurse had been forced during the entire transfer to hold her hands in order to prevent her from hurting herself or some of them”.

24. On 8 June 2010 the Kriva Palanka public prosecutor’s office, referring to the Ministry’s “special report” and the discharge notice from Bardovci hospital, rejected the applicant’s complaint against the accused (the decision noted that the nurse V.S. had died in the meantime), finding that the alleged offences were not subject to State prosecution. On 14 June 2010 the applicant, in the capacity of a subsidiary prosecutor, took over the prosecution and brought private charges before the Kriva Palanka Court of First Instance (“the trial court”) on the same charges as above (see paragraph 18 above).

25. On 6 October 2010 the trial court heard Dr C.T., M.N., I.A., the applicant, who was not legally represented, and her husband. According to the transcript of the court hearing, Dr C.T.’s statement was consistent with the statements he had made to the police (see paragraph 20 above).

26. The relevant parts of M.N.’s statement, as described in the court record, read as follows:

“(the applicant’s husband) arrived at the police station and said in front of colleagues and himself (M.N.) that he had been afraid that something could happen to his children or (to the applicant), because, when she had gone to Uzem she had taken a knife and a telephone wire; they went by ambulance to Uzem ... [when they went into the house] (the applicant) became upset and grabbed one of the minor children in her arms; (the applicant’s) husband took the child away, and because she did not want to get into the vehicle he (M.N.) took her arms and her husband took her legs and they put her in the ambulance.”

27. I.A. confirmed M.N.’s statement, and stated that she had held the applicant down with her hands to prevent her from standing up. Both M.N. and I.A. denied that they had used force or handcuffs against the applicant. They also stated that a tranquilliser had been administered to the applicant before they had left for Skopje.

28. The applicant objected to the defendants’ statements. She further denied that her husband had helped the police officers to take her to the ambulance; on the other hand, she reiterated that the police officers had grabbed her and put her into the ambulance; that she had been handcuffed, and that M.N. had hit her with a truncheon; that I.A. had sat on her legs during the transfer; that I.A. had held her mouth closed to stop her talking, and had hit and punched her.

29. The applicant’s husband confirmed that he had requested that Dr C.T. give an instruction for the applicant to have treatment. When the applicant had refused to get into the ambulance the police officers had grabbed her by the arms and dragged her towards the ambulance. In order not to hurt her, he had grabbed the applicant by the legs and put her in the vehicle. M.N. had handcuffed the applicant. The applicant’s husband denied saying that the applicant had a knife and a wire.

30. On 6 October 2010 the trial court delivered a judgment acquitting C.T., M.N. and I.A. for lack of evidence. It also discontinued the proceedings against V.S. The trial court established that:

“The accused doctor C.T. ... acted conscientiously and in accordance with his duty, and at the request of [the applicant’s] husband who had informed him about [the applicant’s] condition, he provided appropriate treatment; he drew up a report and instructed that she be transferred with police assistance to Skopje psychiatric clinic. [The applicant] was not examined by a specialist (не и бил извршен специјалистички преглед) because she was brought [to the hospital] outside working hours (and) [Dr C.T.] was far away from the office; after [V.S.] had told him by telephone about [the applicant’s] condition, he instructed that a tranquilliser injection be given and that [the applicant] be transported to Skopje. The accused M.N. and I.A., police officers in Kriva Palanka police station called to provide assistance during [the applicant’s] transfer by ambulance to Skopje psychiatric clinic, acted professionally and in accordance with the law and their powers; they did not use any physical force against the applicant and they did not inflict any injuries on her.

The court established the above on the basis of evidence admitted at the trial, namely: oral evidence from the accused, who did not admit the alleged criminal offences, as well as the material evidence from the case file ... of the Kriva Palanka prosecutor’s office which ... [on the basis of the Ministry’s special report] rejected [the applicant’s] criminal complaint ...

All these items of evidence are clear, undisputable, categorical, and inter-related; there is no reason for the court to question their reliability ... relying on [this evidence] the court delivers judgment, finding that [the evidence] does not prove that the accused committed the criminal offences with which they are charged.

