THIRD SECTION
CASE OF BALKASI AND OTHERS v. ALBANIA
(Application no. 14800/18)
 
 
 
 
JUDGMENT
 
STRASBOURG
14 June 2022
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Balkasi and Others v. Albania,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
 Andreas Zünd, President,
 Darian Pavli,
 Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 14800/18) against the Republic of Albania lodged with the Court on 21 March 2018 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Albanian nationals, as indicated in the appended table (“the applicants”);
the decision to give notice to the Albanian Government (“the Government”) of the complaints under Articles 3, 8 and 14 of the Convention and to declare inadmissible the remainder of the application;
the observations submitted by the respondent Government and the observations in reply submitted by the applicants;
the comments submitted by the European Roma Rights Centre (“the ERRC”), which were granted leave to intervene by the President of the Section;
Having deliberated in private on 24 May 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the lack of an effective criminal investigation into the second, third and fifth applicants’ credible assertions that they had been ill-treated by police officers. THE FACTS
2. The applicants are members of a family of Roma ethnic origin and their address in the application form is given as being in Tirana. Their names and years of birth are set out in the appendix. The applicants were represented by Ms A. Metalla, a lawyer practising in Tirana. 3. The Government were represented by their former Agents, Ms A. Hiçka and Mr A. Metani and, subsequently, by Mr O. Moçka of the State Advocate’s Office. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The authorities’ account of the incident oN 13 December 2013
5. On 13 December 2013 three police officers went to the applicants’ former home village in Fier to search for an individual who had fled justice. 6. The officers were wearing police vests over their plain clothes. As soon as they approached the fugitive, he started running away. After a brief pursuit, the officers were able to capture the fugitive in the applicants’ garden. While he was pinned down, the fugitive called for help and a group of approximately fifty persons, including the applicants, congregated. The officers identified themselves as police officers and showed their police identity cards. 7. The group, of which the applicants were the most active members, hit the officers and directed them to leave the village as they would not be allowed to arrest the fugitive. The officers were therefore forced to leave without arresting the fugitive. On the same evening they produced an operation report (raport shërbimi) of the events. 8. On 14 December 2014, following a criminal complaint lodged by two of the officers in question, a judicial police officer decided that the wounds of the police officers would be examined and forensic medical reports drawn up. The applicants’ account of the incident oN 13 December 2013
9. On 13 December 2013, at around 7 p.m., the applicants and their family members, with the exception of the fourth applicant, were in their home when four individuals in plain clothes, wearing masks and armed with pistols and wooden bats unexpectedly broke into their garden. When the second applicant and his wife asked those persons to identify themselves, they pushed the second applicant’s wife away and hit the second applicant with their fists and the barrels of their pistols. The second applicant collapsed and started bleeding from his lower lip. 10. The third and fifth applicants intervened to defend the second applicant, their father, and a tumultuous confrontation ensued. The fifth applicant was hit with a wooden bat. One of the applicants, who was not identified, was pushed against a car parked nearby which caused the car’s glass to break. The wife of the second applicant, the wife of another family member and the third applicant were also injured. 11. When a number of neighbours gathered, three of the armed individuals ran away whereas the fourth individual removed the mask, identified himself as a police officer and directed everyone to stay back. Before leaving the site, the officer stated that the second applicant would be imprisoned for having obstructed a police officer if he filed a criminal complaint against him. 12. The first applicant suffered from mental health problems which predated the incident and, although he was at home during the event, he did not see the police officers come in or engage in any way with them. At the time of the incident the fourth applicant was in the vicinity and he came home only after the officers had left. 13. The third applicant called the police and the operator advised him that he needed to call the neighbourhood’s police officer (të plotfuqishmin e lagjes), which he did. Following the advice of the neighbourhood’s officer, one of the applicants called the People’s Advocate office, which is an institution in charge of upholding the rights of individuals that face unlawful acts from the public administration. 14. On 14 December 2013 several members of the applicants’ family, it is unclear who exactly, went to the hospital in order to obtain medical reports on the wounds they had suffered in the confrontation. The medical personnel asked them to file criminal complaints before carrying out the examinations. Consequently, the applicants went to the local police station. 15. While in the police station, the officers did not take the members of the applicants’ family seriously and did not record their complaints. At some point one of the officers who had taken part in the police operation asked them not to lodge a complaint and suggested that they find a friendly settlement. The officer also apologised for the behaviour of the police. Consequently, they did not lodge a criminal complaint. Administrative complaint before the People’s AdvocateApplicants’ statements before the People’s Advocate

