THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43393/98 
by Aleksander MATKO 
against Slovenia

The European Court of Human Rights (Third Section), sitting on 8 July 2004 as a Chamber composed of:

Mr G. Ress, President
 Mr L. Caflisch
 Mr R. Türmen
 Mr B. Zupančič
 Mrs H.S. Greve
 Mr K. Traja, 
 Mrs A. Gyulumyan, judges,

and  Mr  V. Berger, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 22 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the documents submitted by the respondent Government in response to the Judge Rapporteur’s request of 16 March 2004 and the comments submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Aleksander Matko, is a Slovenian national who was born in 1961 and resides in Slovenj Gradec.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 5 April 1995 at about 20.30 the applicant was forcibly arrested during a police raid in Slovenj Gradec and brought to a police station for having allegedly failed to comply with police orders to stop his vehicle. The applicant was questioned by the police and released at approximately 00.30.

According to the version of events given by the police, the applicant refused to obey their order to stop his vehicle for a routine check. He speeded up, prompting them to chase his car and to force him to stop. When the applicant got out of the car, several officers of the Special Police Unit (specialna enota) confronted him. The applicant attempted to hit one of the officers, who managed to block his blow and forced the applicant to lean against his car. The police ordered the applicant to place his hands on the roof of the car to search him and verify his identity. The applicant did not, however, obey their orders but disengaged himself and escaped, running about 20 metres before the police caught up with him. At that point the applicant attempted to hit one of the officers of the Special Police Unit. The police responded by using their truncheons and gripped his elbow to handcuff the applicant, knocking him down in the process. Since the applicant continued to resist, the police tied his wrists with a plastic cord. They subsequently took him to a police station for questioning and released him at about 24.00 on the same day. 

According to the applicant’s version of events, he was driving through the centre of Slovenj Gradec when two police cars overtook him and forced him to stop. They dragged him out of the car and pushed him to the ground, tied him up and beat and kicked him for some 15 minutes. They then placed him in a transport vehicle and took him to the police station. On their way, they threatened to kill him by a chainsaw and electro-prodded him several times. At the police station, he was questioned and told that he had failed to comply with an order of the police to stop his vehicle. The applicant claims that he did not attempt to resist arrest.

The applicant was released at about 00.30 and went to the hospital, where he stayed until 19.00 hours of 6 April 1995. The next day, 7 April 1995, he also sought medical aid in the Maribor general hospital.

The medical reports of 6 and 7 April 1995 indicate several lesions, including:

-      injuries to the right eye;

-      painful nose;

-      severe (6 cm by 4 cm) haematoma on the left shoulder;

-      two 4-5 cm linear skin abrasions on the thorax;

-      a child’s-hand-sized moderate oedema behind the right ear;

-      extensive haematoma on the left thigh.

The doctors also presumed a fracture of the right temporal bone, but this was uncertain. The neurological examination revealed nothing noticeable.

Official documents and newspaper cuttings contained in the file indicate that the applicant’s arrest was a part of a larger-scale action undertaken by special police forces (under direct control of the Ministry of the Interior) in conjunction with the local police, against the activities of a criminal syndicate operating on the territory of Slovenj Gradec and Maribor. According to the applicant, about thirty people were arrested during this operation, about a dozen of whom suffered bodily injuries.

On 15 May 1995 the applicant’s lawyer lodged a criminal complaint (kazenska ovadba) with the Slovenj Gradec Internal Affairs Administration (Uprava za notranje zadeve), against unidentified police officers, for causing slight bodily harm and unlawful deprivation of liberty.

On 15 June 1995 the District Public Prosecutor’s Office (Okrožno državno tožilstvo) asked the applicant’s lawyer to add his client’s affidavit to the file, which he did on 20 June 1995. On 21 October 1996 and 6 January 1997, the applicant sought information about the state of progress of the proceedings.

In parallel with the proceedings initiated by the applicant against the police, the latter themselves brought criminal proceedings against him, by lodging a criminal complaint against him on 12 April 1995 for the criminal offence of “obstructing a public officer in the course of his duties”.

On 17 January 1997 the Public Prosecutor dismissed the applicant’s criminal complaint, on the ground that the reports submitted by the Slovenj Gradec police and the Minister of the Interior’s private office showed that the three policemen in question, D.P., J.K. and M.J., had acted lawfully and in line with their professional duties. The applicant was informed that he could initiate a criminal prosecution, as a “deputy prosecutor” (subsidiarni tožilec), within 8 days of the notification of the Public Prosecutor’s decision. The applicant did not avail himself of this opportunity.

On the same day, 17 January 1997 the Public Prosecutor requested the Slovenj Gradec District Court to open a judicial investigation against the applicant.

On 8 April 1997 an investigating magistrate questioned the applicant about the circumstances of his arrest. The applicant denied having committed any offence and complained that he had been beaten and ill-treated by the police. He pointed out that he had a medical report proving his injuries.

