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BARTA v. HUNGARY - 26137/04 [2007] ECHR 263 (10 April 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/263.html
Cite as:
[2007] ECHR 263
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SECOND
SECTION
CASE OF BARTA v. HUNGARY
(Application
no. 26137/04)
JUDGMENT
STRASBOURG
10 April
2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Barta v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens,
President,
Mr A.B. Baka,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Ms D. Jočienė,
Mr D.
Popović, judges,
and Mrs F. Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 20 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 26137/04) against the
Republic of Hungary lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a British national, Ms Sophie
Barta (“the applicant”), on 25 May 2004.
The
applicant was represented by Mr. A. Kádár, a lawyer
practising in Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Justice and Law Enforcement.
The
applicant alleged that she had been ill-treated by the police and
that the investigation into her complaint of ill-treatment was
ineffective, in breach of Article 3 of the Convention.
On 11 May 2006 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
On
26 February 2007 the Government of the United Kingdom declared that
they would not exercise their right under Article 36 § 1 of the
Convention and Rule 44 of the Rules of Court to intervene in the
proceedings.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1965 and lives in London.
A. The circumstances of the incident and the criminal
proceedings conducted against the applicant
At
the material time, the applicant and her mother, Ms E. Rhodes, lived
in Hungary. They ran a shelter for dogs and cats (Csizmás
Kandúr Állatotthon és Alapítvány)
in the village of Bőny.
Apparently
in the context of an alleged nuisance caused by the animals, in
October 2002 the Győr Police Department initiated an
investigation for disorderly conduct (garázdaság)
against unknown perpetrators. The Police Department was of the view
that there was a
well-grounded suspicion against the applicant
and her mother.
Not
knowing their exact names or address and thus unable to summon them,
on 15 October 2002 the Police Department commissioned the locally
competent police officer (bőnyi körzeti megbízott),
P.Z.H., to establish data about the applicant and her mother and to
escort them to the Győr Police Department. Because of the office
he held in the village, P.Z.H. had previously been introduced to the
applicant and her mother.
At
7.30 a.m. on 16 October 2002, P.Z.H., who hardly spoke any English,
appeared at the gate of the shelter. He rang the bell, and the
applicant’s mother received him. Over the closed gate, P.Z.H.
told her in Hungarian, without producing a written summons, that the
police were conducting a criminal investigation against her and that
she was supposed to go with him.
The
applicant’s mother – who is of a British origin but,
unlike the applicant, speaks Hungarian – refused to comply with
P.Z.H.’s instruction. Following a brief dispute, she turned
around and headed for the house across the yard and called her dogs
to the gate of the shelter. Observing her reluctant behaviour, P.Z.H.
pushed the gate open and entered the garden.
Since
P.Z.H. had heard the applicant’s mother order the dogs, he drew
his truncheon in order to keep them at bay.
The
applicant’s mother stepped towards P.Z.H., grabbed his right
arm and the truncheon, started to shake him and tried to push him out
of the garden through the open gate. Since her attempts failed, the
applicant’s mother told P.Z.H. that she would get dressed,
collect her documents and go with him. However, having entered the
house, she locked the entrance door and refused to open it despite
the request of the police officer.
The
applicant was in the house. She heard the argument and saw part of
the struggle from the window of the upper floor. She grabbed a camera
and took pictures, using a flash, of P.Z.H. from the window. She then
hurried down to the ground floor.
From
this point onwards, the Government’s and the applicant’s
versions of events differ.
The
Government stated that the applicant stepped out of the house through
a side door and continued to take pictures; meanwhile her mother was
abusing the police officer verbally. P.Z.H. requested the applicant
to show him her passport. The applicant, instead of complying
with the order, hit his shoulder and arm three times with the camera.
Subsequently,
she stepped back towards the house and P.Z.H.
followed her. They both entered the house. Once inside, P.Z.H. tried
to take the camera out of the applicant’s hand but he failed.
Meanwhile, the applicant locked the door from the inside and sat on
the key. The police officer attempted to get the key by immobilising
the applicant’s arm when her mother appeared, to whom the
applicant gave the key.