The court examined [the applicant’s] statement that ... the police officers had dragged her into the ambulance; that she had been handcuffed, and that M.N. had hit her with a truncheon ... that during the transfer she had been restrained with handcuffs; that police officer I.A. had been sitting on her legs and had closed her mouth to stop her talking; and (that I.A.) had hit and punched her ...

The court examined the statement of [the applicant’s husband] that ... the police officers had grabbed [the applicant] by the arms and dragged her towards the ambulance, and in order not to hurt her, because she had recently had surgery, he had taken her legs and helped to put her in the ambulance; that police officer M.N. had put her head between her legs and had handcuffed her ...

The court examined evidence submitted with the criminal complaints (medical reports described in paragraphs 7, 9, 10, 11 and 12 above), and photographs, but they did not contain anything that could lead to a different assessment of the facts from that established [by the court]. (This evidence) is medical evidence, on the basis of which the court established that there had been an instruction for the applicant to be treated at Skopje psychiatric clinic, and a medical certificate had been issued for the visible injuries that she had; that on 29 October 2009 she had been admitted to (Bardovci) hospital; that (at that time) she had been depressed and had a depressive and paranoid attitude towards her husband; that [she] had several haematomas of recent date ... four photographs showed bruises and scratches on her legs and body.

It is undisputed that owing to [the applicant’s] condition she needed to be transferred for treatment with assistance from the police; this was also what her husband had asked for. She was admitted to an appropriate institution for treatment and was then discharged at the request of her husband; the injuries described in the medical certificate and visible in the photographs - a haematoma and scratches, which were noted in the discharge notice upon [the applicant’s] admission, were of recent date. However, this evidence cannot lead to a conclusion that [the injuries] were inflicted during the transfer, namely on the day when [the applicant] was transferred by ambulance with assistance from the police.”

31. The applicant appealed against the judgment and reiterated her argument that she had been ill-treated, and complained that Dr C.T. and M.N. had given false statements; that the trial court’s judgment had been delivered after the trial court had held only one hearing; and that her husband had not given oral evidence before the trial court.

32. On 15 December 2010 the Skopje Court of Appeal upheld the facts established and the reasoning given by the trial court. The court reiterated that on the basis of a request by the applicant’s husband and in view of the applicant’s state of health Dr C.T. had correctly ordered urgent medical treatment with police assistance. The fact that the applicant had been hospitalised in Bardovci hospital instead of in Skopje psychiatric clinic, as instructed by Dr C.T., was irrelevant, as the medical care she had received was appropriate. The court confirmed that the police officers had acted in accordance with the law and their duties as police officers.

33. On 9 March 2011 the public prosecutor informed the applicant that there were no grounds for lodging a request for review of the legality of the judgments.

34. According to the applicant, she has never suffered from any mental disorder, nor was she receiving any medical treatment in that respect.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

35. The applicant complained that the treatment to which she had been subjected by the police officers during her transfer by ambulance to Skopje Bardovci hospital violated her rights under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

36. The Government did not raise any objection as to the admissibility of this complaint.

37. 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.

B. Merits

1. The parties’ submissions

(a) The Government

38. The Government submitted that the applicant’s allegations of police brutality had been based solely on the notice of her discharge from Bardovci hospital, which had specified that her injuries had been “most probably of recent date”; there was no other verbal or documentary evidence in support of her allegations. The discharge notice did not describe the injuries as “fresh”, as would have been the case had they been inflicted during the applicant’s transfer (which did not last more than an hour). The photographs submitted in support (see paragraph 13 above) showed scratches on the applicant’s back, which given their location (the upper part of the back), could not have been caused by the handcuffs with which the applicant had allegedly been restrained. As regards the alleged handcuffing, neither the photographs nor the medical evidence in the file confirmed that the applicant had sustained any injuries to her wrist joints, which would have been likely to be the case had the applicant been restrained with handcuffs which the defendants had then tightened up during the journey (see paragraph 22 above).