On 8 May 1997 further to a proposal of the investigating magistrate, the Slovenj Gradec District Court decided not to open a judicial investigation against the applicant. On 12 May 1997 the Public Prosecutor appealed against this decision. A judicial investigation was subsequently opened and witnesses were heard on 19 February and 5 March 1998.

According to the Government, the applicant lodged, on 16 July 1998, a constitutional appeal relating to another set of criminal proceedings, which also included a complaint concerning ill-treatment allegedly sustained by him on 5 April 1995. The constitutional appeal was later dismissed by the Constitutional Court for failure to exhaust domestic remedies available to him.

On 28 December 1998 the Public Prosecutor lodged an act of indictment against the applicant for “attempting to obstruct a public officer in the course of his duties”. On 27 January 1999 the applicant challenged the indictment.

On 13 September 1999 the Slovenj Gradec District Court held a hearing. By a judgment of 22 November 1999, the Court acquitted the applicant. On 5 January 2001 the Public Prosecutor appealed against the judgment and on 27 September 2000 the Maribor Higher Court overturned the judgment of acquittal and referred the case back to the same court for retrial.

By a judgment of 12 February 2001, the Slovenj Gradec District Court convicted the applicant for “attempting to obstruct a public officer in the course of his duties” and sentenced him to 3 months’ imprisonment, suspended for 3 years.

On 12 March 2001 the Public Prosecutor appealed against this judgment and applied for a stiffer sentence. The applicant also appealed.

On 9 May 2001 the Maribor Higher Court upheld the conviction but slightly amended the judgment with respect to the costs of the proceedings.

The applicant did not lodge an appeal on points of law against this judgment.

Finally, on 11 October 2001 the Slovenj Gradec District Court ordered the applicant to pay an additional sum to cover the costs of one of the witnesses heard during the proceedings.

 

B.  Relevant domestic law

1.  The Constitution (Ustava Republike Slovenije, Official Gazette no. 33/91)

Article 18

(Prohibition of Torture)

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

Article 19

(Protection of Personal Liberty)

“Everyone has the right to personal liberty. No one may be deprived of his liberty except in such cases and pursuant to such procedures as are provided by law. ... ”

Article 23

(Right to Judicial Protection)

“Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court established by law. ... ”

Article 26

(Right to Compensation)

“Everyone has the right to compensation for damage caused through unlawful actions in connection with the performance of any function or other activity by a person or body performing such function or activity under state authority, local community authority or as a bearer of public authority. Any person sustaining damage has the right to demand, in accordance with the law, compensation also directly from the person or body that has caused damage.”

2.  The Criminal Procedure Act (Zakon o kazenskem postopku, Official Journal no. 63/94, with amendments)

Article 20

“The Public Prosecutor has a duty to initiate a criminal prosecution if reasonable suspicion exists that a criminal offence for which the perpetrator is prosecuted ex officio has been committed, unless this Act provides otherwise.” 

Article 60

“1. If the Public Prosecutor finds that there is no basis for the prosecution of a criminal offence for which the perpetrator is prosecuted ex officio, or if he finds that there is no basis for prosecution of any accomplice against whom a criminal complaint has been made, he shall so notify the injured party within eight days and inform him that he may initiate a prosecution proprio motu. The Court shall proceed likewise in the case of discontinuance by the Public Prosecutor.

2. The injured party has the right to commence or continue prosecution within eight days after receiving the information mentioned in paragraph 1.”

Article 145

“1. All State authorities and bodies exercising public authority are under a duty to report any criminal offence for which a public prosecution may be brought if they are informed of such offence or become aware of it by any other means.

2. State authorities and bodies mentioned in the preceding paragraph shall also report any evidence that they are aware of and ensure that all evidence of the offence, including any objects used to commit it, is preserved.”

COMPLAINTS

1.  The applicant complains under Article 3 of the Convention that the police ill-treated and beat him during his arrest. The excessive use of force by the police constituted, in his view, torture or inhuman or degrading treatment. He claims that Slovenian police frequently overstep their prerogatives and that judicial authorities tolerate such acts because of political pressure. In addition, his arrest was contrary to his right to liberty of person, as protected by Article 5 of the Convention.

2.  The applicant also invokes Article 6 of the Convention in order to complain in general about the unfairness and excessive length of criminal proceedings, as well as about bias on the part of the judiciary.

THE LAW

A.      Complaints concerning Articles 3 and 5 of the Convention

The applicant complained that the manner in which he was treated during his arrest had given rise to a violation of Article 3 of the Convention, according to which:

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

The applicant submitted that his arrest also gives rise to a violation of Article 5 of the Convention, which, to the extent relevant, provides:

“ 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

..."

The respondent Government disputed the admissibility of the present case on different grounds.

1.  Exhaustion of domestic remedies

The Government maintain that the applicant has not exhausted domestic legal remedies concerning the alleged violation of Article 3.

