In the case of Mitić v. Serbia,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Peer Lorenzen,
Dragoljub Popović,
András Sajó,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
31963/08) against the Republic of Serbia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Serbian national, Mr Najdan Mitić (“the
applicant”), on 20 June 2008.
The applicant was represented by Mr M. Cvetanović, a lawyer practising in Leskovac. The Serbian
Government (“the Government”) were represented by their Agent, Mr S. Carić.
The applicant, relying on Article 2 of the
Convention, alleged that the authorities had failed to protect the life of his
son who committed suicide while in solitary confinement. He further complained
that the investigation into his son’s death was not adequate and effective under
that Article.
On 6 December 2010 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1950 and lives in Manojlovce.
He is the father of Jovica Mitić ("JM") who, on 8 October 2007, at
the age of 28, hanged himself whilst serving a cumulative prison sentence of
one year and nine months at Leskovac District Prison ("the District
Prison").
On 14 August 2007 JM was arrested by the Leskovac
Police Department on suspicion of larceny. The same day the investigating judge
of the Leskovac District Court ("the District Court") decided to open
an investigation against him on the larceny charge and to detain him for a
period of one month.
On 15 August 2007, after having been placed in a
detention unit of the District Prison, JM was examined by DP, the prison doctor,
and a detention medical file was opened at the prison infirmary. During the examination,
JM said that he had been involved in four traffic accidents in the past two
months in which he had injured sixth cervical vertebra. He denied any other
recent injury, surgery or illness. During his detention, JM visited the prison
doctor three times complaining of trouble sleeping (17, 22 and 24 August 2007).
He was prescribed 10 mg of diazepam and 15 mg of flormidal once a day.
On 21 August 2007 the Police Department informed
the prison authorities that various District Courts had previously issued
several arrest warrants for JM in connection with prison sentences imposed on
him earlier by three final judgments (six months ordered on 19 November 2003 for
larceny and forgery; three months ordered on 16 May 2005 for enabling substance
abuse; and one year ordered on 7 November 2005 for forgery). The prison
authorities were thus requested to transfer JM from a detention unit to a prison
unit to serve a cumulative prison sentence of one year and nine months. They
were also warned that, being a recidivist and a fugitive, he should be placed
in the high-security prison unit.
On 27 August 2007 JM was placed in the
high-security prison unit. On 28 August 2007 he was examined by the prison
doctor and by TI, the prison psychologist, as a part of the standard procedure.
During the examination JM denied any family history of mental illness and said
that prior to imprisonment he had used sedatives for his sleeping problems. In
her record of the examination, the prison psychologist described him as introverted,
dishonest and dissimulative.
JM was examined again on 4 September
2007 for what appears to be muscle pain (the medical file submitted by the Government
is partly illegible). On 21 September 2007 he complained of a "twinge"
and the prison doctor discovered bruises on his left shoulder, shoulder blades
and right upper arm. The doctor considered the bruises to be three days old. JM
refused to say how he got these bruises and it would appear that he refused to
file a formal complaint with the prison authorities. The doctor observed that
he appeared nervous. She prescribed ibuprofen and 10 mg of diazepam twice a
day.
On 25 September 2007 JM failed
to show up for a scheduled medical check-up. On 2 October 2007 JM visited the
prison doctor concerning a dermato-venereal condition and an appointment was
made for him with a specialist outside the prison. Two days later he complained
of insomnia and minor anxiety. He refused to see the prison psychologist and the
prison doctor increased the daily dose of diazepam to 10 mg three times per day
and again prescribed 15 mg of flormidal once a day.
On 3 October 2007 JM attempted
to escape together with three other inmates. On 5 October 2007 disciplinary
proceedings were initiated against each of them and a disciplinary measure of
placement in solitary confinement for a period of 15 days was imposed on each.
Before being placed in solitary
confinement, JM was examined by the prison doctor, who established that he was
fit to undergo solitary confinement with the continuation of previously
prescribed daily therapy (paragraph 11 above). During his stay in solitary
confinement JM was visited by the prison doctor once a day and was receiving
his therapy administered by a member of the prison medical staff. He did not
complain of any health problem. The cell in which he was placed was equipped
with CCTV which covered the entrance door of the cell and part of the toilet
door. It did not make video recordings but only projected images to a screen
located in the office of the head of the prison guards.
On 7 October 2007 the applicant came to visit
his son but was informed that the visit was not allowed because JM had been
placed in solitary confinement following disciplinary proceedings against him (paragraph
31 below). He was allowed to leave a package which was given to JM the same
day.