The
applicant stated that P.Z.H. was banging on the front door, demanding
to be let in. The applicant slightly opened the door and took a
picture of P.Z.H. Perceiving the flash, the police officer started
yelling at her and, with his truncheon in his hand, shoved the door
with his shoulder. The applicant, standing right behind the door,
fell against the wall. The door handle hit her stomach and the
door-frame hit her shoulder. While she doubled up with pain, P.Z.H.
repeatedly hit her with the truncheon on the neck, back and
shoulders. The applicant dropped the camera. The police officer only
stopped beating her when – hearing the applicant’s scream
– her mother ran into the room.
P.Z.H.
asked for reinforcements from police headquarters. With the help of
two other officers, P.Z.H. took the applicant and her mother to the
Petz Aladár Hospital in Győr where all the three
parties were examined. The Hospital prepared a medical report on
their injuries, which stated that the applicant had a contusion on
the back of her right hand, a distension of the right shoulder and
abrasions on her back.
P.Z.H’s
left shoulder and collar bone were sensitive, and part of the middle
finger nail of his left hand was torn off (0.5-centimetre). He also
had a 4-centimetre abrasion on the right hand.
The
applicant and her mother were then taken to the Police Department
where both of them were heard, as was P.Z.H. as a witness against
them. On 17 October 2002 they were both charged with violence against
an official (hivatalos személy elleni erőszak).
On
15 January 2003 the prosecutor in charge of the case made an official
note, stating that the applicant’s mother had informed him of a
third individual, a Romanian national, who had been inside the
applicant’s house at the time of the incident and had seen the
events from the roof window. She provided this person’s
Romanian telephone number and the name of the company employing him
in Hungary. The Prosecutor’s Office made no attempt to find
this person, supposing that he was an illegal worker who had by that
time left Hungary.
In
the ensuing proceedings, the Prosecutor’s Office heard the
applicant as a defendant and P.Z.H. as a witness. It obtained the
opinion of a forensic medical expert. Although the applicant
requested the examination of the injuries of all the parties and
their possible causes, this opinion, prepared by Dr Zs.T. on 10 June
2003, only concerned the injuries of the police officer. According to
its conclusions, P.Z.H.’s injuries had probably been caused as
described by him, i.e. the applicant had hit him on the shoulder with
the camera and then they had struggled for the door key.
The
expert stated that the applicant’s version concerning the
origin of the officer’s injuries was less plausible though not
impossible.
On
16 May 2003 the original criminal proceedings conducted against the
applicant and her mother on charges of disorderly conduct were
terminated in the absence of any evidence of a criminal offence.
On
25 July 2003 the Prosecutor’s Office submitted a bill of
indictment to the Győr District Court, charging them with
violence against an official. After four hearings, the District Court
acquitted them on
13 June 2005, giving the following reasoning:
“In view of the consistent testimonies of the
defendants, the inconclusive character of the medical expert
opinions, and the testimony given by Officer P.Z.H. which contained
several contradictions, the court did not find it proven with the
requisite certainty that the defendants had caused light bodily
injury to Officer P.Z.H.”
On
the prosecutor’s appeal, the Győr-Moson-Sopron County
Regional Court quashed the first-instance judgment and remitted the
case to the District Court. Hearings took place on 19 July and 8
September 2006. On the latter date, P.Z.H.’s commander was
heard as a witness and was asked why he had not investigated how the
applicant had suffered an injury to her back. He gave the following
answer:
“What can I examine on the basis of a medical
report? That has been written by a doctor. A medical report was
prepared; the lady said that she had been injured.
I cannot
conduct any examination with regard to this.”
The
case is still pending at the first-instance.
B. Proceedings pursuant to the applicant’s
complaint
On
14 November 2002 the applicant and her mother expressed their
intention to bring charges against P.Z.H. Their criminal complaint
was forwarded to the Győr-Moson-Sopron County Public
Prosecutor’s Office under the same reference number as the one
which concerned the charges against them.
