FOURTH SECTION
CASE OF PRANJIĆ-M-LUKIĆ v. BOSNIA AND HERZEGOVINA
(Application no. 4938/16)
 
JUDGMENT
Art 8 • Respect for private life • Applicant repeatedly and forcibly taken for involuntary psychiatric and psychological examinations during criminal proceedings • Court orders not in accordance with the law, given unlawfulness of the continuation of criminal proceedings
Art 3 (substantive) • Degrading treatment • Applicant handcuffed in front of his family and forcibly escorted by police to an involuntary psychiatric examination • Handcuffing not imposed in connection with lawful arrest or detention • No serious cause to fear that applicant might abscond or resort to violence • Applicant outnumbered by four police officers, able to address any resistance by other means • Applicant’s vulnerability as a mentally-ill person not taken into consideration • No waiver of the right not to be subjected to such treatment can be accepted • Handcuffing not made strictly necessary by applicant’s conduct • Handcuffing diminished applicant’s human dignity and was in itself degrading

 
STRASBOURG
2 June 2020
 
FINAL
 
02/09/2020
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pranjić-M-Lukić v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Carlo Ranzoni,
 Stéphanie Mourou-Vikström,
 Georges Ravarani,
 Péter Paczolay, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of Bosnia and Herzegovina, Mr Goran Pranjić-M-Lukić (“the applicant”), on 29 December 2015;
the decision to give notice to the Government of Bosnia and Herzegovina (“the Government”) of the complaints concerning Article 3 and Article 8 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 12 May 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The application concerns the applicant’s alleged subjection to treatment contrary to Articles 3 and 8 of the Convention owing to his repeated forcible escort, under unlawful court orders (including handcuffing on one occasion), to involuntary psychiatric and psychological examinations conducted during the course of criminal proceedings against him. THE FACTS
1. The applicant was born in 1962 and lives in Karlsruhe. He was granted leave to represent himself. 2. The Government were initially represented by their Deputy Agent, Ms. S. Malešić, and then by their Acting Agent, Ms V. Bjelica-Prutina. 3. The facts of the case, as submitted by the parties, may be summarised as follows. The criminal proceedings
4. On 5 April 2004 the applicant allegedly damaged the façade of his neighbour’s house. After the police were summoned, the applicant allegedly spat on and assaulted one police officer and verbally abused another, and was then arrested. He was released on 6 April 2004, after he was questioned by a prosecutor from the Mostar Cantonal Prosecutor’s Office (“the Prosecutor”). 5. On 4 May 2004 the Prosecutor issued an order by which the applicant was to present himself to a psychiatrist so that he could be examined. It appears that the applicant did not comply with that order and that the examination was not conducted. 6. On 16 July 2004 the Prosecutor indicted the applicant for the criminal offence of damaging property belonging to another person and for the criminal offence of assaulting an official person in the performance of his or her security duties (napad na službenu osobu u vršenju poslova sigurnosti). 7. On 9 March 2006 the applicant was granted free legal assistance in the form of a court-appointed lawyer. The applicant immediately objected to the appointment of that lawyer and requested the appointment of N.D.; N.D. was appointed on 15 February 2010. 8. On 22 February 2007 the applicant failed to appear at his trial, justifying his absence by citing a need to attend a mental health centre in Mostar (the Mental Health Centre) owing to the mental illness from which he suffered; the Prosecutor then proposed that the applicant be examined by a psychiatrist, observing that the applicant’s health problems had also been noted during the investigation. On the same day the Mostar Municipal Court (“the Municipal Court”) issued an order that the applicant undergo a psychiatric examination. It appears that no such examination was conducted. 9. On 21 October 2008 the Municipal Court issued a fresh order that the applicant undergo a psychiatric examination, after the perusal of another criminal file relating to the applicant had indicated that he suffered from mental illness. 10. On 3 November 2010 a psychiatric examination was carried out. The applicant was taken to the psychiatrist by force (prinudno dovođenje), as he had failed to appear voluntarily. 