Early in the morning of 8
October 2007 JM was served with breakfast. At approximately 8.15 a.m. he was
visited by the prison doctor and a member of the prison staff. Between 8.45 a.m
and 9.00 a.m. a member of the prison medical staff gave him his daily treatment.
He later recalled that JM’s demeanour was calm and responsive.
At around 12 noon the same day JM
was discovered by a prison guard and a correctional officer hanging from the
heating pipe in his cell by a ligature fashioned out of a bed sheet. At 12.05 p.m.
he was pronounced dead.
At 12.20 p.m. on the same day the
investigating judge of the District Court conducted an on-site investigation during
which the cell was secured by two police officers. The deputy public prosecutor
was also present. Photographs were taken of the cell and of JM’s body. The
on-site investigation was closed at 2.00 p.m. The investigating judge made a
record of the investigation, including a description of JM’s cell and the items
found therein, as well as of the reconstruction of the events of that morning
based on an interview with the prison warden. The written statements of the
prison staff who had contact with JM, given to the prison warden, were also included
in the file. JM’s family was informed of his death the same day.
The same day the police questioned
the prison guard and the correctional officer who had discovered JM’s body. The
prison guard said that he had arrived at work at 7.45 a.m. and had visited all
the cells, including that of JM. Everything appeared normal. He further said
that he had seen JM alive in his cell at 10.50 a.m. The correctional officer
said that he had last seen JM on 4 October 2007. His impression was that, while
JM was an introverted person, there was nothing peculiar in his demeanour.
The police also interviewed the prison doctor, the
member of the prison medical staff who was giving treatment to JM and two other
members of the prison staff who had had contact with him. They maintained that JM
had never disclosed any suicidal tendencies and that he had seemed relaxed the last
time they had seen him. The official record of all the interviews was made.
At 10.00 p.m. that day Dr RK performed
an autopsy on JM’s body, at the request of the investigating judge. The doctor noted
that he had been informed by the investigating authorities that JM’s body was
discovered at around 10.00 a.m. He went on to describe the external appearance of
the body and noted that the ligature had left a twenty-five by thirty
millimetres wide trace on the front of JM’s neck and a thirty by forty
millimetres wide trace on the back and sides of his neck. He further observed an
oblong purple bruise on JM’s neck; it did not disappear when pressed. The
doctor further noted an old bruise, which measured twenty by fifteen
millimetres on JM’s right upper arm. He concluded, based on its colour and appearance,
that it was an old injury. The internal examination did not show, in his
opinion, any anomalies. The histopathological examination of JM’s internal
organs had shown severe blood stasis, particularly in the lungs and kidneys.
The microscopic examination of his neck subcutaneous soft tissues revealed
fresh bleeding. The toxicology screening revealed no traces of poison; some traces
of alcohol were discovered. The autopsy report concluded that JM’s death had occurred
between 9.00 a.m. and 10.00 a.m. as a result of asphyxia caused by hanging. The
report included photographs.
Before the autopsy report was received by the
court and the applicant, on 9 October 2007 the applicant requested a second
autopsy. He was informed the same day by the investigating judge that a second autopsy
could not be ordered before the report of the first had been received. JM’s
body was given to his family the same day.
On 9 October 2007 one of the inmates who was
also in solitary confinement as a result of the escape attempt (paragraph 12 above)
informed the prison doctor and the correctional officer, in two separate visits
of which official records were made, that during a daily walk in the prison
yard, JM had told him that he planned to stage a suicide attempt in order to be
transferred to the Special Prison Hospital in Belgrade. The inmate expressed
his regret for failing to inform the prison authorities of JM’s intentions.
The same day, the applicant lodged a criminal
complaint against the prison warden and unspecified prison officers for the alleged
murder of his son and abuse of authority. The applicant argued, in particular,
that his son had been unjustly and arbitrarily punished for the alleged escape
attempt as he was the only one who had been punished with solitary confinement
which had caused psychological suffering and his eventual suicide. On the same
day, the public prosecutor requested a report of the events of
8 October 2007 from the prison authorities and that police officers question all
persons indicated in the applicant’s complaint, in particular about JM’s
treatment in prison and why he had been placed in solitary confinement.
At the request of the public prosecutor, the
police again questioned the prison guard and the correctional officer who had discovered
JM’s body, the prison doctor, the member of the medical staff who had administered
treatment to JM and two other prison officers who had had direct contact with
him. They all reiterated their earlier statements that, in particular, there had
been nothing peculiar in JM’s behaviour that would have indicated that he was
suicidal.