On
19 June 2003 the Prosecutor’s Office closed the investigation
concerning the applicant’s complaint against P.Z.H., in the
absence of any evidence of a criminal offence. The Prosecutor’s
Office relied solely on the evidence which had been produced in the
parallel criminal proceedings conducted against the applicant and her
mother. These documents
(the minutes of interrogations, the
medical files and the findings of the enquiry conducted by P.Z.H.’s
superior) were submitted to the court dealing with the criminal case
conducted against the applicant and her mother.
The
decision of the Prosecutor’s Office contained the following
conclusions:
“In the course of the investigation, it has been
established that when Officer P.Z.H., acting on orders and wearing
uniform, appeared at the house of Eva Rhodes and her daughter, he
proceeded in accordance with Act no. 34 of 1994 on the Police, and
Decree no. 3 of 1995 of the Ministry of the Interior on the Rules of
Service of the Police. It was Eva Rhodes and her daughter [the
applicant] who refused to obey the police measure; they did not
comply with the officer’s demand, obstructed him in performing
his duties and caused him bodily injuries. ... Since, according to
the findings of fact of the investigation [against the applicant and
her mother] and to the enquiry carried out by the officer’s
superior, the actions of the officer as well as the use of coercive
measures were lawful, no ‘mistreatment in official proceedings’
can be established within the meaning of section 226 of the Criminal
Code; therefore, we closed the investigation in the absence of any
crime.”
On
13 August 2003 the applicant lodged a complaint with the
Chief
Prosecutor’s Office against that decision. She complained that
there had been no independent investigation in the case, particularly
as the investigation authorities had not appointed a forensic medical
expert in order to establish how her injuries had been caused.
Moreover, the applicant stressed that the police officer’s
conduct had been unlawful in the absence of a written summons and
that the decision of the Prosecutor’s Office was illogical.
On
11 September 2003 the Chief Prosecutor’s Office dismissed the
applicant’s complaint. After summarising the factual basis of
the case, it gave the following reasoning:
“During the review of the documents of the
investigation, ... [it] established that the police action did not
give rise to the well-founded suspicion [of a crime]; namely, that
the injuries of [the applicant] or those of Eva Rhodes had been
caused by intentional ill-treatment exerted by the proceeding
officer. Apart from the victims’ allegations, there was no
evidence proving that the police officer, in the course of his lawful
action, exceeded the indispensable measure of force which was
necessary to defy the threat and aggression directed against him and
to overcome the resistance to a lawful police measure. In view of the
fact that the complaint lodged against the decision closing the
investigation does not contain any data to strengthen a well-founded
suspicion of a crime committed by a police officer, I saw no reason
to quash the impugned decision or to continue the proceedings.”
Meanwhile,
the applicant, independently of the ongoing criminal proceedings,
requested another forensic medical expert to prepare an opinion
concerning the possible causes of her injuries and those of the
police officer.
The
opinion of Dr J.H., dated 15 October 2003, concluded that the
applicant’s version of the events was a plausible explanation
for her injuries. The expert stated in particular that the injuries
on the applicant’s shoulder and back might have originated
either from punches by a hard object (like a truncheon) or, with
equal likelihood, from being repeatedly banged against a wall.
Moreover, he was of the view that the police officer’s version
did not explain the injuries. Concerning the injuries of P.Z.H, the
expert established that they could have been caused as he described.
The expert added that the injury to the officer’s shoulder
could also be explained by the applicant’s version.
On
20 October 2003 the applicant, acting as substitute private
prosecutor (pótmagánvádló), lodged
a bill of indictment with the
Győr-Moson-Sopron County
Regional Court against P.Z.H. for mistreatment in official
proceedings and other offences. In the bill of indictment, she
complained that, despite her repeated request, P.Z.H. had never been
heard as a suspect, the investigation authorities had never obtained
an opinion of a forensic medical expert concerning the possible
causes of her injuries and, therefore, had not produced a plausible
explanation for them. The applicant attached the opinion of Dr J.H.
to the bill of indictment.
