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DZWONKOWSKI v. POLAND - 46702/99 [2007] ECHR 273 (12 April 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/273.html
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[2007] ECHR 273
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FOURTH
SECTION
CASE OF DZWONKOWSKI v. POLAND
(Application no. 46702/99)
JUDGMENT
STRASBOURG
12
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 Dzwonkowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Mr J. Šikuta, judges,
and Mr T.L. Early, 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. 46702/99) against the Republic
of Poland lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Dariusz Dzwonkowski (“the
applicant”), on 24 July 1998.
The
applicant was represented by Mr W. Hermeliński, and
subsequently, Mrs A. Metelska, lawyers practising in Warszawa. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
The
applicant alleged, inter alia, violation of Article 3 of
the Convention on account of injuries sustained by him during his
arrest by the police on 13 June 1997.
The
application was transmitted to the Court on 1 November 1998,
when Protocol No. 11 to the Convention came into force
(Article 5 § 2 of Protocol No. 11).
On
22 March 2005 the Court declared the application partly inadmissible
and decided to communicate the complaints concerning the alleged
ill-treatment of the applicant and the lack of an effective and
thorough investigation into his allegations, under Articles 3 and 13
of the Convention, 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1973 and lives in Marki, Poland.
A. The events of 13 June 1997
On
the night of 12 June 1997 the applicant and three other men C.M.,
C.S. and D.S. were standing outside an all-night shop in Marki. The
Government submitted that the group had been disturbing public order,
drinking vodka and destroying public property. Somebody called the
police.
On
13 June 1997, at about 1 a.m., an unmarked police car arrived with
two plain clothes police officers G.G. and R.Ł. It was
followed by a second police car with two other police officers M.R.
and B.S.
The
police officers ordered all present outside the shop to lie on the
ground and then handcuffed them.
According
to the applicant, while he was lying down, his hands handcuffed
behind his back, the police officers, in particular G.G., started to
beat him on the head with their fists, kick him and insult him.
According
to the Government, the applicant, who was the most aggressive, had
hit police officer G.G. with his open hand on the face and had
insulted and threatened him. The police then managed to handcuff him.
The
applicant was then placed in one of the police cars and taken to the
Warsaw Sobering Up Centre (izba wytrzeźwień).
On
the way there, the applicant submitted that he was again beaten and
insulted by G.G. and R.Ł. His repeated requests to take him to a
hospital were ignored.
The
Government stated that the applicant had been “extremely
aggressive” also in the police car and that he had “repeated
his threats to the officers in a vulgar and offensive way”.
In
the Warsaw Sobering-up Centre the applicant underwent a breath test,
which showed 1.92 ‰ of alcohol in his blood. Subsequently, the
applicant was taken to the Bródno Hospital in Warsaw and
examined by doctors.
On
14 June 1997 the applicant was examined by doctors at the Praga
Hospital in Warsaw.
B. Medical evidence
The
applicant's injuries were described as follows.
A
certificate by a radiologist, Dr E.D., dated 12 June 1997, stated:
“Dzwonkowski Dariusz, 22 years old. Nasal bone
fracture. Fracture of the edge of the right eye socket. ... Suspected
fracture of the right jaw ... ”
A
certificate by a laryngologist, Dr M.O., dated 13 June 1997 at
3 a.m., stated, in so far as relevant:
“...Condition after a head injury. Non-displaced
nasal bone fracture. Large haematoma around left eye... Skin abrasion
and swelling on the nose and right eye... since the patient reported
loss of consciousness, a consultation with a surgeon is recommended.”
A
medical certificate dated 13 June 1997 at 3.50 a.m. read, in so far
as relevant:
“...Condition after an injury to head and right
eye. ... Fracture of jaw. Large haematoma and swelling on lower
eyelid (right); bloodshot eye; cornea swollen...”
On
13 June 1997 Dr T.S., an internist, issued a forensic medical
certificate, which read, in so far as relevant:
“Medical examination of Dariusz Dzwonkowski, born
on 15 March 1973, residing in Marki, identity card...