On 16 October 2007 the police report was sent to
the prosecutor’s office. It also contained a written statement of the prison warden
dated
15 October 2007, the record of visits JM had received and decisions concerning
disciplinary proceedings against three other inmates who had participated in
the escape attempt (paragraph 12 above). The prison warden submitted that JM’s treatment
was in compliance with the prison rules. JM had visiting rights (he had received
eight visits from his family and three from his lawyer) and had received
adequate medical treatment. On
19 December 2007 the public prosecutor decided not to prosecute.
On 28 December 2007 the applicant filed an
indictment with the District Court against the prison, the prison doctor and
nine other prison officers for alleged murder, having taken over the
prosecution of the case as a “subsidiary prosecutor” (paragraph 30 below). He
maintained his allegations in his criminal complaint, adding that the prison
doctor had made a wrong assessment in deciding that his son was fit for
placement in solitary confinement. On 4 January 2008 the investigating judge of
the District Court requested the prison authorities to submit a report on JM’s treatment
in the prison (in particular, as regards his visiting rights, his medical
treatment and any disciplinary proceedings against him). The investigating
judge also requested a file from the public prosecutor’s office.
On 11 January 2008 the prison authorities sent
the requested report to the investigating judge. It contained, in particular, the
statement of the prison doctor dated 9 January 2008: she gave an account of JM’s
medical treatment in prison and stated that, while he had not requested medical
assistance while in solitary confinement, she had visited him once per day in
accordance with prison regulations.
On 14 January 2008, after examining all the
documents, the investigating judge expressed the opinion that there were not
enough elements for an indictment and that the investigation should be discontinued.
On 23 January 2008 a chamber of three judges of
the District Court accepted that conclusion and decided not to prosecute. That
decision was upheld by the Supreme Court of Serbia on 12 March 2008.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL
PRACTICE
Code of Criminal Procedure 2001
(Zakonik o krivičnom postupku, published in the Official Gazette of
the Federal Republic of Yugoslavia nos. 70/01 and 68/02, as well as in the
Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 46/06,
49/07, 122/08, 20/09, 72/09 and 76/10) entered into force on 28 March 2002.
Articles 19 and 20 of this Code 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
officio, including murder, the authorised prosecutor is the public
prosecutor personally. The latter’s authority to decide whether to press
charges, however, is bound by the principle of legality which requires that he
must act whenever there is a reasonable suspicion that a crime subject to
prosecution ex officio has been committed. Article 61 of this Code
provides that should the public prosecutor decide that there is no basis to
prosecute, he must inform the victim of this decision, who shall then have the
right to take over the prosecution of the case on his own behalf, in the
capacity of a “subsidiary prosecutor”.
Section 81(3) of the Execution
of Penal Sanctions Act 2005 (Zakon o izvršenju
krivičnih sankcija, published in the
Official Gazette of the
Republic of Serbia no. 85/05) provides that visits are not allowed during
placement in solitary confinement. An escape or attempt to escape is qualified
as a heavy disciplinary offence (section 145) for which placement in solitary
confinement can be ordered (section 146(2)). A prisoner must
undergo a medical examination before being placed in solitary confinement
(section 151(2) of this Act) and during solitary confinement he
must be examined by a prison doctor at least once a day (section 153 of this
Act).
. The
European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment provides non-judicial preventive machinery to protect
persons deprived of their liberty. It is based on a system of visits by the
European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (“the CPT”). During its years of activity in the field,
the CPT has developed standards relating to the treatment of persons deprived
of their liberty. The following are its standards concerning the material
conditions in solitary confinement (see the CPT standards, document no. CPT/Inf/E
(2002) 1 - Rev. 2011, p. 35):
“The cells used for solitary confinement should meet the same
minimum standards as those applicable to other prisoner accommodation. Thus,
they should be of an adequate size, enjoy access to natural light and be
equipped with artificial lighting (in both cases sufficient to read by), and
have adequate heating and ventilation. They should also be equipped with a
means of communication with prison staff. Proper arrangements should be made
for the prisoners to meet the needs of nature in a decent fashion at all times
and to shower at least as often as prisoners in normal regime. Prisoners held
in solitary confinement should be allowed to wear normal prison clothing and
the food provided to them should be the normal prison diet, including special
diets when required. As for the exercise area used by such prisoners, it should
be sufficiently large to enable them genuinely to exert themselves and should
have some means of protection from the elements.