16. On 15 December 2013 three officers from the People’s Advocate office met with the second and third applicants as well as a number of their family members, heard their complaints and took written statements in respect of the events of 13 December 2013. 17. The second and third applicants as well as their family members described the events, essentially, as set out in paragraphs 9-15 above. 18. The third applicant stated that he was frightened as, on 14 December 2013, some of his cousins had met one of the police officers involved in the event who had reportedly stated that he would “personally deal with the applicants’ family” (“me atë familje do kem punë unë”). The third applicant asked that the State intervene to resolve the matter as his family had no experience in dealing with police forces. In an additional statement of 17 January 2014 before the People’s Advocate, the third applicant stated that as a result of the pressure exercised by one of the police officers who had been involved in the event, his father - that is the second applicant - had not filed a criminal complaint. Administrative inquiry by the People’s Advocate
19. On 26 December 2013 the People’s Advocate filed a request for information with the local police authorities raising the issues of the police officers’ failure to identify themselves in the operation of 13 December 2013, the violence used against the second applicant and his family, the threats made to dissuade him from filing a criminal complaint and the subsequent failure to register his criminal complaint. 20. In a response of 6 January 2014, the police authorities stated that they went to the village to arrest an individual who had absconded. They also stated that no one had been hit by the police officers and that the second applicant and his family members had obstructed the operation. 21. On 22 January 2014 the People’s Advocate delivered its findings on the matter to the police authorities in the form of a recommendation. The People’s Advocate described the parties’ version of events and concluded that the police authorities had failed to comply with their obligations in a number of respects. Firstly, on 13 December 2013 the police officers were not wearing uniform or any other proof of identity as required by domestic law. Secondly, they had used unnecessary force towards the second applicant and his family. Thirdly, contrary to their obligations, the authorities had produced medical expert reports only on the wounds of the police officers and had failed to register the criminal complaints of the second applicant and his family members. Lastly, the police authorities had also failed to inform the relevant prosecutor’s office about the incident. 22. In view of the above findings, the People’s Advocate recommended that the police authorities carry out an enquiry concerning the events of 13 December 2013 in order to determine the responsibility of the police officers involved and that the necessary measures be taken for the correct implementation of applicable laws in future. The People’s Advocate also directed the police authorities to inform his office of any measures taken as a follow-up to the recommendations. 23. It appears that no further action was taken by the police in this regard. Criminal proceedings against the applicants
24. On 16 April 2014 the prosecutor’s office filed a bill of indictment against the applicants in respect of the events of 13 December 2013 accusing them of having obstructed the work of police officers. 25. In their defence the applicants restated their version of the events as described in paragraphs 9-15 above and submitted the recommendation issued by the People’s Advocate on 22 January 2014 (see paragraph 21 above). 26. They also complained that the second, third and fifth applicants, amongst others, had been injured during the police operation and the authorities had failed to open an investigation into their claims. The applicants cited several judgments of this Court concerning Article 3 of the Convention in support of their arguments. 27. On 30 July 2014 the Fier District Court found the applicants guilty as charged and imposed sentences of between two- and four-months’ imprisonment. The court did not address the applicant’s claims that they had been ill-treated. The court reasoned that the officers’ statements and the medical reports submitted by them supported the charge that the applicants had obstructed the police operation. 28. On 30 April 2015 the Vlora Court of Appeal rejected the applicants’ appeal but decided to suspend the execution of the prison sentences. 29. Upon a cassation appeal in which the applicants reiterated the above arguments, on 19 May 2016 the Supreme Court, sitting in camera, rejected their appeal in a de plano decision. The applicants submitted that they had gained knowledge of the Supreme Court’s decision on 24 May 2017, and on 29 May 2017 they lodged a complaint with the Constitutional Court raising essentially the same arguments (see paragraph 26 above). 30. On 29 September 2017 the Constitutional Court rejected the applicants’ complaints as belated. It noted that the Supreme Court’s decision had been taken on 19 May 2016 and no appeal had been submitted within the four-month statutory time-limit. THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
31. The applicants complained that the treatment to which they had been subjected by the police officers on 13 December 2013 and the authorities’ subsequent failure to investigate their allegations of ill-treatment violated their rights under Article 3 of the Convention which provides:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
AdmissibilityThe parties’ submissions

32. The Government submitted that the applicants had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. They had not started any domestic proceedings to complain about the violation of their rights under Articles 3 of the Convention. In particular, the applicants could have filed a criminal complaint with the prosecutor’s office, an administrative complaint with the Ministry of the Interior’s Internal Control Service (Shërbimi i Kontrollit të Brendshëm) or a civil action for damages. 33. Moreover, the Government argued that the application should be declared inadmissible under Article 35 § 3 (a) since the right of individual petition had been abused. They maintained that the application was clearly unsubstantiated and the applicants had distorted the facts since they had not been subjected to treatment contrary to Article 3 of the Convention. Instead, they had administered such treatment to the police officers. 34. The applicants contested the Government’s arguments. They referred to their submissions before the domestic courts in the criminal proceedings instituted against them and argued that that they had raised their complaints before the authorities. They further stressed that they had submitted their complaints to the People’s Advocate. They argued that a criminal investigation should have started ex officio once the authorities had gained knowledge of their allegations of ill-treatment during the police operation.

Outcome for Article 3: violation