M.D. and others against Serbia

On September 5, 2023, the European Court of Human Rights (hereinafter: the Court) issued a decision in the caseM.D. etc. against Serbia by which he declared the application inadmissible.

The decision was made by a Board of 3 judges.

THE CIRCUMSTANCES CASES

Mr. B.Đ, the deceased husband and father of the petitioner, was in the custody of the District Prison in Novi Sad since October 21, 2009, on suspicion of having committed the crime of illicit sexual activity under Article 182, paragraph 2 of the Criminal Code.

Two days after being admitted to the District Prison, on October 23, 2009, B.Đ. was examined in the regular procedure by the prison doctor. On that occasion, he was prescribed the previous therapy for hypertension, which he took regularly. The detainee came for a second medical examination at his own request, due to problems with insomnia. He was then prescribed therapy, which he was supposed to use for the next month. At the examination B.Đ. did not indicate psychological problems.

B.Đ. committed suicide on November 4, 2009. In the early hours of the morning, the detainee with whom he shared a room found the deceased B.Đ. hanged in the bathroom, about which he immediately informed the prison officials.

After the death of B.Đ. was confirmed, the investigative judge on duty at the District Court in Novi Sad immediately conducted an investigation and ordered an autopsy of the deceased's body, as well as a toxicological analysis. On that occasion, statements were taken from the wife of the late B.Đ, her lawyer, the detainee with whom B.Đ. shared a room (in the Albanian language) with three prison officers. The diary of the deceased B.Đ. which was found at the scene is included in the case files.

Wife of the late B.Đ. and her lawyer stated that they did not notice any changes in the behavior of B.Đ. which would indicate a risk of suicide. The autopsy confirmed that death occurred by hanging, while other injuries on the deceased's body were not determined. A toxicology analysis showed the absence of drugs, medication or alcohol in his blood.

On May 19, 2010, the Higher Public Prosecutor's Office in Novi Sad decided that there are no grounds for criminal prosecution against any person for a criminal offense that is being prosecuted ex officio.

On June 16, 2010, the applicants filed a lawsuit against the Republic of Serbia for damages due to the death of a close person. In the lawsuit, they pointed out that the death of their husband and father occurred due to inadequate supervision by the employees of the District Prison in Novi Sad during his stay in detention..

The basic court in Novi Sad, after the presentation of evidence by hearing the applicants, their lawyer, police officers and the neuropsychiatry expert who analyzed the diary of the deceased B.Đ, on April 12, 2013, issued a verdict rejecting the applicant's claim in its entirety. In the explanation, it was stated that the late B.Đ. did not suffer from depression or other mental disorder that would require psychiatric treatment or indicate suicidal intentions.

On April 9, 2014, the Court of Appeal in Novi Sad confirmed the first-instance verdict. In the explanation, this court stated that "adequate supervision" of a prisoner does not mean permanent supervision, especially in circumstances where there are no indications that the detainee has suicidal intentions.

The applicants filed a constitutional complaint with the Constitutional Court in which they complained about the outcome of the civil proceedings, emphasizing the violation of the right to a fair trial from Article 32, paragraph 1 of the Constitution. The issue of conducting an effective investigation was not raised.

By decision of July 25, 2016, the Constitutional Court rejected the constitutional appeal of the applicants with the explanation that the court decisions that the applicants complained about were based on a constitutionally acceptable and non-arbitrary interpretation of the applicable law.

COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT

In the application, the applicants pointed out various violations of the rights guaranteed by the Convention, but the Court decided to submit their application for a response to the Republic of Serbia in connection with a possible violation of the right to life from Article 2 of the Convention.

DECISION OF THE COURT

The court did not consider it necessary to separately consider the complaint of the Republic of Serbia regarding the abuse of the right to petition by the applicant due to the presentation of untrue information (specifically, that an autopsy of B.Đ. was not performed) as well as the complaint of failure to exhaust domestic effective legal remedies, because the petition declared inadmissible for other reasons.

Pointing to its extensive practice, the Court pointed out that, based on Article 2 of the Convention, there is a positive obligation of the state to take measures to protect a person deprived of his liberty from self-harm, including suicide, in a situation where the state authorities knew or should have known that there is a real and imminent danger of such an act.

In order to determine whether the state authorities had or should have had knowledge of the risk of self-harm, a number of circumstances are assessed, such as a previous history of mental problems, the severity of the mental state, previous suicide attempts, the presence of suicidal thoughts and threats of suicide, as well as a state of mental and physical distraction.

In cases where domestic proceedings have been conducted on the basis of highlighted violations of the Convention, as a general rule it is not up to the Court to replace domestic authorities in determining the factual situation. The court is not bound by the factual situation established in the domestic proceedings, but convincing reasons are needed that would lead it to depart from it.

In the specific case, the Court found that the late B.Đ. he had no history of mental health disorders, that his mental state did not appear to be serious, and that he did not threaten to commit suicide or show suicidal thoughts and intentions, nor any signs of physical or mental disorder. None of the witnesses heard noticed any changes in his behavior. The late B.Đ. was examined twice by the prison doctor, the first time when he was admitted to the detention unit, the second time after three days, when he received therapy for hypertension and insomnia. Based on all the evidence presented before the domestic court, there were no grounds for the prison officials to suspect that in the case of B.Đ. there is a risk of suicide.

Bearing in mind these circumstances, the Court concluded that in the specific case there are no reasons for deviating from the conclusion regarding the facts reached by the domestic court, namely that the competent authorities did not know and did not have to know that there was a real and immediate danger of suicide B.Đ. Therefore, the Court decided that it was not necessary to consider whether the domestic authorities had taken measures to prevent his suicide, which could reasonably have been expected to have been taken, had they been aware of such a danger.

The application was rejected as obviously unfounded in the part that refers to the positive obligation of the state to take measures to prevent the suicide of persons deprived of their liberty, in accordance with Article 2 of the Convention.

As the procedural aspect of Article 2 of the Convention, which refers to the implementation of an effective investigation by competent authorities, is not highlighted within the domestic legal system, the Court rejected the petition in this part due to non-exhaustion of domestic legal remedies.