The Government submit that, as regards the criminal proceedings against him, the applicant did not exhaust domestic remedies since he failed to lodge an appeal on points of law with the Supreme Court and thus to lodge a constitutional appeal. However, on 16 July 1998 he did lodge a constitutional appeal relating to another set of criminal proceedings, including a complaint concerning ill-treatment allegedly sustained by him on 5 April 1995, but this was dismissed by the Constitutional Court for failure to exhaust domestic remedies available to him.

The Government also submit that the applicant did not commence criminal proceedings as a “deputy prosecutor” (subsidiarni tožilec) after his criminal complaint against the policemen had been dismissed by the Public Prosecutor. The applicant was given explicit legal advice about the possibility open to him by the latter’s decision of 17 January 1997. The applicant should thus have submitted either an act of indictment (obtožni predlog) or a request for preliminary investigative measures (preiskovalna dejanja) to the District Court of Slovenj Gradec.

The Government further contend that similarly, the applicant failed to institute civil proceedings to recover damages for injuries inflicted on him during his arrest by the police officers, a civil action being a remedy that is entirely independent of any criminal proceedings or decisions not to prosecute alleged criminal offences.

The applicant asserts that he had lost all confidence in the Slovenian judiciary during the criminal proceedings against him.

As to the submission that he should have initiated a criminal prosecution as a victim, the applicant observes that such a prosecution is not an effective remedy and that courts are afraid to rule against the State. The same applies to the possibility of a civil action, especially because the State did not provide him with the list of names of the police officers who took part in his arrest. Moreover, civil proceedings are well known to be very lengthy in Slovenia.

The applicant further claims that the story as presented in the Government’s observations is a carefully constructed version of events. Its real background is connected with a personal animosity of one of the policemen involved, with whom he had previously had a quarrel.

In the Court’s view, the question as to whether or not the applicant exhausted domestic remedies, as required by Article 35, is closely linked to the merits of his complaint under Articles 3 and 5. Hence, to avoid prejudging the latter issue, both questions should be examined together. Accordingly, the Court joins the question of the exhaustion of domestic remedies to the merits and reserves it for later consideration.

2.  Compliance with the six month rule

With respect to the proceedings commenced with the lodging of a criminal complaint by the applicant to the Slovenj Gradec Public Prosecutor’s Office against the police officers involved, the Government submit that more than six months have elapsed between the date on which the Public Prosecutor’s Office dismissed that complaint and that on which he submitted his application to the Court.

The applicant asserts in general that he felt obliged to lodge an application to the Court because of the serious nature of human rights violations.

In the Court’s view, the question as to whether or not the applicant lodged his application within the six-month time-limit set by Article 35 is closely linked to the merits of his complaint under Article 3. Hence, to avoid prejudging the latter issue, both questions should be examined together. Accordingly, the Court joins the question of compliance with the six-month rule to the merits and reserves it for later consideration.

3.  Whether the application is manifestly ill-founded

As to the matter of compliance with Articles 3 and 5 raised by the applicant, the Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits.

B.  Complaints concerning Article 6 of the Convention

The applicant also invokes Article 6 of the Convention in order to complain in general about the unfairness and excessive length of criminal proceedings, as well as about bias on the part of the judiciary.

The relevant part of that Article is worded:

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..."

The Government observe that the applicant did not lodge an appeal on points of law (zahteva za varstvo zakonitosti) against the judgment of 9 May 2001 and, ultimately, a constitutional appeal with the Constitutional Court.

As regards the length of proceedings, the Government contend that the applicant did not commence an administrative dispute for the protection of his right to trial within reasonable time, as guaranteed by Article 23 of the Slovene Constitution. They also cite specific provisions of Slovenian legislation which require that actions undertaken by courts and other participants in the legal process be completed within certain periods.

In addition, the Government submit that another remedy was available in the applicant’s case, namely the “supervisory complaint” (nadzorstvena pritožba), based on Article 72 of the Law on Courts that had been amended in 2000. Under the new provisions, the president of a court can recommend measures to remedy irregularities in procedure.

The Government also observe that, given the nature of the criminal offences in question, the Slovenj Gradec Public Prosecutor’s Office cannot be reproached either for its conduct or any delay of such a nature as to give rise to a violation of Article 6 of the Convention.

The applicant submits that more than four years have elapsed between the events in question and the judgment of the first-instance court. Such a delay cannot be, in his view, attributed to him.

The Court notes that, as far as his complaint could be understood to raise questions concerning the right to a fair trial under Article 6, the applicant did not lodge an appeal on points of law (zahteva za varstvo zakonitosti) against the judgment of 9 May 2001 and ultimately a constitutional appeal with the Constitutional Court. He therefore failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. This part of the application must therefore be rejected under Article 35 § 4 of the Convention.

Inasmuch as the complaints under Article 6 concern the length of criminal proceedings, the Court considers that they are closely linked to the complaints raised under Article 3 and should be examined in conjunction with the merits of that complaint.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits of the case, the application with respect to the applicant’s complaints under Articles 3, 5 and Article 6 (length of proceedings) of the Convention;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress 
 Registrar President

MATKO v. SLOVENIA DECISION


MATKO v. SLOVENIA DECISION