All too often, CPT delegations find that one or more of these
basic requirements are not met, in particular in respect of prisoners undergoing
solitary confinement as a disciplinary sanction. For example, the cells
designed for this type of solitary confinement are sometimes located in
basement areas, with inadequate access to natural light and ventilation and
prone to dampness. And it is not unusual for the cells to be too small,
sometimes measuring as little as 3 to 4m˛; in this connection, the CPT wishes
to stress that any cell measuring less than 6m˛ should be withdrawn from
service as prisoner accommodation. The exercise areas used by the prisoners
concerned are also frequently inadequate.
It is common practice for cells accommodating prisoners
undergoing solitary confinement as a punishment to have a limited amount of
furniture, which is often secured to the floor. Nevertheless, such cells should
be equipped, as a minimum, with a table, adequate seating for the daytime (i.e.
a chair or bench), and a proper bed and bedding at night.
As regards the cells used to accommodate prisoners undergoing
other types of solitary confinement, the CPT considers that they should be
furnished in the same manner as cells used by prisoners on normal location.”
As regards suicide prevention, the CPT standards (cited above,
p. 44) provide as following:
“A person identified as a suicide risk should, for as long as
necessary, be kept under a special observation scheme. Further, such persons
should not have easy access to means of killing themselves (cell window bars,
broken glass, belts or ties, etc.).”
In the Report on the visit to Austria carried out from 14 to 23
April 2004 (see document no. CPT/Inf (2005) 13, §§ 53 and 55) the CPT made the
following comments in relation to placement of suicide-risk prisoners in a segregation
unit:
“At the PAZ in Vienna-Hernalser Gürtel,
there was a segregation unit with 24 single cells, including two security cells
and one padded cell; conditions in these cells call for no particular comment.
The PAZ in Innsbruck had one padded cell in the basement, which had no access
to natural light. At Linz, there was one padded cell and three other cells used
for segregation purposes; all the cells had many ligature points and could not
safely be used for the accommodation of detainees representing a suicide risk
without constant supervision. At the PAZ in Wels, the segregation cells were of
a good standard, with adequate access to natural light and ventilation.
...
Further, the CPT invites the Austrian
authorities to provide suicide-proof clothing for use in appropriate
circumstances.”
In the Report on the visit to Malta carried out from 19 to 26
May 2008 (see document no. CPT/Inf (2011) 5, §§ 135 and 136), the CPT made the
following remarks concerning the treatment of suicide-risk prisoners:
“A “suicide watch” cell has been installed at the entrance of the
YOURS building. The cell with very high bare walls and a transparent ceiling,
is equipped only with a mattress. Inmates can be placed there after having
attempted to commit suicide or after displaying (auto)-aggressive behaviour;
they are subject to reinforced staff monitoring (in emergency circumstances, in
“one to one” constant direct supervision). A recording clock is also installed,
to check staff presence. Placement in the cell is under the sole responsibility
of the CCF psychiatrist, who informed the delegation that inmates were usually
placed there for an observation period of two weeks, but that they could be
discharged earlier on his decision. A special register was kept, recording the
stay in the cell. The delegation was informed that on occasion prisoners had
been kept in their underwear or, exceptionally, left naked in the cell (with a
Luna blanket).
The delegation was of the opinion that the practice of keeping
a prisoner naked in a cell can be considered to amount to degrading treatment
and, in pursuance of Article 8, paragraph 5, of the Convention, requested the
Maltese authorities to discontinue this practice immediately, indicating that
prisoners at risk of suicide should instead benefit from clothing appropriate
to their specific needs.”
Furthermore, in the Report on the visit to Italy carried out from 14 to
26 September 2008 (see document no. CPT/Inf (2010) 12, §§ 107 and 108),
concerning the psychiatric care, the CPT made the following observations:
“Further, in particular at Brescia and Cagliari Prisons the
delegation observed serious problems in the handling of prisoners with severe
psychiatric disorders or acute episodes of agitation. Delays often arose when
arranging transfers to psychiatric establishments (such as an OPG or a
psychiatric service in a general hospital - SPDC). This led to very disturbed
prisoners being placed in bare cells, sometimes for prolonged periods (as was
observed at Cagliari); in some cases, the prisoners concerned were held in such
cells while handcuffed (as was the case at Brescia) or stripped of their
clothes (as was the case at Cagliari). Thus, acutely ill prisoners with
psychiatric disorders did not receive adequate care and were subjected to
treatment which can easily be considered as inhuman and degrading. It is all
the more worrying that some of the prisoners concerned had allegedly been
subjected to physical ill-treatment by staff.
...