The examination carried out on 13 June 1997 upon the
victim's request. The patient submits that he was beaten on 12 June
1997. Complains of headache, dizziness, pain in legs and hands. As
regards the injuries:
- intense pain in right crown of the head,
haematoma 15 cm in diameter in this area, nose and eye pain;
- nasal bone fracture. Fracture of the edge
of the right eye socket... Suspected fracture of the right jaw; right
eye bloodshot and swollen;
- [illegible] scratch on the right thigh 20
cm long – the injury inflicted with a blunt object.
[The above injuries amounted to bodily harm resulting in
illness] for a period exceeding 7 days. This certificate is issued
for submission to the police.”
On
4 August 1997, Dr T.R., of the Warsaw Medical Academy, made a
forensic report, which stated, in so far as relevant:
“II. ...The certificate [issued by the
Praga Hospital on 14 June 1997] states: fracture of the left hand
(radial bone)...plaster cast for 10 days.
IV. The injuries sustained by [the applicant]
which are described in the medical certificates could have occurred
in the circumstances alleged by him.
However, one cannot exclude that they occurred in the
circumstances described by the police.”
C. The criminal proceedings against police officer G.G.
1. The first decision of the District Prosecutor
On
13 June 1997 the applicant requested the Wołomin District
Prosecutor (Prokurator Rejonowy) to initiate criminal
proceedings against police officer G.G. The applicant asserted that
on 12 June 1997 he had been beaten by the police and had sustained
serious injuries.
On
22 September 1997 the Wołomin Distric Prosecutor discontinued
the investigation into the allegations made by the applicant. The
prosecutor based his decision on the forensic report prepared by Dr
T.R. and on evidence taken from the police officers, the applicant
and C.M. and C.S., who had been arrested with him on the same day.
The
prosecutor observed that the applicant had sustained the following
injuries: fracture of jaw, non-displaced nasal bone fracture, large
haematoma around left eye, bloodshot eye and swollen cornea, large
haematoma on the lower eyelid of the right eye and fracture of the
left hand (radial bone).
The
prosecutor, relying on the statements of the police officers, which
he considered “coinciding and complementary”, established
the following course of events.
On
13 June 1997 at 1 a.m. the local police station in Marki was
informed that several men under the influence of alcohol were
disturbing the peace and destroying property in front of an all-night
shop. After the arrival of police cars, two men attempted to run
away. The police officers then ordered the applicant and the others
to lie on the ground. While the applicant was lying on the ground, he
insulted the police officers and hit the approaching police officer
G.G. in the face so that the latter fell on the ground. Other police
officers, R.Ł. and M.R., came to help G.G. but the applicant
kicked R.Ł. who had also fallen. A struggle began and the police
officers were able to apprehend the applicant only after he had
fallen on the ground. The prosecutor stated as follows:
“According to the police officers, while falling,
[the applicant] hit his head against the kerb. For a short while he
was calm but then he again insulted and attacked the police officers.
He was again apprehended and handcuffed. Afterwards, [the applicant]
started hitting his head in fury against the pavement. Seeing the
behaviour of [the applicant] and the injuries sustained by him, the
police officers had taken him by force to the police car.”
The
prosecutor also noted that other men who were arrested with the
applicant had given another version of events and had claimed that
the applicant had been beaten by the police officers. However, the
prosecutor found discrepancies in their statements, especially as to
whether the applicant had been handcuffed at the beginning of the
police action or later. Moreover, one of those arrested stated that
the applicant had also been hit with a truncheon, which had not been
confirmed by the others or by the applicant. Finally, the prosecutor
pointed out that those arrested had given different details as to the
lapse of time between the arrival of the first and the second police
car.
The
District Prosecutor concluded as follows:
“...It is not contested that during the police
intervention [the applicant] sustained the injuries as described by
the doctors. The expert in his forensic report stated that the
injuries sustained by [the applicant] could have occurred in the
circumstances alleged by him, as well as in the circumstances alleged
by the police officers.