11. On 31 December 2010 the psychiatrist issued her expert opinion. She concluded that the applicant was an asocial person who, because of chronic psychological distress, had developed an increasingly wide-ranging and intense series of symptoms, which were developing towards a psychotic state. That caused the applicant to perceive situations that were very tense and containing potential for conflict as threatening to his own survival and well-being – all of which could lead to excessive and impulsive reactions. Therefore, the expert concluded, the applicant was unable to participate in criminal proceedings and proposed to the Municipal Court, as a security measure, the “compulsory psychiatric treatment of the accused” in a psychiatric institution. 12. On 4 March 2011 the Municipal Court terminated the proceedings against the applicant in so far as they concerned the criminal offence of damaging property belonging to another person (see paragraph 6 above) because that offence had become statute-barred. 13. On 8 April 2011 the Municipal Court issued a decision (i) accepting the findings of the expert (see paragraph 11 above) and (ii) adjourning (prekida) the criminal proceedings against the applicant in respect of the criminal offence of assaulting an official person in the performance of his or her security duties (see paragraph 6 above), until such time as his health improved to the extent that he was capable of standing trial. The Court referred the applicant to the Mostar Social Work Centre (“the Social Work Centre”) for further proceedings. The applicant appealed against that decision. 14. On 21 June 2011 the Mostar Cantonal Court (“the Cantonal Court”) dismissed the applicant’s appeal. The non-contentious proceedings
15. On 25 October 2011 the Social Work Centre lodged an application, in non-contentious proceedings, with the Municipal Court, seeking, as a security measure, that the applicant be obliged to undergo mandatory psychiatric treatment in a health institution (see paragraph 11 above). 16. On 18 April 2012 the Municipal Court asked the Social Work Centre to indicate whether it continued to seek the measure that it had sought initially, or if it now recommended that the applicant be (within the meaning of sections 45 to 59 of the Non-contentious Proceedings Act – see paragraphs 49 below) detained (zadržan) in a health institution. The Social Work Centre replied that it maintained its initial application. 17. On 6 November 2012 the Municipal Court dismissed the application lodged by the Social Work Centre (see paragraph 15 above) and terminated the proceedings (obustavlja se). It held that it did not have the authority to order the measure sought, given that, pursuant to section 43 of the Mental Health Act 2001 (see paragraph 48 below), the only body with authority to order such a measure was a criminal court within the course of criminal proceedings. It reasoned, on the basis of the evidence presented, that the offence in question had not been committed while the applicant had been in a state of insanity, and that the applicant was not a “person with a mental disorder” within the meaning of section 45 of the Non-contentious Proceedings Act and section 22 of the Mental Health Act 2001 (see paragraphs 48 and 49 below). It held that upon that decision becoming final the procedure would be continued under the rules of criminal proceedings, and that the applicant had the right to appeal against its decision within fifteen days of being served with it. 18. On 6 February 2013 the applicant was served with that decision, and he appealed against it on 21 February 2013 (that is to say within the statutory fifteen-day deadline – see paragraph 49 below), citing Articles 3 and 6 of the Convention. 19. On 22 December 2015 the Cantonal Court rejected the applicant’s appeal as inadmissible. It held that (i) the applicant had no legal interest in appealing against the decision delivered during the non-contentious proceedings, as those proceedings had been terminated, and (ii) in accordance with the rules of criminal proceedings, the proceedings regarding the imposition of a security measure requiring that the applicant undergo psychiatric treatment in a health institution were to be continued, once the decision delivered during the non-contentious proceedings had become final. The continuation of criminal proceedings