In the light of the above, the CPT recommends that urgent steps
be taken to review the provision of psychiatric care in the establishments
visited. In particular, steps should be taken to:
- increase the presence of psychiatrists and ensure that
prisoners suffering from severe disturbances are transferred without delay to
an appropriate psychiatric establishment (if necessary a civil psychiatric
institution);
- provide suicide-proof clothing for use in appropriate
circumstances;
- ensure that patients are not handcuffed inside a cell.”
In the Report on the visit to Ireland carried out from 25
January to 5 February 2010 (see document no. CPT/Inf (2011) 3, §§ 79-82),
concerning the use of special observation cells, the CPT made the following
observations (footnotes omitted):
“According to Rule 64 of the Prison Rules 2007, a prisoner
shall be accommodated in a special observation cell only if “it is necessary to
prevent the prisoner from causing imminent injury to himself or herself, or
others and all other less restrictive methods of control have been or would, in
the opinion of the Governor, be inadequate in the circumstances”. Placement in such a cell should not exceed 24
hours unless the Governor receives authorisation from the Director General of
Prisons to extend the placement for a maximum of four further periods of 24
hours.
Paragraph 8 of Rule 64 states that the Governor may require a
prisoner’s clothing to be removed prior to placement if it is considered that
“items or parts of prisoner’s clothing may be used by the prisoner to harm
himself or herself, or others, or to cause significant damage to property”.
However, paragraph 9 states that no prisoner should be left unclothed. Also, a
prisoner placed in a special observation cell should be visited at least daily
by the Governor and by the doctor.
...
In the course of the 2010 visit, the CPT’s delegation was
deeply concerned by the situation of prisoners placed in special observation
cells, which resulted in it making an immediate observation (see paragraph 6
above). To begin with, prisoners who had been placed in a special observation
cell complained of the cold temperature and
the delegation observed for itself the cells were generally cold (for example,
the special observation cell in B Wing of Midlands Prison measured 12oC
at the time of the visit). It should be noted that in most instances an inmate’s
clothes were removed and that only one, maybe two, small blankets were issued;
at times, an inmate was permitted to keep his underwear.
Prison Rule 64 is designed to enable
management to remove a prisoner in an emergency to a cell where he or she will
be safe and can be closely observed by staff. However, in the prisons visited,
inmates were being placed in special observation cells not only in such
situations but also for accommodation, disciplinary and good order purposes;
further, regardless of the reason for the placement, prisoners were in most
cases being subjected to the same procedures.
In a number of instances documented by the CPT’s delegation,
prisoners judged to have disobeyed a legitimate order or who were being
refractory, were transferred to a special observation cell, sometimes using
control and restraint measures. On each occasion the prisoner’s clothing was
removed; in many instances, it was apparently either ripped off or cut off,
while the inmate was restrained lying prostrate on the floor of the cell. Other
than being provided with a rip-proof blanket or poncho, these prisoners were in
each instance kept naked (apart from prison-issue
underpants) in the special observation cell for 24 hours or longer, they were
not offered outdoor exercise or provided with any reading material or permitted
to watch television. Such placement could not be described as other than for
the purpose of punishment.
...
If a prisoner is placed in a special observation cell for
medical reasons, rip-proof clothing should only be provided where necessary
(e.g. in cases of self-harm but not for someone who initiates a hunger-strike).
Such a placement and its continuation should only be made upon the authorisation
of the medical doctor, when all other measures are inadequate; and the removal
of clothes should follow an individual risk assessment, and be authorised by
the doctor. Further, the doctor should attend prisoners placed in observation
on a daily basis as required by the Prison Rules 2007 (see also section e.
below) and record his findings; this was often not the case in most of the prisons
visited, notably at Cork Prison. Likewise, the standard 15 minute observation
by prison officers of persons placed in a special observation cell should be
clearly recorded in the register.
Where there is a need for a disruptive or violent prisoner to
be rapidly transferred to a special observation cell, the person concerned
should only be kept in such a cell until such time as he has calmed down,
whereupon he should be placed in an ordinary cell and, if appropriate, managed through
the disciplinary process or Rule 62 governing removal from association.
Further, the prisoner’s clothing should not be removed unless this is found to
be justified following an individual risk assessment.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The first sentence of Article 2 of the
Convention provides:
“1. Everyone’s right to life shall be protected by
law.”
The applicant complained under Article 2 that the
authorities were responsible for his son’s death and/or that they failed to
protect his life. He also complained that the investigation into his son’s
death had not been adequate or effective, as required by the procedural obligation
imposed by that Article.
A. Submissions of the parties
1. The applicant
The applicant alleged, without more, that his
son was killed by the prison authorities. He also alleged that, if his son had
indeed committed suicide, it was the fault of the prison authorities who had
failed to protect him: his son had been beaten by other inmates; he should not
have been placed in solitary confinement and the disciplinary proceedings against
him were a set-up manufactured by the prison authorities. He also claimed his
son’s medication was too strong.