Consequently, taking into account all evidence gathered
in the proceedings, it must be concluded that police officer G.G. had
not abused his powers (nie przekroczył uprawnień
slużbowych) and that the injuries sustained by the applicant
had occurred in the circumstances described by the police officers.
For these reasons the investigation shall be discontinued.”
2. The second decision of the District Prosecutor
On
3 October 1997 the applicant, represented by a lawyer, lodged an
appeal against the decision of 22 September 1997. He challenged the
forensic report, considering it inconclusive, and argued that the
circumstances in which he had sustained his injuries had not been
clarified. In particular, it had not been clarified how it had been
possible for him to have caused himself the multiple fractures as
described by the police. The applicant further complained that the
conclusion of the prosecutor's decision had not been justified by any
evidence.
On
27 February 1998 the Warsaw District Prosecutor re examined the
case and upheld his original decision.
In
his decision the prosecutor further analysed the account of the
events given by the applicant:
“...[the applicant] at the reconstruction of
events stated that he had been punched on his back and chest and
kicked in his ribs and back; however, it does not appear from the
medical evidence that he had sustained such injuries. The injuries
sustained by the applicant are the reflection of the events described
by the police officers. It is difficult to believe that multiple
kicks with a boot did not leave any visible marks.
It appears from the additional forensic report that the
injuries sustained by [the applicant] could have occurred in the
circumstances described by him as a result of being hit with objects
like: a fist, booted foot, truncheon, pipe or other solid and flat
object.
However, the expert also established that identical
injuries could also be caused by falling on hard ground and on a hard
and blunt object like a stone, kerb, step, a road – therefore
it can confirm the version of events given by the police officers...
Furthermore, the expert established that the fracture of
the left hand could have resulted from falling on the ground as well
as from twisting a hand when handcuffing a resisting person...”
The
prosecutor came to the same conclusions as in his decision of
22 September 1997. He found that police officer G.G. had not
abused his powers and that the applicant had sustained his injuries
in the circumstances alleged by the police officers.
3. The decision of the Regional Prosecutor
The
applicant lodged an appeal with the Warsaw Regional Prosecutor
(Prokuratura Wojewódzka).
On
5 June 1998 the Warsaw Regional Prosecutor upheld the District
Prosecutor's decision.
D. The criminal proceedings against the applicant
1. The first-instance proceedings
On
18 June 1997 the Wołomin District Prosecutor indicted the
applicant before the Wołomin District Court (Sąd
Rejonowy) on charges of assaulting police officers G.G. and R.Ł.,
and uttering threats and insulting all four police officers.
On
6 September 1999 the Wołomin District Court gave judgment. The
applicant was convicted as charged and sentenced to a fine.
2. The appellate proceedings
The
applicant lodged an appeal against the judgment.
On
22 December 1999 the Warsaw Regional Court quashed the judgment and
remitted the case. The appellate court held, inter alia, that:
“...The District Court failed to assess diligently
the evidence before it; therefore, the facts as established by it are
open to doubt. Without prejudging the merits of the case, it should
be noted that the outcome of this case depends on the clarification
of the circumstances in which the accused sustained his injuries. It
is beyond question that the accused sustained the injuries during the
police action on 13 June 1997 but those circumstances have not so far
been sufficiently clarified.
The District Court established that during the police
action the accused had fallen on the ground and had hit his head
against a kerb. He then repeatedly hit his head against the ground
causing injuries to his face and hand. The District Court established
the above facts on the basis of the testimonies of the police
officers whom it considered trustworthy.
However, as the accused rightly points out, the District
Court, in its assessment, did not take into account that these
witnesses [the police officers] had an interest in the outcome of the
case.... The very fact [that at the same time the criminal
proceedings against police officer G.G. were being conducted]
required the lower court to make a critical evaluation of the
testimonies of the police officers...The District Court should have
been more cautious in assessing their statements, also because,
contrary to that court's opinion, they were not at all detailed.