20. On 21 December 2012 the Municipal Court issued a new order for the applicant to undergo an expert examination by a psychiatrist. It instructed the psychiatrist to examine the case file, as well as the medical documentation held by the Mental Health Centre in Južni Logor Hospital in Mostar (“Mostar Hospital”), where – according to the information that it had – the applicant was being treated. The applicant’s examination was to be conducted with special emphasis on determining (i) whether he was capable of following the proceedings and (ii) the extent of his sanity at the time of his committing the offence. 21. On 27 December 2012 the applicant lodged a submission with the Municipal Court in which he noted that (i) the criminal proceedings against him had been adjourned on 8 April 2011 (see paragraph 13 above) and (ii) the non-contentious proceedings had still not been concluded, as his appeal remained pending (see paragraph 18 above); accordingly, he argued, the court’s order that he undergo a psychiatric examination was “pointless”. 22. On 17 January 2013 the Municipal Court summoned the applicant for a psychiatric examination at Mostar Hospital scheduled for 23 January 2013, pursuant to Article 124 of the Code of Criminal Procedure (see paragraph 47 below). It also stated that if the applicant did not comply with the order, or if the order could not be served, he would be transported by the judicial police to the examination, in accordance with Article 139 of the Code of Criminal Procedure. 23. On 21 January 2013 the applicant lodged a submission with the Municipal Court in which he repeated his previous arguments (see paragraph 21 above) and added that the Municipal Court was acting in a manner that was contrary to the Code of Criminal Procedure in so far as it had not delivered a fresh decision on the continuation of the adjourned proceedings. Given all the circumstances, he refused to attend the scheduled examination. 24. On 30 January 2013 the Municipal Court issued an order (dovedbeni nalog), in accordance with Article 139 (see paragraph 47 below), to the judicial police to take the applicant to Mostar Hospital by force (prinudnim putem) for psychiatric and psychological examination. It also ordered the judicial police to be present at the applicant’s examination. 25. On 5 February 2013 the applicant was taken by the judicial police for examination; however, no examination was actually conducted, since the applicant lodged a request that he not be examined by those particular experts. That request was refused by the Municipal Court on 13 March 2013. 26. On 29 March 2013 the Municipal Court again summoned the applicant to Mostar Hospital for a psychiatric examination aimed at determining whether he was capable of following the criminal proceedings against him (see paragraph 20 above). 27. On 12 April 2013 the applicant lodged a submission with the Municipal Court in which he stated that his being ordered to attend the examination had exposed him to various “methods of torture”, which had affected his mental integrity, and that he would not comply with the order. He again referred to the decision delivered during the non-contentious proceedings (see paragraph 17 above). 28. On 7 May 2013 the Municipal Court issued another order, in accordance with Article 139 (see paragraph 47 below), to the judicial police to take the applicant by force to Mostar Hospital and to be present at his psychiatric and psychological examination. 29. On 8 May 2013 the applicant was taken by force for examination by the judicial police. The applicant again lodged a request that he not be examined by the above-mentioned experts. It appears that the Municipal Court did not decide on the exemption request; in any event, no examination took place. 30. On 24 May 2013 the Municipal Court summoned the applicant to attend the court hearing scheduled for 7 June 2013. The applicant was also advised that he could engage a defence lawyer. 31. On 3 June 2013 the applicant lodged a submission with the Municipal Court in which he stated that he was not capable of participating in the criminal proceedings, referring to the expert opinion dated 31 December 2010 (see paragraph 11 above). The applicant added that the decision delivered during the non-contentious proceedings (see paragraph 17 above) was still not final. 32. On 5 June 2013 the Municipal Court issued another order, in accordance with Article 139 (see paragraph 47 below), to the judicial police to take the applicant by force to Mostar Hospital, and to be present at his psychiatric examination, scheduled to be held on 6 June 2013. 33. On 6 June 2013 the applicant was taken by force by four judicial police officers to the neurology department of Mostar Hospital for a psychiatric examination, which was held on that day. On the same day, the judicial police also issued a “Confirmation regarding the entering and examination of [the applicant’s] flat and other spaces” (Potvrda o ulasku i pregledu stana i drugih prostorija – “the Confirmation”), which indicated that three police officers had entered the applicant’s home while enforcing the court order for his psychiatric examination. It furthermore stated that the applicant’s father, who was the owner of the flat, had refused to sign the Confirmation, so it had been left with him in the living room. The report on the officers’ visit to the applicant’s home, dated the same day and signed by the four police officers, reads in the relevant part as follows:
“... Upon arriving at the residence indicated in the order, the [Court Police] found the accused, Goran Pranjić-M-Lukić, at home at 14:30. The Court Police informed the accused, Goran Pranjić-M-Lukić, of the reasons for their arrival [and] gave him a copy of the cited order by the Mostar Municipal Court, after which he was asked to accompany the [judicial police officers], which he refused to do, saying “that he had been examined, and that he would not come with us”. The leader of the [judicial police officers] several times repeated to the accused that he had to come, which he energetically refused to do and turned towards the staircase leading to the other floor of the house. Since the judicial police officers were situated close to the [accused] judicial police officer M.A. stood at the door leading to the other floor, thus stopping the [accused] from [carrying out] his intention, while judicial police officer L.A. ordered the accused to put his hands behind his back, which he did, and then he applied the binding measures [sredstvo za vezivanje] (handcuffs), without using other means of coercion, after which [the accused] was placed in the official vehicle and taken to the Mostar Centre.
... The judicial police ensured the security of the examination, which lasted from 16:00 until 17:30, during which there were no problems [nije bilo negativnosti].
... During the execution of the cited [court] order the powers exercised were provided for by the Judicial Police Act and the Rules on the Judicial Police, and there were no problems [nije bilo negativnosti”] – nor were any types of coercive measure [employed].”
34. According to the medical evidence submitted by the applicant – namely the injury report (prijava o povredi) dated 10 June 2013 issued by the emergency department of the Mostar Health Centre – the applicant was handcuffed during his forcible escort to the psychiatric examination. The doctor established that the applicant had sustained three to four hematomas on his right upper arm, each measuring 1 cm by 1 cm. The doctor also noted the applicant’s statement that his forcible handcuffing by the judicial police had caused him mental injuries (psihičke povrede) and anxiety. 35. On 18 June 2013 the Municipal Court issued another order, in accordance with Article 139 (see paragraph 47 below), to the judicial police to transport the applicant by force to Mostar Hospital, and to be present at his psychological examination. The examination was held on 19 June 2013. 36. On 8 July 2013 the Municipal Court decided to adjourn the criminal proceedings against the applicant and referred him to the Social Work Centre for further non-contentious proceedings. In its reasoning the Municipal Court, fully accepting the expert reports, established that the applicant suffered from “permanent (chronic) psychological illness, currently at the progression phase”. At the time of the examination the applicant had been mentally incapacitated (neuračunljiv), whereas at the time of the commission of the alleged offence his sanity had been significantly reduced. It concluded that the applicant was not capable of participating or following the criminal proceedings against him. On the same day the Municipal Court appointed the applicant a defence lawyer, owing to his mental state, in the interests of justice. 37. On 12 July 2013 the applicant appealed against that decision, citing Article 3 of the Convention. He repeated that the non-contentious proceedings were still pending. Furthermore, he contended that the court orders and examinations undertaken had been unlawful, and he challenged the method and purpose of the expert examinations (the criminal offence had allegedly been committed in 2004, but he had only been examined in 2013). Lastly, the applicant submitted that the court orders that he be forcibly examined, and the examinations themselves, had subjected him to “mental anguish” that had reached the minimum threshold of severity, within the meaning of Article 3. The applicant’s court-appointed lawyer also lodged an appeal against the above-mentioned decision (see paragraph 36 above). 38. On 30 April 2014 the Cantonal Court found that the appeal lodged by the applicant’s court-appointed lawyer was incoherent and declined to examine it. At the same time it upheld the applicant’s appeal and quashed the decision of 8 July 2013 (see paragraph 36 above). It noted that the impugned criminal proceedings had finally been adjourned on 21 June 2011 (see paragraph 14 above), and that under the accusatory principle they could only be continued lawfully upon a prosecutor’s request (and not at the court’s own motion), pursuant to Article 17 and 409 § 2 of the Code of Criminal Procedure (see paragraph 47 below), and that the prosecutor had to supplement such a request with appropriate evidence indicating that the underlying reasons for the adjournment of the proceedings had ceased to exist. Since the prosecutor had never lodged a request for the continuation of the criminal proceedings, the conditions for the continuation had not been fulfilled. Thus it was meaningless (bespredmetno) to send the applicant once again for an expert examination and to issue another decision on the adjournment of the proceedings on the basis of such an expert examination, given that a final decision on this matter had already been delivered. The Cantonal Court did not examine the Article 3 complaint. The termination of criminal proceedings
