Atanasije RISTIC v. Serbia
On May 27 and July 1, 2025, the European Court of Human Rights (hereinafter: the Court) rendered, and on August 26 of the same year, announced its judgment in the case AthanasiusRistic against Serbia, number 38336/21.
It's a verdictbrought More.
The case relates to the alleged subjecting of the applicant to medical intervention against his will and handcuffing to a hospital bed. Also, the subject refers to illegal deprivation of liberty and detention of the applicant without records of deprivation of liberty, failure to inform the applicant of the reasons for deprivation of liberty, denial of the possibility for the applicant to be brought before a court to check the legality of detention and the impossibility of requesting a review of the deprivation of liberty and detention by the court. The court assessed that the applicant's complaints under Article 3 of the Convention were clearly unfounded, and that the complaints under Article 5 of the Convention were founded, because no decision was made on his detention or detention, because he was not informed of the reasons for his deprivation of liberty, because he was not brought before the court to examine the legality of his deprivation of liberty, and because he was not given the opportunity to challenge the legality of his deprivation of liberty before the court. |
THE CIRCUMSTANCES CASES
On November 19, 2016, around 10 p.m,00 hour, while he was in the company of two friends on the street, the applicant was legitimized by the police officers of the Palilula Police Station (hereinafter: PS Palilula). During identification, the applicant tried to run away and on that occasion he swallowed a bag of narcotic drugs that he had previously kept in his pocket. Soon, the police officers caught up with him, handcuffed him and informed him that he was arrested for assaulting an official, after which he was taken to the Palilula police station in handcuffs.
The applicant was interrogated at the police station, and on that occasion he was not served with a detention decision, nor was he allowed to contact a lawyer, although he expressly requested it.
During the conversation with the police officers, the applicant admitted that he had swallowed a couple of bags of narcotic drugs, after which he was taken by an ambulance, accompanied by police officers, to the Clinic for Emergency and Clinical Toxicology of the Military Medical Academy in Belgrade (hereinafter: VMA).
The applicant was admitted to the VMA on November 20 at 00:50. According to the applicant, throughout his stay at this clinic, until November 23 at 1:00 p.m., he was under 24-hour surveillance by police officers who took 12-hour shifts and even went to the toilet with the applicant. The applicant claimed that during his stay at the VMA he was handcuffed to the hospital bed and was prevented from leaving the bed on his own accord or moving around the room. At the end of 48 hours from the time of deprivation of liberty, the applicant once again asked the present police officers to allow him to speak with a lawyer, but his request was rejected with the explanation that he was not deprived of his liberty, but that he was undergoing hospital treatment.
On November 22, 2016, the applicant was given a laxative, after which he expelled from his body the bags with narcotic drugs that he had swallowed a few days earlier and the police officers confiscated the bags with the powdery substance (On June 22, 2018, the First Basic Court in Belgrade accepted the plea agreement and sentenced the applicant to probation). On the same day, around 4:00 p.m., he was allowed contact with a lawyer, and two friends visited him.
The applicant was discharged from the hospital on November 23, 2016 at around 1:00 p.m. and was escorted to the Palilula police station, where a statement was taken from him in his capacity as a citizen, and after that he was released home at 3:20 p.m.
On December 23, 2016, the applicant submitted a constitutional complaint to the Constitutional Court due to the violation of principles and rights from Art. 22. (right to judicial protection), 25. (prohibition of torture), 27. (right to freedom and security of person), 28. (treatment of a person deprived of liberty), 29. (additional rights in case of deprivation of liberty without a court decision) and 36. (right to equal protection of rights and to a legal remedy) of the Constitution of the Republic of Serbia and Art. 3, 5 and 13 of the Convention.