The District Court failed to notice that the witness
B.S. [one of the police officers] when giving evidence at the
hearing, apparently spontaneously, had given another version of
events contradictory to what was established by the trial court as
the cause of the injuries. This witness admitted that [the police
officers] had stood and struggled with [the applicant]; during the
struggle [the applicant] had sustained his injuries and it had been
necessary to take him to a hospital...
Furthermore, it should be examined whether it is
probable that [the applicant] had himself caused the injuries to his
face and hand. Would he, even intoxicated, hurt himself? As we know
he had his nose broken, the edge of his right eye socket fractured, a
broken jaw and head and ear injuries; therefore, his state of health
was serious and resulted from many injuries and not a single one. A
single fall on the ground as reported by the police officers could
not have caused so many injuries...”
The
appellate court instructed the trial court to re-hear evidence from
the applicant and other witnesses in order to clarify the
inconsistencies and to consider ordering a fresh medical report or to
re-hear the expert witnesses. The court concluded:
“If the circumstances of the case are established
on the basis of the correct assessment of evidence, it will be
possible to determine whether the accused committed the alleged
offences and whether the injuries sustained by him resulted from the
actions of the police officers, and, finally, to assess the social
danger represented by the applicant's acts and to decide on his guilt
or penalty.
On the basis of the above considerations the Regional
Court decided as in the operative part [of the judgment].”
3. The retrial
On
17 June 2002 the Wołomin District Court gave judgment. The court
found that the applicant had committed the offences of assaulting
police officers G.G. and R.Ł. and uttering threats and insulting
all four police officers. Nevertheless, the trial court discontinued
the criminal proceedings against the applicant because it considered
that the applicant's actions were of “minimal social danger”
(znikoma społeczna szkodliwość czynu).
As
regards the course of events, the trial court established the
following:
“...While [the police officers] carried out their
duties and attempted to establish the identities of the arrestees,
[the applicant] got up and started to insult the police officers. He
uttered threats and hit police officer G.G. in the face so that he
fell to the ground. Police officers G.G., R.Ł., M.R. and B.S.
started to struggle with [the applicant], attempting to apprehend
him. During this struggle [the applicant] kicked police officer R.Ł.
in the stomach and R.Ł. fell to the ground. The police officers
attempted to put [the applicant] on the ground and to handcuff him
but he tried to free himself. Then [the applicant] fell down hitting
his face against the ground and his nose started to bleed. Despite
these injuries, he continued to struggle and to hit his head against
the kerb; he had also been repeatedly hit on the head by police
officer G.G. using his fists and kicked in the head and other parts
of his body. The police officers drove all those arrested to the
Warsaw Sobering-up Centre where breath tests were carried out...All
those arrested were under the influence of alcohol, the breath test
revealed that [the applicant] had 1.93 ‰ alcohol in his
blood...
It is not disputed that [the applicant] sustained the
following injuries: non displaced nasal bone fracture (swelling
and abrasion on the nose); fracture of the edge of the right eye
socket (with bloodshot eye and swollen cornea); haematoma under the
right eye; 15 cm haematoma on the top of the head; swelling and
abrasion on the front, line-shaped abrasion 20 cm long on his right
thigh; fracture of the radial bone on the left hand...
In his forensic report the expert stated that it was not
possible to establish categorically whether these injuries had been
caused by the beating and kicking of [the applicant] by the police
officers or by his hitting his head against the kerb...
As regards the injuries sustained by [the applicant],
taking into account the forensic medical report, the court considers
as true the statements given by [both] [the applicant] and the police
officers. The court considers that the injuries could have occurred
in the circumstances alleged by [the applicant] as well as in the
circumstances described by the police officers.