39. On 22 April 2016 the Prosecutor issued orders for expert examinations of the applicant to be undertaken, respectively, by a psychiatrist and a psychologist. The experts, who based their opinions on the applicant’s medical documentation, concluded that the applicant’s mental health could not have improved since 2013, when an examination had concluded that he suffered from a “permanent (chronic) psychological illness” and was mentally incapacitated at the time of that examination (see paragraph 36 above). 40. On 12 October 2016 the Prosecutor lodged a request with the preliminary hearing judge for leave to withdraw the indictment; the preliminary hearing judge gave his consent on 14 October 2016. On 18 October 2016 the Municipal Court terminated the criminal proceedings against the applicant. Applicant’s written objection to the Judicial Police Department
41. On 10 June 2013 the applicant lodged a written objection with the judicial police department of the Herzegovina Neretva Canton (“the Judicial Police Department”), alleging that his rights under Article 3 of the Convention had been violated by the manner in which he had been treated by the judicial police on 6 June 2013 (see paragraphs 33 and 34 above). He alleged that he had been handcuffed in his home (in front of his ailing parents, who had experienced stress and had started to cry) – even though that had been unnecessary as it had been “impossible for him to abscond” and his “conduct [had been] unimpeachable”. 42. On the same day the head of the Judicial Police Department, with two other senior officers, held a conversation with the applicant about his objection, after which the applicant gave the statement that is noted in the record of that conversation, the relevant parts of which read as follows:
“‛On 6 June 2013, at around 3 p.m., judicial police officers unknown to me came to my home with a court order to take me to [Mostar Hospital’s] neurology clinic for examination. A conversation ensued between me and one of the unknown police officers, [but] I do not remember what he asked me, or what I answered. At that moment he only handed to me the order for my forcible escort (dovedbeni nalog). While we were talking I think he misunderstood me, upon which I was handcuffed, even though I was not offering any resistance. After that I was taken from my house and smoothly [lijepo] taken to the car. After I asked commander D. if he knew whether [my case-file] contained the confirmation on the entering and examination of [the applicant’s] flat and other spaces, which [my] father (as the owner) had refused to sign, he replied that he had not seen it, although he had insisted that it be drafted (which was not done).’
After the commander and the deputy recommended that the objection be resolved by means of a non-formal settlement (neformalnim razrješenjem), Goran Pranjić-M-Lukić stated that he agreed with that recommendation, on condition that the commander reprimand [the accused] and inform his superiors (Uprava) about the whole situation. Goran Pranjić-M-Lukić declines to make any further objection, since he is content with the explanation of the commander relating to the regularity of the conduct of the police officers in this case.”
43. On 10 June 2013 the head of the Judicial Police Department submitted information regarding the applicant’s objection to the Chief Commander of the judicial police. It comprised (i) information regarding the judicial police’s entry into the applicant’s home for the purpose of his forcible escort to the psychiatric examination, and (ii) information to the effect that his handcuffing had been performed in accordance with section 17 of the Rules on the Use of Means of Coercion (see paragraph 51 below). It also stated, inter alia:
“After the conversation with the complainant it is obvious that he submitted his objection in ignorance of the ... laws pursuant to which the judicial police act and the objection concerns a person that was several times transported for psychiatric examination. The complainant accepted the explanation regarding the conduct of the officers of the judicial police and the objection was resolved by non-formal means.”