On
3 December 2003 the Regional Court dismissed the indictment. Without
giving any detailed arguments and relying exclusively on the case
file, it held that there was no reason to depart from the decisions
of the prosecution authorities.
II. RELEVANT DOMESTIC LAW
35. Act no. 4 of 1959 on the Civil Code
Section 349
“(1) Liability for damage caused by the State
administration shall only be established if damage could not be
prevented by means of ordinary legal remedies or if the person
concerned has resorted to ordinary legal remedies appropriate for
preventing damage. ...
(3) These rules shall also apply to liability for damage
caused by the courts or the prosecution authorities, unless otherwise
provided by law.”
36. Act no. 1 of 1973 on the (Old) Code of Criminal
Procedure
(as in force at the time of the incident)
Section 100 – Bringing-in (elővezetés)
“(1) Any person in respect of whom there is an
order to be brought in, must be presented before the authority, if
necessary by the use of a coercive measure.”
Section 112 – The summons and the notification
“(1) The authority – unless the law
prescribes otherwise – shall summon any person whose presence
at a procedural act is mandatory and shall notify those whose
presence is not mandatory but allowed by the law.
(2) A summons or a notification is normally done in
writing. ...
(3) If necessary, a summons or a notification may be
done in a short way
(for example, by telephone).”
Section 113
“(1) If a defendant, legal counsel, a witness or
an expert does not [comply with] a summons issued under section 112
..., the authority may
a) order the defendant to be brought in, ...”
37. Act no. 19 of 1998 on the (New) Code of Criminal
Procedure
(in force since 1 July 2003)
Section 195
“(1) Any person who is concerned by a decision of
the prosecutor or the investigation authority may lodge a complaint
against the decision within eight days from its delivery. ...
(5) ... Subject to the exceptions provided in paragraph
6, no further remedy lies against a decision determining a
complaint.”
Section 199
“ ... (2) After the dismissal of his [or her]
complaint, a victim may act as a substitute private prosecutor
(pótmagánvádló) if ...
b) the investigation was terminated under section 190 §
(1) (a)-(d) or (f)
[the absence of a serious suspicion of a
crime, etc.].”
Section 229
“(1) If the superior public prosecutor dismissed a
victim’s complaint lodged against the dismissal of a criminal
report or against the discontinuation of an investigation and it is
possible to lodge a substitute private bill of indictment under
section 199, ... the victim may act as a substitute public prosecutor
within thirty days from the date of the delivery of the decision.”
Section 231
“(1) The court shall accept a private bill of
indictment, if there is no reason to declare it inadmissible.
(2) The court dismisses the private bill of indictment
if ...
(d) its factual or legal background is evidently
missing.”
Section 233
“(1) No appeal lies against a decision dismissing
a private bill of indictment.”
38. Act no. 34 of 1994 on the Police
Section 15 – The principle of proportionality
“(1) A police measure may not cause such
disadvantage as is obviously disproportionate to the legitimate aim
pursued by the measure. ...”
Section 33 – Capture and arrest
“... (2) For the sake of public safety, the police
may put before the authority or the competent body any person who ...
(b) may be suspected of having committed a crime. ...
(4) An arrested person must be informed orally or in
writing about the reasons for his [or her] arrest ... .
Section 39 – Police action in private houses
and other non-public places
“(1) The police may not enter private houses
without permission or a warrant unless it is necessary for...
(b) the capture and arrest of a perpetrator or a suspect
of a crime, ...
(f) the implementation of an order to bring someone in,
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that she had been ill-treated by the police, and
that the investigations into her related complaints had been
inadequate, in breach of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The
Government argued that the application should be rejected for
non-exhaustion of domestic remedies, pursuant to Article 35 § 1
of the Convention, which provides as relevant:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law ... .”
The
Government contended that the applicant should have lodged an
official liability action under section 349 of the Civil Code, this
provision also being applicable to damages caused by the prosecution
authorities. This remedy was available to the applicant both in
respect of the alleged ill-treatment and the alleged omission of
investigation. Had she availed herself of this remedy she could have
been awarded compensation, which essentially would have afforded the
same redress as that available from the Court. An action in
compensation may be deemed a sufficient remedy where compensation is
the only means of redressing the damage suffered.