The applicant further argued that the
circumstances of his son’s death were neither properly investigated nor established.
There were discrepancies between the report of the investigating judge and the
autopsy report (as to the time JM’s body was discovered) and between the prison
guard’s statement and the time of death established by the autopsy (paragraphs 16,
18 and 20 above). He also claimed that the prison authorities had refused to
give him the CCTV tape recordings of his son’s cell.
2. The Government
The Government argued that the authoritites could
not have been aware that JM was a suicide risk. He had no history of mental
health problems or of suicidal tendencies. Upon his arrest, he was examined by the
prison doctor and was thereafter under constant medical care by the same
doctor. JM had never shown any sign of mental distress that could be
interpreted as alarming. The applicant had not indicated in his submissions
that his son had suffered from mental illness and none of his relatives, who
visited him in prison, including the applicant, had alerted the authorities to
any unusual or worrying behaviour. Furthermore, solitary confinement could not
have adversely affected his mental state because he was not in total isolation:
he had contacts with the prison staff, was visited regularly by the prison
doctor and had one-hour daily exercise together with other inmates who were
also placed in solitary confinement. He also had contact with the outside world
through letters.
The Government further maintained that JM had
never complained about his treatment in prison. The applicant’s claim that his
son was the only one placed in solitary confinement after the disciplinary
proceedings was untrue: all inmates who attempted to escape were punished in
the same manner. Copies of the relevant decisions were submitted.
The Government submitted that the investigation
into JM’s death met the Convention requirement of effectiveness. The decision
to discontinue the proceedings had been based on an objective, impartial and
comprehensive analysis of all the evidence. As regards the discrepancy between
the prison guard’s statement and the time of death established in the autopsy
report (paragraphs 18 and 20 above), the Government submitted that it did not
undermine the findings of the autopsy because the forensic expert’s task was
not to establish the precise minute of JM’s death (that was not the focus of
the investigation) but rather to determine the cause of his death. Furthermore,
the inconsistency could simply have been the result of a mistake.
The Government also submitted that the investigation
fulfilled the condition of public scrutiny: the applicant was in constant contact
with the investigators; he had been informed in a timely manner about his son’s
death; he had full access to documents in the file; and he was informed of the
public prosecutor’s decision not to initiate criminal proceedings as well as of
the courts’ decisions.
B. The Court’s assessment
1. Admissibility
The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) The substantive protection
i. The cause of death: the alleged involvement of State
agents in JM’s death
The Court reiterates that Article 2, which
safeguards the right to life and sets out the circumstances when deprivation of
life may be justified, ranks as one of the most fundamental provisions in the
Convention, from which no derogation is permitted. In the light of the
importance of the protection afforded by Article 2, the Court must subject
deprivation of life to the most careful scrutiny, taking into consideration not
only the actions
of State agents but also all the surrounding circumstances (see, among
other authorities, McCann
and Others v. the United Kingdom,
27 September 1995, §§ 146-47, Series A no. 324).
The
applicant alleged that his son was killed by the prison authorities but did not
develop this argument at all. The Court observes that voluminous investigation
documents were unanimous as to the cause of JM’s death. The applicant merely
reiterated his allegations from the criminal complaint. However, this remains a
vague and undeveloped submission, in respect of which the case-file, including
the domestic investigation, reveals no sufficient elements. The Court will thus
proceed on the basis of a suicide.
In such circumstances, the Court finds that the
applicant has not substantiated any violation of the substantive limb of
Article 2 of the Convention.
ii. Failure of the State to protect JM’s life
The Court reiterates that the first sentence of
Article 2 § 1 enjoins the State not only to refrain from the intentional and
unlawful taking of life, but also to take appropriate steps to safeguard the
lives of those within its jurisdiction (see L.C.B. v. the United Kingdom,
judgment of 9 June 1998, § 36, Reports 1998-III). In the context of
prisoners, the Court has had previous occasion to emphasise that persons in
custody are in a vulnerable position and that the authorities are under a duty
to protect them. It is incumbent on the State to account for any injuries
suffered in custody, which obligation is particularly stringent when an
individual dies (see, for example, Salman v. Turkey [GC],
no. 21986/93, § 99, ECHR 2000-VII).