39. They further submitted that the applicant’s description of certain events to the domestic authorities had been rather inconsistent. In this connection they noted that it could not be established from the evidence submitted by the applicant in the domestic proceedings whether she had been examined by Dr M. before she was transferred to Skopje. In the criminal complaint (see paragraph 18 above), she referred to the certificate of 15 February 2010 (see paragraph 12 above), which contradicted the domestic courts’ finding that she had not been examined by any doctor prior to being transferred. Furthermore, the discharge notice by Bardovci hospital had not confirmed the applicant’s allegation that she was haemorrhaging when she was admitted to that hospital (see paragraph 22 above). On the other hand, the defendants had consistently stated that they had had recourse only to such measures (such as holding the applicant’s arms and legs) which were appropriate to her state of health and were intended to prevent the applicant from hurting herself. They had neither handcuffed nor beaten up the applicant. In such circumstances, the Government concluded that the applicant’s injuries had been inflicted in another incident of “recent date”. They could have been a result of the applicant’s tendency to self-harm or have been inflicted by a third person. In this connection the Government referred to statements by the doctors S.V. and L.S. (see paragraphs 14 and 15 above).

(b) The applicant

40. The applicant reiterated that she had been hit and punched during the transfer and restrained with handcuffs. All the injuries, including bruises caused by the handcuffs, were described in the medical certificate no. 2131, which had been submitted in support of the criminal complaint lodged against M.N. and I.A. She also referred to her personal situation, namely that she had recently had an operation on her stomach, and that she was physically not strong and weighed only 35 kg. In such circumstances, it was not necessary for her hands to be handcuffed behind her back. Lying down in such a position for an extended time had also caused the scratches on her back, which were visible in the photographs included in the file (see paragraph 13 above). She further reiterated that when she was admitted to Bardovci hospital she was bleeding from the nose and mouth, but she did not know why the discharge notice contained no reference to that fact. Lastly, she contested the reliability of the evidence given by S.V. and L.S. In this connection she noted that the evidence produced by them had not been presented to or assessed by the domestic courts.

2. The Court’s evaluation of the facts

41. Before examining the merits of the case, the Court will address the parties’ dispute regarding issues of fact relevant to the case.

42. The Court reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. It adopts 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 (see Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and the cases cited therein).

43. It further reiterates that it is sensitive to the subsidiary nature of its task, and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a “particularly thorough scrutiny” (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Georgiy Bykov v. Russia, no. 24271/03, § 51, 14 October 2010), even if certain domestic proceedings and investigations have already taken place (see Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007). In other words, in such a context the Court is prepared to be more critical of the conclusions of the domestic courts. In examining them, the Court may take into account the quality of the domestic proceedings and any possible flaws in the decision-making process (see Denisenko and Bogdanchikov v. Russia, no. 3811/02, § 83, 12 February 2009). The mere fact that the domestic courts found that the use of force did not amount to a criminal offence does not of itself absolve the Contracting State from its responsibility under the Convention (see Wiktorko v. Poland, no. 14612/02, § 49, 31 March 2009).

44. The Court has held on many occasions that where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Corsacov v. Moldova, no. 18944/02, § 55, 4 April 2006, and Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004). It is incumbent on the State to provide a plausible explanation of how the injuries were caused (see Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, §§ 108-11; Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V; and Ribitsch, cited above, § 34). In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government (see Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002).

45. The Court notes that the Government contested the applicant’s allegations of police brutality on two grounds: in the first place they denied that the applicant had been restrained with handcuffs, and secondly they denied that the injuries specified in the notice of her discharge from Bardovci hospital and visible in the photographs had been inflicted during her transfer to that hospital. As regards the handcuffs, they submitted that neither the photographs of the applicant nor the available medical evidence showed any injuries allegedly inflicted by handcuffs. As regards the remaining injuries, they submitted that they had been inflicted in a prior incident either by the applicant herself (given her propensity to self-harm) or by her husband (see paragraphs 14 and 15 above).