The
Government were aware that, according to the Court’s case-law,
if more than one legal remedy existed under the domestic law, the
applicant had the right to choose which one to exhaust. However, in
the present case, the very different nature of the available remedies
should require the applicant to have exhausted both the criminal and
the civil legal avenues.
In the criminal proceedings instituted
by her against the police officer, the defendant’s procedural
and Convention rights, such as the presumption of innocence, had to
be respected in that – although it is the duty of the State to
investigate the ill-treatment allegedly committed by the police –
facts not proven beyond doubt could not serve as a basis for the
police officer’s conviction. Consequently, only civil
proceedings instituted against the State could provide the
Contracting Party with an opportunity to put right the violations
allegedly committed by it.
The
applicant maintained that civil compensation could not be deemed
fully to rectify a breach of Article 3. In addition, she drew
attention to the fact that in previous cases where the Court had
found Hungary to have violated Article 3, the Government did not
argue nor did the Court find that, by not attempting to obtain
redress in a civil lawsuit, the applicants had failed to exhaust
domestic remedies.
The
applicant also submitted that in the similar case of Balogh v.
Hungary (no. 47940/99, 20 July 2004), the Government had argued
that the applicant’s failure to exhaust domestic remedies by
not having availed himself of an ordinary remedy – a complaint
under section 148 of the (Old) Code of Criminal Procedure –
against the discontinuation of the criminal proceedings. This
preliminary objection was dismissed by the Court. In any event, in
the present case the applicant lodged such a complaint.
The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants to use first the remedies that are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged.
The existence of the remedies
must be sufficiently certain, in practice as well as in theory,
failing which they will lack the requisite accessibility and
effectiveness. However, Article 35 § 1 does not require that
recourse should be had to remedies which are inadequate or
ineffective (see Aksoy v. Turkey, judgment of 18 December
1996, Reports of Judgments and Decisions 1996 VI, §§
51-52).
The
Court notes that Hungarian law provides civil remedies against
illegal acts attributable to the State or its agents. However, it
considers that these remedies cannot be regarded as sufficient for a
Contracting State’s obligations under Article 3 of the
Convention in cases like the present, as they are aimed at awarding
damages rather than identifying and punishing those responsible (see
Assenov and Others v. Bulgaria, judgment of
28
October 1998, Reports 1998 VIII, p. 3286, § 85).
The
Court observes that the applicant complained to the public prosecutor
of the treatment to which she claimed to have been subjected.
Furthermore, acting as substitute private prosecutor, she lodged with
a court a bill of indictment against P.Z.H. for mistreatment in
official proceedings. In the Court’s view, these remedies may
have resulted in the identification and the punishment those
responsible. The applicant must therefore be regarded as having
brought the substance of her complaint to the notice of the national
authorities and as having sought redress through the national
channels for her complaint. The Court reiterates in this connection
that, in relation to treatment contrary to Article 3 of the
Convention, raising criminal charges against the officials concerned
or, in the alternative, filing a civil action for compensation are,
in Hungary, generally effective remedies to be exhausted under
Article 35 § 1 of the Convention
(see Bethlen v. Hungary,
no. 26692/95, Commission decision of
10 April 1997, unpublished).
It
follows that the Government’s preliminary objection must be
dismissed. Furthermore, the Court notes that the complaint is not
manifestly ill-founded, within the meaning of Article 35 § 3
of the Convention, and that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The applicant’s arguments
The
applicant submitted that her injuries were serious enough to bring
the case within the scope of Article 3 of the Convention, with
special regard to her sex, the unlawful nature of the policeman’s
action and that she, being a foreigner, did not speak Hungarian. She
had, therefore, not understood what was happening. Concerning the
mental effects, she submitted that she had felt deeply humiliated and
had experienced considerable psychological trauma, which had resulted
in her decision to leave Hungary.
