Ilgiz Khalikov c. Russie (European Court of Human Rights)

Information Note on the Court’s case-law 225

January 2019
Gjini v. Serbia – 1128/16

Judgment 15.1.2019 [Section III]

Article 3

Effective investigation

Positive obligations

Authorities not relieved from duty to investigate inter-prisoner violence despite absence of criminal complaint: violation

Facts – The applicant had been arrested on suspicion of attempting to pay a toll at a border crossing with a counterfeit ten-euro banknote. He was detained in Sremska Mitrovica Prison pending investigation. The note was later acknowledged to be genuine and the proceedings against him were discontinued.

The applicant complained that while he was in detention he had been ill-treated by his cellmates, who had threatened to stage his suicide if he told anyone what was happening. Several days after the start of his detention, the applicant’s lawyer noticed changes in his behaviour and urged the prison authorities to move him to another cell. The applicant was moved and the ill-treatment stopped. In the subsequent civil proceedings lodged by the applicant following his release from prison, it was established that he had suffered post-traumatic stress during and after his detention and he was awarded compensation.

Law – Article 3

(a)  Obligation of the State to prevent ill-treatment or to mitigate its harm – The absence of any direct State involvement in acts of violence that met the condition of severity such as to engage Article 3 did not absolve the State from its obligations under that provision. The State was obliged to at least provide effective protection of persons within its jurisdiction, including reasonable steps to prevent ill-treatment of which State authorities had or ought to have had knowledge.

Taking into account the findings in the domestic civil proceedings, the Court accepted as established that the applicant had suffered ill-treatment at the hands of his cellmates. In the Government’s view, as no official complaint had been lodged by the applicant, the prison authorities could not have been expected to have protected him. However, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) had reported inter-prisoner violence in the prison in question and had repeatedly pointed that out as a serious problem, both before and after the events in the applicant’s case. It had noted a high number of cases concerning inter-prisoner violence and had observed that no action whatsoever had been taken by the prison or State authorities to correct such behaviour or reduce it.

The prison staff must have noticed the applicant’s ill-treatment and had failed to react to any of the signs of violence; they had further failed to secure a safe environment for the applicant and to detect, prevent or monitor the violence he had been subjected to.

Conclusion: violation (unanimously).

(b)  Failure to investigate – It was uncontested that no investigation had ever been conducted into the applicant’s allegations concerning his ill-treatment by his cellmates in prison. It was, thus, impossible for the Court to establish whether the investigation into applicant’s allegations had been effective. The question was whether the applicant’s failure to lodge a formal criminal complaint had either prevented the State authorities from carrying out an investigation or had relieved them of their general duty to do so.

The authorities knew or ought to have known about the applicant’s ill-treatment. There had been no formal or factual element which had stood in the way of an investigation. There was nothing in the domestic law to have prevented the prison or other authorities from reacting or initiating a criminal investigation. On the contrary, the Serbian legal framework was explicit in imposing an obligation on all public authorities to report criminal offences subject to public prosecution of which they had been informed.

The absence of a criminal complaint by the applicant had not prevented the public prosecutor from initiating criminal proceedings or precluded other domestic authorities from informing the public prosecutor about the allegations of ill-treatment.

Conclusion: violation (unanimously).

Article 41: EUR 25,000 in respect of non-pecuniary damage.

(See also Gäfgen v. Germany [GC], 22978/05, 1 June 2010, Information Note 131; and Premininy v. Russia, 44973/04, 10 February 2011, Information Note 138. See also the CPT’s reports on its visits to Serbia, and in particular document CPT/Inf (2006) 18)

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