Bearing in mind the difficulties in policing modern societies, the
unpredictability of human conduct and the operational choices which must be
made in terms of priorities and resources, the scope of the positive obligation
must be interpreted in a way which does not impose an impossible or
disproportionate burden on the authorities. Accordingly, not every claimed risk
to life can entail for the authorities a Convention requirement to take
operational measures to prevent that risk from materialising. For a positive
obligation to arise regarding a prisoner with suicidal tendencies, it must be
established that the authorities knew, or ought to have known at the time, of
the existence of a real and immediate risk to the life of an identified
individual and, if so, that they failed to take measures within the scope of
their powers which, judged reasonably, might have been expected to avoid that
risk (see Keenan v. the United Kingdom, no. 27229/95, §§ 89 and 92, ECHR
2001-III).
The Court has recognised that the prison authorities must discharge their
duties in a manner compatible with the rights and freedoms of the individual
prisoner concerned. There are general measures and precautions which ought to
be available to diminish the opportunities for self-harm, without infringing
personal autonomy. Whether any more stringent measures are necessary in respect
of a prisoner and whether it is reasonable to apply them will depend on the
circumstances of the case (see Keenan, cited above, § 91).
In the light of the above, the Court will examine
whether the authorities knew or ought to have known that JM posed a real and
immediate risk of suicide and, if so, whether they did all that could
reasonably have been expected of them to prevent that risk.
The Court notes that JM did not have any known
history of mental health problems or suicidal tendencies (compare Keenan,
cited above,
§§ 94 and 95). All the time during imprisonment he acted in a normal fashion,
showing no particular signs of physical or mental distress. He had constant
access to medical assistance, was always examined by the same prison doctor and
had contact with other prison officers and inmates, none of whom ever reported
anything unusual in his behaviour. JM’s medical record shows that he complained
of insomnia and mild anxiety for which he was treated. On the morning of the day
he killed himself, he was seen by the prison doctor and two other prison
officers (paragraph 15 above). According to their statements given during the
investigation, there was nothing strange in his demeanour. Neither did JM’s
relatives ever alert the prison authorities to any risk of suicide. For these
reasons, the Court does not find that the authorities could have reasonably
foreseen JM’s decision to hang himself.
The Court recalls at this point that the CPT has recommended
that persons identified as a suicide risk should be subject to special
precautions. In particular, they should not be placed alone in a cell with easy
access to means of killing themselves, such as, cell window bars, broken glass,
belts or ties (see the CPT Standards, cited above). Furthermore, suicide-proof
clothing should be used in appropriate circumstances, such as in the case of
mentally-ill prisoners and prisoners who were placed in suicide watch cells
after having attempted to commit suicide or after displaying auto-aggressive
behaviour (see the Reports in the “Relevant domestic law and international
practice” above). However, it is clear from the circumstances of the present
case that JM’s mental state during imprisonment had never called for such
special protective measures.
As regards the applicant’s complaint that the
authorities failed to protect his son from being beaten by other inmates, the
Court notes that JM’s medical file indicates that, during the examination on 21
September 2007, the prison doctor discovered three-day old bruises on his left
shoulder, shoulder blades and right upper arm (paragraph 10 above). However, JM
refused to reveal the origin of the bruises or to submit a formal complaint to
the prison authorities. In these circumstances, the Court finds it unreasonable
to consider that prison authorities failed to take necessary measures to
protect the applicant’s son.
Furthermore, as regards the applicant’s claim
that his son’s medical treatment was inadequate, the Court notes that JM was
prescribed sedatives for insomnia and mild anxiety. He never raised any serious
mental health issue which could be considered to have required special
psychiatric examination. Furthermore, he never complained about the quality of
the medical assistance or the therapy received nor was he refused access to a
specialist (compare Younger v. the United Kingdom (dec.), no. 57420/00, ECHR
2003-I). The Court finds no evidence that JM’s medical treatment was inadequate.
Lastly, as regards the applicant’s claim that his son
was unjustly placed in solitary confinement following arbitrary disciplinary
proceedings, the Court notes that other inmates involved in the escape attempt
were punished in the same way (paragraph 12 above) and that the ordered disciplinary
measure was prescribed by domestic law (paragraph 31 above).
Having regard to the above, the Court does not find any
manifest omission on the part of the domestic authorities allowing a finding
that the Serbian authorities failed to prevent a real and immediate risk of
suicide or that they otherwise acted in a way incompatible with their positive
obligations to guarantee the right to life.
Accordingly, there has been no
violation of Article 2 of the Convention in this respect.