The
applicant pointed out that the policeman’s unlawful behaviour
should also be measured against the minor offence with which she had
originally been charged and the negligible threat posed by her to the
officer.
She
also submitted that it could reasonably be established that the
incident had taken place as she had described it, and that her
injuries were caused by the unlawful use of force by the police
officer, while P.Z.H.’s version of the events was not logical.
Moreover,
in the applicant’s view, the police officer’s version did
not explain some of her injuries, namely the distension of the right
shoulder and several abrasions on the back. In contrast, her version
was supported by the opinion of the forensic medical expert Dr J.H.
Nor did the other expert opinion exclude that the incident could have
taken place as she had described it.
Concerning
the effectiveness of the investigation, the applicant submitted that
serious doubts arose as to whether there had been any proper
investigation at all. The Public Prosecutor’s Office’s
decision terminating the investigation into the charge of
ill-treatment laid by the applicant bore the same reference number as
the case concerning the criminal charges against her and her mother.
Therefore the two investigations were included in the same file.
However,
there were no documents in the case file showing that a procedure
concerning the alleged ill-treatment was in progress. The first
document containing such a reference was the terminating decision.
Moreover, P.Z.H. was never formally interrogated as a suspect, let
alone charged; he was only heard as a witness in the course of the
proceedings against the applicant.
The
applicant pointed out that the Prosecutor’s Office, despite her
repeated requests, only obtained a medical expert opinion concerning
the possible causes of the police officer’s injuries. Although
Dr. J.H.’s opinion did not exclude that the applicant’s
injuries had been sustained as she described, and concluded that the
police officer’s version was implausible, the terminating
decision was nevertheless based entirely on P.Z.H.’s version,
for which no reasons were given.
The
applicant’s complaint against this decision as well as her
private bill of indictment were likewise dismissed without any
reasoning, an evaluation of Dr. J.H.’s opinion or reflections
on any of her arguments.
The
applicant submitted that the public prosecutor had ignored some
evidence potentially supporting her version, by failing to attempt to
locate and hear as a key witness the person who had been present in
the house of the applicant’s mother during the incident.
Moreover, the prosecution failed to seize the camera with which she
was reported to have hit P.Z.H. or to appoint an expert to determine
how it had been damaged.
2. The Government’s arguments
The
Government submitted that, according to the findings of fact
established in the investigation, the applicant’s allegations
were not supported beyond reasonable doubt by medical expert opinion.
The latter did not exclude that the events had taken place as the
police officer described them.
The
Government pointed out that the impugned struggle occurred because of
the resistance of the applicant and her mother to a lawful police
measure. They were of the view that the applicant’s injuries
were not serious, nor did they amount to inhuman or degrading
treatment. Therefore they did not attain the minimum level of
severity envisaged by the Court’s case-law for Article 3 to
come into play.
As
to the alleged lack of investigation, the Government submitted that
the domestic authorities and courts examined the case thoroughly and
weighed all the evidence put before them, namely medical reports,
documentary evidence, and the testimonies of the parties and the
commander of P.Z.H. They drew attention to the principle established
by the Court’s case-law, according to which the assessment of
evidence is primarily a matter for the national authorities.
3. The Court’s assessment
Article
3, as the Court has observed on many occasions, enshrines one of the
fundamental values of a democratic society. Even in the most
difficult of circumstances, such as the fight against terrorism or
crime, the Convention prohibits in absolute terms torture or inhuman
or degrading treatment or punishment. Unlike most of the substantive
clauses of the Convention and its Protocols, Article 3 makes no
provision for exceptions and no derogation from it is permissible
under Article 15 even in the event of a public emergency threatening
the life of the nation.
The
Court recalls that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The
assessment of this minimum is relative: it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and/or mental effects and, in some cases, the sex, age and
state of health of the victim. In respect of a person deprived of his
or her liberty, recourse to physical force which has not been made
strictly necessary by that person’s own conduct diminishes
human dignity and is in principle an infringement of the right set
forth in Article 3 (see Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998-VIII, p. 3288, § §§ 93-94).
