6.  The applicant, Mr Fabian Gjini, a Croatian citizen of Albanian origin, was born in 1972 and lives in Crikvenica, Croatia.
7.  On 22 August 2008 the applicant was arrested by the Serbian police on suspicion of having attempted to pay a toll at Tovarnik border crossing (a border crossing between Serbia and Croatia) with a counterfeit ten‑euro (EUR) banknote.
8.  Upon his arrest, the applicant was taken before an investigating judge. The applicant was unable to provide the EUR 6,000 security for his bail, and the investigating judge ordered his detention.
9.  The applicant spent 31 days in custody in Sremska Mitrovica Prison and was released from detention on 22 September 2008.
10.  On 30 September 2008 the criminal proceedings against the applicant were discontinued by the prosecuting authorities, because the expert tests performed on the allegedly counterfeit banknote showed that it was actually genuine.
11.  The applicant alleges that in Sremska Mitrovica Prison he was placed in a four-bed cell which already housed four other inmates. Because of the lack of space, the applicant had no proper bed and had to sleep on the floor, on a sheet of foam material.
12.  According to the applicant, the ill-treatment and humiliation started immediately. His cellmates forced him to mop the cell floor. While he was mopping, they did not allow him to raise his head, and would kick him sporadically. After he had mopped up, the cellmates would slap and kick the applicant for his “failure” to mop the floor properly. The applicant was compelled to clean the floor again and again. He could not remember how many times he had mopped the cell floor. He remembered, however, that his cellmates poured the water containing detergent over him to teach him how to get “things” clean.
13.  According to the applicant, his cellmates thought that he was an informer. They did not believe that he had been put in their cell because of a counterfeit note. Rather, they thought that he had been placed there to spy on them and find out about their crimes.
14.  The cellmates threatened the applicant by saying that they would stage his suicide if he told anyone what was happening in the cell. At night, the applicant was put in the toilet. There, the cellmates forced him to keep his feet in cold water for the whole night. He was not allowed to move. The morning after, the skin on his feet tore off and open wounds appeared.
15.  The situation worsened after the applicant’s cellmates found out about his origin. Upon learning that he lived on the Croatian coast, they said that they wanted to test him to see how well a person from the coast could “dive”. They filled a bucket with water and put the applicant’s head in it. Afterwards, they would shower the applicant with cold water. This test was performed over and over again.
16.  On one occasion, the applicant’s cellmates gave him a wet towel and forced him to fight with another prisoner. After the applicant had managed to hit his opponent, his four cellmates jumped on him, punched and kicked him, and abused him for daring to hit a Serb.
17.  They made him sing Serb nationalist songs (četničke pesme). After he said that he did not know any, they taught him some and forced him to sing them for several nights. The applicant could not remember whether he had also been forced to sing Croat nationalist songs (ustaške pesme).
18.  According to the applicant, his cellmates raped him. Although he could not remember the rape itself, he assumed that it happened as follows. One day the cellmates gave him a glass of water. The water caused him to feel dizzy, and he felt unable to walk and quickly lost consciousness. The next morning, he had pain in his anus and saw blood in his faeces. On that day his cellmates shaved him and shaved his eyebrows. Later, he discovered that shaved eyebrows were a sign that he had become someone’s “girl” (curica). Being a “girl” meant that he had been sodomised.
19.  According to the applicant, the prison guards were perfectly aware of what was happening to him. In particular, all the events happened while one guard – who appeared to be a school friend of one of the applicant’s cellmates – was on duty. The applicant remembered that the prison guards laughed at him openly during his walks in the prison yard. He also had impression that everything that happened to him was because of his origin and nationality.
20.  Several days after the start of his detention, the applicant’s lawyer noticed changes in the applicant’s behaviour and sensed that something was wrong. The applicant was afraid to say anything to his lawyer. Nevertheless, the lawyer urged the prison authorities to move the applicant to another cell.
21.  After his relocation, the applicant was no longer ill-treated.
22.  The Government contended that the applicant’s version of the events was not supported by evidence. They did not provide a separate description of the events from 22 August 2008 until 22 September 2008 when the applicant was detained in Sremska Mitrovica Prison.
23.  On 29 October 2008 the applicant invited the Ministry of Justice to make a payment in respect of his allegedly unlawful detention. He received no reply.
24.  On 1 September 2009, the applicant amended his proposal, adding a request for compensation for the ill-treatment he had suffered during the period of detention. Again, he received no reply.
25.  On 25 December 2009 the applicant lodged a civil complaint against the Republic of Serbia with the Second Municipal Court (subsequently renamed the Court of First Instance) in Belgrade. He requested compensation for his detention, and in respect of the non-pecuniary damage he had sustained in terms of fear, physical pain and mental anxiety owing to the ill-treatment to which he had been subjected during his time in detention.
26.  On 12 March 2010 the Republic Attorney General’s Office (Republičko javno pravobranilaštvo) contested the applicant’s claims. The office underlined that the applicant had failed to submit any medical evidence in support of his claims concerning the alleged ill-treatment.