46. The Court notes that the applicant, in support of her allegations that she had been ill-treated by M.N. and I.A., who had been involved in her transfer to Bardovci hospital, provided several medical certificates and four photographs showing injuries (haematomas and scratches) on her body and limbs. This evidence was part of the file in the criminal proceedings against the police officers, and was also submitted in support of her application before the Court.

47. As regards the relevant medical evidence, the Court notes that the applicant produced three medical certificates: the discharge notice regarding her condition when she was admitted to Bardovci hospital, and two medical certificates of 31 October 2009, the date she was discharged from Bardovci hospital. The discharge notice did not provide a detailed description of the applicant’s injuries. It did not go further than stating that the applicant “had several haematomas of different sizes, most probably of recent date” (see paragraph 9 above). By contrast, the medical certificates of 31 October 2009 specified the number, position on the body and size of the injuries. Both certificates indicated that the applicant had several haematomas on the lower legs, and specified their size. The certificate produced by Dr M. further specified that the applicant had scratches and haematomas on her stomach and back (see paragraph 11 above). The photographs of the applicant showed all these injuries (see paragraph 13 above). In addition, and contrary to the Government’s assertion, the Court notes that the certificate no. 2131 issued by Kriva Palanka hospital specified that the applicant had haematomas on both wrist joints measuring 2 x 6 cm (see paragraph 10 above).

48. In such circumstances, the Court considers that the existence of the applicant’s injuries were sufficiently corroborated by appropriate evidence. The Court must establish whether the injuries were inflicted by the police as alleged by the applicant, namely while she was being transferred by ambulance to Bardovci hospital.

3. The Court’s assessment of the established facts

(a) The injuries on the applicant’s back, stomach and legs

49. The Court notes that according to the Government these injuries were inflicted in incidents that pre-dated the applicant’s transfer to Skopje. In support they referred to statements that S.V., a doctor at Kriva Palanka hospital, and L.S., a neighbour of the applicant, had given to the police on 21 November and 3 December 2009 respectively. Dr S.V. stated that on 27 October 2009 he had been called to intervene and provide medical assistance to the applicant who, as stated by her husband, had hurt herself by hitting her body and head against a wall and bed. L.S. stated that the applicant had been beaten by her husband on several occasions.

50. The Court notes that these statements were included in the Ministry’s “special report”. They were part of the case file that was examined by the public prosecutor, and subsequently by the courts (see paragraphs 23, 24 and 30 above). However, neither the public prosecutor nor the courts made any reference to these statements in their consideration of the facts and merits of the case. Furthermore, they did not take any steps to examine their veracity. Despite these shortcomings, the fact that the domestic authorities did not test this evidence does not prevent the Court from taking it into consideration (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 162, ECHR 2012, and Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008).

51. As regards the statement by L.S., the Court notes that it was not corroborated by other evidence that the applicant was physically abused by her husband. No history of domestic violence was brought to the attention of the domestic courts or the Court. The Court further observes that in the letter of 11 January 2010 in which the Ministry informed the applicant about the statement by L.S., it (the Ministry) stated that it had warned L.S. that if there was false reporting a misdemeanour complaint would be lodged against her. That the discharge notice stated that the applicant had a “paranoid attitude towards her husband which may be well-founded” is insufficient for the Court to find that the applicant’s injuries on the back, stomach and legs were inflicted by her husband.

52. As regards the statement by Dr S.V., the Court notes that it concerned an incident that allegedly happened two days before the critical date, in which the applicant had hurt herself by hitting her head and body against a wall and bed. As a result, her face was covered with blood and there was blood on the floor (see paragraph 14 above). Dr S.V. gave this statement to police on 21 November 2009 after he had seen an interview broadcast on 3 November 2009 in which the applicant showed injuries she had received. The Court notes that the alleged incident of 27 October 2009 and the subsequent intervention of Dr S.V. were not supported by any other evidence (for example, a copy of the medical records of Kriva Palanka hospital). However, that is insufficient, in itself, to undermine its reliability. In this connection the Court observes that the applicant has not presented it with any reason to cast doubt on its credibility. Accordingly, it will take into consideration and assess its probative value in the context of other available evidence. In this connection it attaches particular importance to evidence attesting to the applicant’s history of self-harm after she was operated on for stomach cancer. It observes that the discharge notice of Bardovci hospital noted that it had been informed by the applicant’s husband that the applicant was prone to self-harm (see paragraph 9 above). Dr C.T. also testified that the applicant’s husband had told him that the applicant was capable of killing herself (see paragraph 20 above).