The proceedings before the Constitutional Court
44. In the meantime, on 22 November 2010 the applicant complained to the Constitutional Court of the length of the criminal proceedings concerning him. On 28 February 2013 the Constitutional Court established that the length of the criminal proceedings had been excessive and ordered the Municipal Court to finish the proceedings urgently. In particular, the court found it unacceptable that it had taken the Municipal Court more than three years to conduct a psychiatric examination of the applicant after it had become aware that he suffered from “psychological problems” (see paragraphs 8 and 10 above), and that it had taken more than four years for it to appoint him a legal representative of his own choosing (see paragraph 7 above). 45. On 14 June 2013 the applicant lodged another constitutional appeal with the Constitutional Court, complaining under Article 3 of the Convention of his ill-treatment in the continued criminal proceedings (see paragraphs 20-38 above). The applicant argued that the Municipal Court’s repeated orders for the judicial police to transport him by force to involuntary expert examinations – in particular the one on 6 June 2013 (see paragraphs 33 and 34 above) – had violated his rights under Article 3 of the Convention. 46. On 21 July 2015 the Constitutional Court rejected the applicant’s constitutional appeal as manifestly ill-founded. It concluded that the applicant had failed to prove that he had been exposed to treatment that had reached the minimum level of severity necessary to fall within the scope of Article 3. RELEVANT LEGAL FRAMEWORK
RELEVANT DOMESTIC LAW
47. The relevant provisions of the 2003 Criminal Procedure Code (Zakon o krivičnom postupku), published in the Official Gazette of the Federation of Bosnia and Herzegovina, nos. 35/03, 37/03, 56/03, 78/04, 28/05, 55/06, 27/07, 53/07, 9/09, 12/10, 8/13 and 59/14, read as follows:
Article 17
Accusatory Principle
“Criminal proceedings may only be initiated and conducted upon the request of the prosecutor.”
Article 124
Psychiatric Expert Evaluation
“(1)  If a suspicion arises that the accountability of the suspect or the accused has been diminished, or that the suspect or the accused has committed a criminal offense due to the drug or alcohol addiction, or that he is not capable of participating in the proceedings due to a mental disturbance, expert evaluations consisting of examination of the suspect or the accused by a psychiatrist shall be ordered.
...”
Article 139
Arrest Warrant
“(1)  The court may order [the issuance of] an arrest warrant [naredba da se optuženi dovede] if a decision on detention has been issued or if the accused, having been duly summoned, has failed to appear without justification, or if the [relevant] summons could not be properly served and the circumstances obviously indicate that the accused is evading the service of a summons.
... (3)  The arrest warrant shall be executed by the judicial police.
... (5)  The person authorised to execute the arrest warrant shall hand the arrest warrant to the accused and instruct the accused to follow him. If the accused refuses, he shall be apprehended by force.”
Article 221
Mental Disorder Suffered by the Suspect or Accused in the Course of the Proceedings
“If in the course of criminal proceedings it is ascertained that since the criminal offence [in question] was committed the accused has become mentally ill, a decision shall be delivered ... adjourning [those] criminal proceedings. (Article 409).”
Article 409
Adjournment of Proceedings in the Event of a Mental Illness
“1. If the accused becomes so affected by a mental illness after the commission of a criminal offence that he or she is unable to take part in the proceedings, the Court shall, after a psychiatric forensic evaluation [is carried out], adjourn the procedure and send the accused [for treatment] to the body responsible for issues regarding social care. 2. When the health condition of the accused has improved to the extent to which he or she is capable of taking part in the procedure, the proceedings shall resume.
...”

Outcome for Article 3: violation