27.  On 15 June 2010 a hearing was held before the Court of First Instance. The Republic Attorney General’s Office was not present. The applicant was represented by his lawyer. However, owing to the nature of the applicant’s complaints, the domestic court decided that the applicant had to be present at hearings. The applicant was summoned to attend the next hearing, scheduled for 21 October 2010, subsequently rescheduled for 2 February 2011.
28.  At the hearing of 2 February 2011, and the further hearing on 20 May 2011, the judge interviewed several witnesses: (i) P.S., who had been serving a sentence in Sremska Mitrovica Prison at the same time when the applicant had been there; (ii) D.Ž., who had represented the applicant in the criminal proceedings and was familiar with the events in prison; and (iii) M.Č., the applicant’s uncle.
29.  P.S. stated that he had met the applicant in Sremska Mitrovica Prison. The applicant was placed in a cell in the part of the prison where he was imprisoned. P.S. remembered hearing someone singing Serb and Croat nationalist songs at night. That was before the applicant was transferred to another part of the prison. P.S. and the applicant used to talk during the morning walks in the prison. One morning P.S. observed that the applicant’s eyebrows had been shaved. On that occasion, he also noticed haematomas behind the applicant’s ears and on the upper part of his arm. He could see the injuries because it was summer and they were all in T-shirts. The applicant had a strange look in his eyes and seemed very scared. The applicant avoided the company of other prisoners and complained to P.S. regarding the ill-treatment to which he had been subjected by his cellmates. The applicant also complained that his anus was bleeding and that he had been given some medicine which had made him lose consciousness. P.S. could not remember whether someone had screamed at night. Their cells were 10-15 metres apart. P.S. confirmed that shaved eyebrows in prison meant that the person had been raped. He also saw the damaged skin on the applicant’s feet. The guards in prison must have heard that somebody was singing songs, and they must also have noticed other signs of maltreatment. The guards knew what shaved eyebrows meant. Prison guards patrolled the prison corridors day and night. Through peepholes, they controlled what prisoners did in their cells. There were cameras placed in the corridors, but there were no cameras in the cells. The applicant was moved to another cell after his lawyer urged the prison authorities to relocate him. P.S. left Sremska Mitrovica Prison seven to eight days before the applicant.
30.  D.Ž. met the applicant in 2008 when he represented him in the criminal proceedings concerning the use of an allegedly forged banknote. He visited the applicant in prison. On that occasion, D.Ž. noticed that the applicant had been shaved and his eyebrows had also been shaved. The applicant looked disorientated and scared. D.Ž. asked the applicant whether there was any problem, but the applicant could not give him a clear answer. The applicant seemed frightened and confused. D.Ž. urged the prison authorities to transfer the applicant to another cell. Specifically, D.Ž. called the prison authorities, expressed his concern about the applicant’s treatment, and underlined that the authorities should respect the laws and regulations concerning the placement and status of detainees. D.Ž. also talked to another client, V.D., who informed him what had happened to the applicant.
31.  M.Č. had known the applicant since birth. He was the applicant’s uncle. He visited the applicant once during his time in prison. On that occasion, he could not recognise the applicant. The applicant was bald, with shaved eyebrows. M.Č. also noticed bruises on the applicant’s right arm, as well as bruises on his head. M.Č. stated that he wanted to know what had happened to the applicant, yet the applicant was evasive and avoided eye contact. M.Č. had previously known the applicant to be a happy and cheerful person, but said that the applicant had never fully recovered from what had happened to him in prison.
32.  Between the two hearings, a statement was taken from another witness, V.D., who was still serving his sentence in Sremska Mitrovica Prison. This witness remembered the applicant, but was not exactly sure what had happened to him during his time in the prison. V.D. recalled seeing him with shaved eyebrows and a strange haircut. He also recalled hearing the applicant singing or screaming at nights, but he could not remember what he had actually been singing.
33.  At the hearing of 9 November 2011 two expert witnesses – an expert on traumatology and a neuropsychiatrist – submitted their reports. They found that, due to his suffering in prison, the applicant had suffered certain physical pain and had sustained an overall loss of 10% in his “vital activity” (umanjenje opšte životne aktivnosti).
34.  The Republic Attorney General’s Office denied the events in Sremska Mitrovica Prison as alleged by the applicant. It, in particular, referred to the absence of medical evidence.
35.  On 9 November 2011 the Court of First Instance in Belgrade accepted the applicant’s complaint concerning the request for compensation for his detention, but rejected his request in respect of compensation for non-pecuniary damage caused by ill-treatment in a State-owned institution. The court found:
“[The applicant has] no medical certificate proving the injuries. Medical expert witnesses testified on the basis of the claimant’s statement. The testimonies of other witnesses are based on what the claimant told them. The claimant, if injured at all, should have gone to see the doctor in the detention unit; he ought to have visited the doctor, who would have confirmed the injuries, or he should have said something in order to be transferred to another cell and protected. The claimant has no medical certificate concerning any injuries.”