(b) The procedural protection: the investigation into
JM’s death
The Court reiterates that
whenever a detainee dies in suspicious circumstances, Article 2 requires the
authorities to conduct an independent and impartial official investigation that
satisfies certain minimum standards as to effectiveness (see, for example, Paul
and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69-73, ECHR 2002-II,
and Trubnikov v. Russia, no. 49790/99, § 88, 5 July 2005). Thereby,
the competent authorities must act with exemplary diligence and promptness and
must of their own motion initiate investigations which would be capable of,
firstly, ascertaining the circumstances in which the incident took place and
any shortcomings in the operation of the regulatory system and, secondly,
identifying the State officials or authorities involved. The nature and degree
of scrutiny which satisfy the minimum threshold of effectiveness depend on the
circumstances of each particular case. They must be assessed on the basis of
all relevant facts and with regard to the practical realities of investigation
work (see Koseva v. Bulgaria (dec.), no. 6414/02, 22 June 2010).
Furthemore, the obligation to investigate is not one of result, but of means
only.
The requirement of public
scrutiny is also relevant in this context. The degree of public scrutiny
required may well vary from case to case. In all cases, however, the
next-of-kin of the victim must be involved in the procedure to the extent
necessary to safeguard his or her legitimate interest (see, for example, McKerr
v. the United Kingdom, no. 28883/95 , § 148, ECHR 2001-III).
The Court finds that a procedural obligation
arose to investigate the circumstances of JM’s death. He was a prisoner under
the care and responsibility of the authorities when he died as a result of what
appeared to be a suicide (paragraph 43 above). The investigation was necessary
to establish, firstly, the cause of death, and, secondly, once suicide was
established, to examine whether the authorities were in any way responsible for
failure to prevent it. That investigation had also to fulfil requirements set
out above (paragraphs 54 and 55 above).
In the present case, the
investigation was carried out by the investigating judge with the assistance of
the police and later on by the public prosecutor. They were not connected to
the prison authorities, either structurally or factually, so that the persons
conducting the investigation were independent from the relevant personnel of
the prison.
As to whether the investigation was prompt and expeditious, the
Court observes that an on-site investigation was conducted immediately after
the incident, including photographs of the scene and of the body. An autopsy
was performed on the day of the death by a forensic expert (contrast Tepe v. Turkey, no. 27244/95, § 181, 9 May
2003). Furthermore, following the applicant’s criminal complaint the case was
again examined by the public prosecutor, by the investigating judge and by the
District Court and the Supreme Court of Serbia, within five months after JM’s
death.
As regards thoroughness, the Court notes that police officers
questioned a number of prison officers, including the prison doctor and the
officers who discovered JM’s body. Furthermore, the autopsy report was
detailed: it described both the internal and external features of JM’s body and
took histopathological samples which were analysed in detail (contrast Tanlı
v. Turkey, no. 26129/95, § 150, ECHR 2001-III (extracts)). It went on
to clearly conclude as to suicide by hanging. It is true that certain facts in the
autopsy report (the time of discovery of JM’s body and the time of death) did
not match the report of the investigating judge and the prison guard’s statement
(paragraphs 16, 18 and 20 above). However, while some effort should have been
made to clarify these inconsistencies, the Court does not find this oversight
sufficient to conclude that the investigation into JM’s death was sufficiently
flawed as to undermine its effectiveness, since the precise time of death was
not of crucial importance in the present case (contrast Velikova v. Bulgaria, no. 41488/98, § 79 in limine, ECHR 2000-VI). Moreover, the
applicant could have but did not challenge the expert’s conclusions after he
had received the autopsy report.
Furthermore, following the
applicant’s criminal complaint, the police again questioned several prison
officers and the prison warden also gave a statement to the public prosecutor. Once
the public prosecutor decided not to prosecute and the applicant took over the
prosecution, the investigating judge requested a new report from the prison
authorities and gathered more evidence. However, having examined all documents,
he considered that there were not enough elements for indictment and that the
investigation should be discontinued. That conclusion was upheld by the
District Court and by the Supreme Court of Serbia. This also shows that the applicant
has been involved in the procedure to the extent necessary to safeguard his
interest as a next-of-kin.
Finally, as regards the applicant’s allegation that the prison
authorities refused to produce the CCTV recordings, the Court notes that such
recordings were never made (paragraph 13 above).
In the light of the above, the Court concludes
that there has been no violation of the procedural obligation of Article 2 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been no violation of
Article 2 of the Convention as regards the authorities’ positive obligation to
protect the right to life;
3. Holds that there has been no violation of
Article 2 of the Convention in respect of the respondent State’s obligation to
conduct an effective investigation.
Done in English, and notified in
writing on 22 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Stanley Naismith Guido
Raimondi
Registrar President