53. In such circumstances, it considers that the Government have provided a plausible explanation as to how the applicant’s injuries on her back, stomach and lower legs (noted in the medical certificates of 31 October 2009 and visible on the photographs submitted in the file) might have been inflicted. It considers that it cannot establish “beyond reasonable doubt” that these injuries were inflicted by the police officers during the applicant’s transfer with ambulance to Skopje.

(b) The injuries to the applicant’s wrist joints

54. The Court notes that the Government denied that the applicant had been restrained by handcuffs during her transfer to Bardovci hospital. They maintained that there was no evidence that she had sustained any injuries in this respect.

55. However, the Court has already established (see paragraphs 47 and 48 above) that the applicant had haematomas on both wrist joints, each measuring 2 x 6 cm. These injuries were described in the medical certificate no. 2131 issued by Kriva Palanka hospital on 31 October 2009, notably on the same day she was discharged from Bardovci hospital. The Government did not produce any explanation as to how these injuries were inflicted. Furthermore, the Court does not consider that the injuries to the applicant’s wrist joints could have been inflicted in the incident of 27 October 2009 described by Doctor S.V. At this juncture, it notes that the Government conceded that such injuries could reasonably have been caused by handcuffing (see paragraph 38 above). The Government also made no submissions as to whether the applicant had not been handcuffed in the ambulance in the conditions she described. In such circumstances, the Court finds the applicant’s allegations regarding the use of handcuffs sufficiently convincing and established beyond reasonable doubt. It has to examine accordingly whether the use of handcuffs, in the circumstances of the case, was justified.

(i) General principles

56. The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions 1997-VIII, and the references cited therein).

57. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280, and Wieser v. Austria, no. 2293/03, § 36, 22 February 2007). In order for a punishment or treatment to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX).

58. The Court reiterates that Article 3 does not prohibit the use of force to effect an arrest. However, such force may be used only if indispensable and must not be excessive. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Wiktorko, cited above, § 47).

59. As regards the kind of treatment in question in the present case, the Court reiterates that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful arrest or detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary in the circumstances. In this regard, it is of importance for instance whether there is reason to believe that the person concerned would resist arrest or abscond, cause injury or damage, or suppress evidence (see Raninen, cited above, § 56).

(ii) Application to the present case

60. The Court notes at the outset that it is not disputed between the parties that on the critical date (29 October 2009) the applicant had an episode of mental distress; she had had such episodes since being operated on for stomach cancer (29 April 2009) and undergoing chemotherapy. That led her husband to seek treatment for her in Kriva Palanka hospital. Drs M. and C.T. both instructed that the applicant should be transferred to Skopje psychiatric clinic. The latter further instructed that the transfer was to be carried out with police assistance. Police officers M.N. and I.A., who were employed to provide the assistance, were also alerted to the applicant’s “condition” (see paragraph 21 and 23 above). In response to the applicant’s refusal to get into the ambulance and her emotional behaviour when they arrived at her house (see paragraphs 21 and 22 above), M.N. handcuffed her hands behind her back. Whereas a form of constraint applied by police officers may be justified where individuals are offering physical resistance, or where they present a risk of violent behaviour (see Y v. Latvia, no. 61183/08, § 54, 21 October 2014, and Bērziņš v. Latvia, no. 25147/07, § 90, 25 February 2014), the Court needs to establish whether the use of handcuffs was necessary and proportionate in the circumstances of the case. In this connection it has already established beyond reasonable doubt (see paragraph 55 above) that the applicant, with her hands cuffed behind her back, was put in the ambulance and made to lie on her back. She remained in that position throughout the transfer from her home in Kriva Palanka to Bardovci hospital in Skopje, which, according to the Government, lasted about an hour (see paragraph 38 above). During the transfer, M.N. and I.A. held the applicant down (see paragraphs 39 above) to prevent her from standing up (see paragraph 27 above). The applicant asserted, and maintained this consistently before the domestic authorities (see paragraphs 11, 18, 22 and 28 above) and the Court, that during the transfer I.A. sat on her legs.