In
the instant case, the Court considers that the injuries suffered by
the applicant, namely a contusion on the back of her right hand, a
distension of the right shoulder and abrasions on her back, were
sufficiently serious to amount to ill-treatment within the scope of
Article 3 (see, for example, A. v. the United Kingdom,
judgment of 23 September 1998, Reports 1998-VI,
p. 2699, § 21). It remains to be considered whether
the State should be held responsible under Article 3 for these
injuries.
a. Alleged ill-treatment by the police
The
Court observes that the parties have not disputed that the impugned
injuries were caused by the police officer during the applicant’s
arrest. It is also uncontested that the police officer used force in
order to carry out the arrest which the applicant and her mother
resisted. However, the parties disagree as to whether the police
officer’s action was lawful.
It
must be noted that there was a well-grounded suspicion that the
applicant and her mother had committed an offence, and the Győr
Police Department intended to question them. However, since their
exact names and address were unknown to the police, who were thus
unable to summon them in writing, the Police Department decided to
summon them orally by sending the locally competent police officer to
their home. This is permissible under section 112(3) of the Code
of Criminal Procedure
(see paragraph 36 above).
The
Court observes that it is not contested that the applicant’s
mother, who speaks Hungarian, refused to comply with the police
officer’s instructions, called her dogs on him, grabbed his arm
and tried to push him out of the garden. The applicant also refused
to go with him; instead, she took photographs of him using a flash.
The parties disagree on whether or not the applicant hit P.Z.H. with
the camera. On the basis of the parties’ observations and the
material in its possession, the Court finds it impossible to
establish the exact sequence of events.
The
Court notes that, even though P.Z.H. apparently hardly spoke any
English and could probably not express his instructions properly to
the applicant, the latter did not attempt to clarify the situation,
for example by asking her mother to translate. Rather, she
immediately obstructed P.Z.H., whose position as a police officer was
known to her. The Court also notes in this connection that P.Z.H.
wore uniform. In these circumstances, the Court sees no reason to
depart from the domestic authorities’ conclusion that the
police officer’s action was lawful. It remains to be determined
whether the police officer exceeded the necessary use of force when
arresting the applicant and her mother.
As
to the cause of the applicant’s injuries, the parties’
submissions again differ from each other. However, it is to be noted
that the only expert opinion which actually concerned the origin of
the applicant’s injuries, characterised the police officer’s
version as implausible. Concerning the applicant’s version, the
expert found it equally likely that the injuries on the applicant’s
back and shoulder originated either from being banged against a wall
or from punches by a truncheon.
Against
this background, the Court again finds it impossible to establish
beyond reasonable doubt that the applicant’s injuries were
sustained either when the police officer forcibly opened the door of
the house – a necessary measure in the circumstances –
and thereby pushed the applicant against the wall, or subsequently
when he was allegedly beating her.
The
Court notes that the applicant and her mother were arrested in the
course of an operation giving rise to unexpected developments to
which the police officer was called upon to react, since there is
nothing in the case file indicating that P.Z.H. should have expected
resistance (see Berliński v. Poland, nos. 27715/95 and
30209/96, § 62, 20 June 2002). While it is true that the
police officer was probably stronger than the applicant or her
mother, account must be taken of the fact that they effectively
resisted his legitimate action – by refusing to comply with the
verbal demands to follow him, setting dogs on him and resisting the
attempts of the officer to apprehend the applicant (compare and
contrast with Rehbock v. Slovenia, no. 29462/95,
28.11.2000, ECHR 200-XII).
The
Court draws attention to the fact that the applicant lacked critical
judgment of her own conduct when faced with a simple obligation to
cooperate with the legitimate requirements of a law enforcement
officer – an obligation which is part of general civic duties
in a democratic society. These circumstances count heavily against
the applicant, with the result that the Government’s burden to
prove that the use of force was not excessive in this case is less
stringent (see, Rehbock v. Slovenia, §§ 65-78).