The Constitutional Court decidedUž-9918/2016 of December 3, 2020, rejected as unfounded the applicant's constitutional complaint filed against the act of "illegal and arbitrary deprivation of liberty from November 19, 2016 at 10:00 p.m. to November 23, 2016 at 3:20 p.m.", the act of "failure to notify the on-duty deputy public prosecutor of the deprivation of liberty of the applicant of the constitutional complaint in accordance with Article 294 of the Criminal Code procedure" and acts of "inhuman and degrading treatment during the applicant's stay at the Toxicology Department of the Military Medical Academy in Belgrade". The applicant's constitutional appeal filed against the actions of "Inspector I. dated November 19, 2016" was rejected.
The Constitutional Court took the position that "the action of the competent state authorities was not based in all details in formal legal regulations, but it was undeniably legitimate and constitutionally acceptable, because it represented a kind of action in a specific "last resort, aimed at saving the life of a person". Also, the Constitutional Court concluded that "with a legitimate teleological interpretation, it could be concluded that even if there were a possible conflict between the right to life of an individual and the guaranteed rights of that individual from Articles 27, 29 and 36 of the Constitution, the right to life should certainly prevail, without diminishing the principle importance of these three constitutional rights". As for the allegations of the applicant about the actions of Inspector I., which were related to Art. 25 and 28 of the Constitution, the Constitutional Court concluded that they were taken on the night between November 19 and 20, 2016, and that the constitutional appeal was filed on December 23, 2016, and rejected the constitutional appeal in that part as untimely.
COMPLAINTS OF THE APPLICANT AND THE PROCEDURE BEFORE THE COURT
The applicant submitted the petition to the Court on June 30, 2021.
In the petition, he complained about the violation of the prohibition of torture from Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) by alleged abuse during his stay in the hospital by tying him to the bed, depriving him of any privacy while he was in the toilet and forcing him to take a laxative.
The applicant also complained about the violation of the right to freedom and security and to an effective legal remedy from Art. 5 and 13 of the Convention, because he was not informed about his rights during the deprivation of liberty, he was denied the possibility of contact with a lawyer and his family during that period, he was not brought before a judge who would decide on detention, nor did he have any legal way to review the legality of detention.
THE DECISION THE COURT
- Article 3 of the Convention
The court dismissed the applicant's complaints about the violation of Article 3 of the Convention as clearly unfounded.
Namely, the Court, applying the "beyond a reasonable doubt" standard, assessed that the applicant did not prove that he was tied to the bed during his stay in the hospital, because after his release on December 23, 2016, he did not request a medical report confirming that he had been tied, nor did he file a criminal complaint or civil suit for damages containing such allegations.
As for the complaints related to the medical intervention itself, the Court took the position that the minimum degree of seriousness according to Article 3 of the Convention was not reached, and in accordance with the practice of the Court. The intervention was undertaken in a specialized institution by professionals, it was of short duration, it did not cause a deterioration of the health condition or physical and psychological suffering, and it was necessary to remove the risk to his life and health.
- Article 5 para. 1, 2, 3 and 4 of the Convention
The court assessed that the applicant's deprivation of liberty was not in accordance with the guarantees from the article5. paragraph 1. Convention, since no decision was made on his retention or detention (withthe date, time and place of deprivation of liberty, the name of the person deprived of liberty, the reasons for detention or detention and the name of the person who made the decision).
Furthermore, the Court found that in the specific case the applicant's right from the article was also violated5. paragraph 2. Convention, because he was not informed about the reasons for the deprivation of liberty.
Also, the Court found that the applicant's right from the article was violated5. paragraph 3. of the Convention, because he was denied the opportunity to be brought before a court to examine the legality of his deprivation of liberty.
Finally, the Court found that the applicant's right from the article was also violated5. paragraph 4. of the Convention, because he was not given the opportunity to challenge the legality of the deprivation of liberty before the court.
FAIRLY SATISFACTION (Article 41 of the Convention)
The court obliged the Republic of Serbia to pay the applicant the amount of 6,000 euros for non-material damages, and the amount of 1,726 euros for the costs of the procedure.