61. At this juncture, the Court considers it appropriate to observe that it has emphasised that individuals in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being (see Tarariyeva v. Russia, no. 4353/03, § 73, ECHR 2006-... (extracts); Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005; Trubnikov v. Russia, no. 49790/99, § 68, 5 July 2005; and Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX). The same applies to the applicant, who, during the transfer by ambulance, was in the hands of the police, and accordingly under their control. Furthermore, the Court attaches considerable importance to the applicant’s state of health at the relevant time. Although she had no history of mental disorders (see paragraph 34 above), she could be deemed to be vulnerable because of her particular medical needs in view of her psychological state (see, mutatis mutandis, Rivière v. France, no. 33834/03, § 63, 11 July 2006; Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001-III; and Aerts v. Belgium, 30 July 1998, § 66, Reports 1998-V). Furthermore, the Court notes the discomfort the applicant was experiencing as a result of her recent cancer surgery and subsequent chemotherapy, as well as her physical weakness (see paragraphs 9 and 40 above).

62. Assuming that the handcuffing was aimed at preventing self-harm (see paragraph 39 above), the Court considers that, given the context of the treatment to which the applicant was subjected and her state of health, it has not been shown that the use of handcuffs throughout the transfer was proportionate. It observes that no consideration was given to this issue in the domestic proceedings. Likewise, the Government did not argue before the Court that no other, less stringent measures and precautions were available to diminish the opportunities for self-harm without infringing the applicant’s personal autonomy. The Court notes that two police officers were sitting next to the applicant throughout the transfer to Bardovci hospital. Furthermore, it is unclear whether any medicine was administered to the applicant. In this respect the Court notes that the police officers and the applicant provided conflicting evidence as to whether a tranquilliser had been administered to the applicant before she was transferred to Bardovci hospital (see paragraphs 22 and 27 above). The domestic courts failed to establish this issue of fact (see paragraph 30 above). Lastly, the Court notes that neither the applicant’s husband nor any other relative accompanied the applicant during her transfer by ambulance.

63. It therefore considers that in the particular context of the case the Court cannot discern any ground for accepting that it was proportionate for the applicant to be handcuffed, as she described, throughout the transfer to Skopje hospital. The aforementioned leads the Court to conclude that the applicant’s handcuffing during her transfer to Skopje hospital amounted to a degrading treatment contrary to Article 3 of the Convention. There has accordingly been a violation of this Article.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

64. 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

65. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage for the physical pain and emotional suffering in relation to the alleged violation.

66. The Government contested the applicant’s claim as unsubstantiated.

67. Having regard to its finding under Article 3 of the Convention the Court considers that it is reasonable to award the full sum claimed by applicant under this head, plus any tax that may be charged.

B. Costs and expenses

68. The applicant also claimed EUR 500 for travel costs related to her transfer from Kriva Palanka to Skopje, as well as for obtaining medical evidence (medical certificates). She did not provide any supporting documents in this respect. Lastly, she claimed EUR 300 for her legal representation before the Court.

69. The Government contested these claims as unsubstantiated and excessive.

70. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as this relates to the violations found and it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004-IV). In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings, and considers it reasonable to award the full sum claimed in relation to the proceedings before the Court, plus any tax that may be chargeable to the applicant.

C. Default interest

71. 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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s handcuffing during her transfer from Kriva Palanka to Bardovci hospital in Skopje;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 300 (three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> ILIEVSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA - 20136/11 - Chamber Judgment [2015] ECHR 469 (07 May 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/469.html Cite as: [2015] ECHR 469