36.  On 17 October 2012 the Court of Appeal in Belgrade upheld the Court of First Instance’s decision as regards the compensation for detention, but quashed the rejection of the claim for compensation in respect of the ill‑treatment. The case was remitted to the Court of First Instance for reconsideration. As regards the Court of First Instance, the Court of Appeal stated the following:
“[It] failed to properly evaluate the evidence in accordance with Article 8 of the Law on Civil Procedure, in accordance with which a court must decide on the facts established as proven, but on the basis of a conscientious and meticulous assessment of each particular piece [of evidence] and of all the evidence together, as well as in relation to the outcome of the whole proceedings. Given that such an evaluation was not carried out in this particular case, the findings of the first-instance court that it had not been proved that the claimant had been ill-treated and molested by other cellmates during his time in detention – causing him to sustain different types of non-pecuniary loss for which the [State] could be held responsible as defined in Article 172 of the Obligations Act (Zakon o obligacionim odnosima) – cannot be accepted with any certainty.”
37.  In the reopened proceedings, the Court of First Instance re-examined the applicant’s first lawyer, D.Ž., as well as the two expert witnesses. The court also considered reports produced by a psychologist and a psychiatrist from Rijeka, Croatia concerning the applicant’s current mental health and emotional distress. Those reports confirmed that, because of the ill-treatment he had sustained in Sremska Mitrovica Prison, the applicant was still in a state of mental anxiety.
38.  On 10 May 2013 the Court of First Instance awarded the applicant 200,000 Serbian dinars (RSD – approximately EUR 1,900) in respect of non-pecuniary damage for the 10% loss in his general vital activity associated with the events in detention. However, the claim for the applicant’s physical suffering was rejected because, in the court’s view, his suffering had not constituted grievous but rather slight bodily harm, for which no compensation could be awarded, according to the law. Also, the court refused to award the applicant compensation for non-pecuniary damage for his fear.
39.  On 10 December 2013 the Court of Appeal in Belgrade upheld the decision of the Court of First Instance in part and reaffirmed the findings of that court that the applicant had suffered from an acute stress disorder as a result of being detained and harassed by other inmates, which, in general, had led to his experiencing post-traumatic stress and a loss in his general vital activity. However, the Court of Appeal awarded the applicant an additional RSD 50,000 (approximately EUR 450) for the fear arising from the events during his detention, and explained its reasoning in the following manner:
“Taking into account the established factual situation and all the circumstances of the present case, as well as the findings of the neuropsychiatrists, according to which the claimant suffered post-traumatic stress during and after his detention, this being, in itself, a complex reaction when a person’s physical and personal integrity is threatened, which [in this case] lasted for days and involved fear, emotional distress, a feeling of sadness, distraction and despair, and being a reaction which, by its nature, is more complex than a fear of strong intensity, the Court of Appeal finds that, in accordance with Article 200 of the Obligations Act, the claimant is entitled to a just award for non-pecuniary damage for the fear he experienced.”
40.  On 18 January 2014 the applicant lodged a constitutional appeal. He complained under Articles 21, 23, 25, 28, 29, 32, 35 and 36 of the Constitution (articles corresponding to Articles 3, 6, 13 and 14 of the Convention). In particular, his complaint was as follows:
“The domestic courts have unlawfully and unconstitutionally rejected the claimant’s clearly justified claim for compensation in respect of the non-pecuniary damage he suffered on account of the violation of his human dignity after being placed in illegal detention, where he was molested for days by a group of prisoners as a person of Croatian and Albanian origin, being beaten and kicked all over his body, drenched with water, beaten with wet towels, tortured, battered, raped and thereafter shaved all over his body, which was the symbol of a raped person, and being subjected to real and serious threats that he would ‘commit suicide by hanging [himself] over the door handleʼ, or be cut with a razor blade and similar items. And all this was done with the silent approval of prison officers who knew which cell they had put the claimant in, and who knew or ought to have known about everything that happened to him.”
41.  On 9 June 2015 the Constitutional Court rejected the applicant’s constitutional appeal. It only considered his complaint under Article 6 of the Convention, and found it to be manifestly ill-founded. The Constitutional Court did not address any other complaint raised by the applicant.
42.  About the ill-treatment he had suffered during the period of detention, the applicant also complained to the President of the Republic and to the Minister of Justice herself. No one ever replied to those complaints.
43.  On 24 February 2010 the applicant’s representative complained to the Provincial Ombudsperson (Pokrajinski ombudsman) regarding the applicant’s ill-treatment in prison. On 16 March 2010 the Provincial Ombudsperson replied that he had no jurisdiction over the case, as the applicant was no longer in detention.
44.  On 1 March 2010 the applicant’s representative also informed the State Ombudsperson (Zaštitnik građana Republike Srbije) about the detention and ill-treatment of the applicant. He particularly highlighted the fact that even if State authorities knew or ought to know about the applicant’s ill-treatment in detention, none had ever launched an investigation into the case. The State Ombudsperson replied on 26 April 2010 that he had no jurisdiction over the work of the public prosecutor’s office or the courts, and accordingly had no jurisdiction over the case.