In
sum, the Court cannot overlook the fact that the recourse to physical
force – the exact character of which cannot be established from
the case file – in the present case was made necessary by the
applicant’s own conduct (see, Berliński v. Poland,
op.cit., § 64). Moreover, while it is not disputed that the
applicant suffered some injuries as a result of the incident, their
nature does not show beyond reasonable doubt that the use of force
against her was excessive.
Accordingly,
there has been no substantive violation of Article 3 of the
Convention with regard to the alleged ill-treatment by the police.
b. Adequacy of the investigation
Nevertheless,
the Court considers that, taken together, the medical evidence, the
applicant’s testimony and the fact that her injuries were
sustained in the course of police action, give rise to a reasonable
suspicion that she may have been subjected to ill-treatment.
The
Court recalls that where an individual raises an arguable claim of
having been ill-treated by the police, unlawfully and in breach of
Article 3, that provision, read in conjunction with the State’s
general duty under Article 1 of the Convention to “secure to
everyone within their jurisdiction the rights and freedoms defined in
... [the] Convention”, requires by implication that there
should be an effective official investigation. This investigation
should be capable of leading to the identification and punishment of
those responsible. If this were not the case, the general legal
prohibition on inhuman and degrading treatment, despite its
fundamental importance, would be ineffective in practice, and it
would be possible in some cases for State agents to abuse the rights
of those within their control with virtual impunity (see Assenov
and Others v. Bulgaria, op. cit., p. 3290, § 102).
The
Court observes that, following the applicant’s complaint, the
authorities carried out an investigation into her allegations. It is
not, however, persuaded that this investigation was sufficiently
thorough and effective to meet the above requirements of Article 3.
The
Court finds it regrettable that the medical expert appointed by the
investigation authority only gave an opinion on the possible causes
of the police officer’s injuries, but, despite her repeated
requests, did not deal with the origin of those sustained by the
applicant. This is a serious shortcoming of the investigation,
especially in the light of the opinion prepared by the medical expert
commissioned by the applicant, according to which her version of the
events was plausible, unlike that of P.Z.H.
The
Court also notes that the applicant’s complaint was forwarded
to the Prosecutor’s Office under the same reference number as
that concerning the charge against her and her mother. Moreover, the
police officer was never heard as a possible suspect and the
individual allegedly staying at the applicant’s house during
the events was not heard, the investigation authorities making no
attempt to locate that person. These elements show the reluctance of
the authorities to carry out a thorough and effective investigation.
The
Court also acknowledges that the applicant’s complaint against
the decision of Public Prosecutor’s Office to close the
investigation as well as her private bill of indictment were
dismissed without any factual reasons being given, and without an
evaluation of her medical expert’s opinion or reflections on
any of her arguments. Neither the Chief Prosecutor’s Office nor
the County Regional Court went any further than pointing out the mere
fact that the applicant had obstructed a lawful police action and
this itself justified the force applied.
Consequently,
in view of the lack of a thorough and effective investigation into
the applicant’s arguable claim that she was ill-treated by a
police officer, the Court finds that there has been a violation of
Article 3 of the Convention under its procedural limb.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 10,000 euros (EUR) in respect of
non-pecuniary
damage.
The
Government found the applicant’s claim excessive.
The
Court finds that the applicant can reasonably be considered to have
suffered some non-pecuniary damage in the circumstances. Making its
assessment on an equitable basis, the Court awards her EUR 3,000
under this head.
B. Costs and expenses
The
applicant also claimed EUR 3,500 for the costs and expenses incurred
in the proceedings before the Court. She submitted that her claim is
based on an agreement concluded with her lawyer, according to which
she would only be billed if the case is closed successfully. She
filed an itemised statement of the hours billable by her lawyer.
The
Government found the applicant’s claim excessive.
According
to the Court’s case-law, an applicant is entitled to
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
finds it reasonable to award the sum claimed in its entirety.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been no substantive
violation of Article 3 of the Convention with regard to the alleged
ill-treatment by the police;
Holds that there has been a violation of Article
3 of the Convention under its procedural limb;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage and EUR
3,500 (three thousand five hundred euros) in respect of costs and
expenses, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-Passos F. Tulkens
Deputy Registrar President