The testimonies of the above-mentioned witnesses [the
police officers] are concurrent, logical and complementary. During
both the investigation and the trial phase these witnesses
consistently testified that the accused had sustained injuries as a
result of falling on the ground during the struggle and then hitting
his head against the pavement. [However], there are discrepancies as
to whether the accused fell on the ground by himself or was pushed,
whether he hit his head against the kerb or the pavement, where he
was lying precisely and which side of his head he had hit. Such gaps
cannot be explained solely by the lapse of time since the events;
obviously these witnesses tried to diminish their role in the events
by arguing that [the applicant] was solely responsible for his
injuries.
The court accepts as true that part of the police
officers' account in which they stated that the injuries had also
occurred [as a result of the applicant's actions]; however, the court
refuses to believe that part of their statements in which they denied
that any of them, and in particular G.G., had beaten [the applicant]
and had caused the above-mentioned injuries.
This part of the police officers' testimonies is
contrary to the statements given by other witnesses C.M., C.S. and
D.S. [other persons arrested with the applicant]. C.S. testified at
the hearing that [the applicant] had been kicked and beaten by the
police officers all over his body, on the face and on the
head....Witness C.M. testified consistently that [the applicant] had
been beaten by the police officers. His testimony corresponds to that
given by the witness D.S. The court believes that these witnesses
told the truth when they testified that the accused had been beaten
by the police; however, the court does not believe that during these
events [the applicant] had been calm and had not attacked, uttered
threats or insulted the police officers...”
The
court concluded:
“In the light of the evidence obtained, the
circumstances in which [the applicant] committed the alleged
offences, are established beyond any doubt. Taking into account the
nature of the rights violated by the accused, the penalty provided by
law for these offences and the fact that during the events [the
applicant] sustained injuries which were caused not only by his own
actions, the court finds that [the applicant's] actions represent a
minimal social danger and that, accordingly, the proceedings should
be discontinued.”
On
13 August 2002 the applicant lodged an appeal against the judgment.
On
4 November 2002 the Warsaw Regional Court dismissed the appeal and
upheld the judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article
16 of the Police Act of 6 April 1990 reads, in so far as relevant:
If
a lawful order given by a police authority or police officer has not
been complied with, a police officer may apply the following coercive
measures:
1) physical, technical and chemical means of
restraining or escorting persons or of stopping vehicles;
2) truncheons;
3) water cannons;
4) police dogs;
5) rubber bullets fired from fire-arms.
Police
officers may apply only such coercive measures as correspond to the
exigencies of a given situation and are necessary to ensure that
their orders are obeyed.”
Paragraph
5 of the Ordinance of the Council of Ministers of 17 September
1990 on the Use of Coercive Measures by the Police provides:
Physical
force shall be used in order to restrain a person, to counter an
attack or to make [a person] obey an order.
When
using physical force, no one shall hit a person, unless he has to do
so in self defence or in order to counter an unlawful attack
against life, health or property of others.”
Paragraph 6 of the Ordinance provides, in so far as relevant, as
follows:
“Handcuffs may be used (...) in order to prevent
an escape or to prevent an active assault or active resistance. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that he had been ill-treated by the police
during his arrest and that no adequate and effective investigation
into his allegations had been carried out by the authorities. He
invoked Article 3 of the Convention which provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested that argument.
A. Admissibility
The Court notes that these complaints are not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
1. Alleged ill-treatment by the police
(a) The parties' submissions
The
applicant submitted that he had been ill-treated by the police. He
referred to the Court's case-law to the effect that if an individual
is taken into the police custody in good health but is found injured
at the time of release, it is incumbent on the State to provide
plausible explanations as to how the injuries occurred (Assenov
and Others v. Bulgaria, judgment of 28 October 1998, Reports
of Judgments and Decisions 1998 VIII). The applicant pointed
to the decisions of the District Prosecutor who had confirmed the
injuries sustained by him. He underlined that in respect of a person
deprived of his liberty any recourse to physical force which was not
made strictly necessary by his own conduct, diminishes human dignity
and is in principle an infringement of Article 3 of the Convention.
The applicant further argued that even assuming that the injuries had
occurred in the circumstances advanced by the police, namely as a
result of the applicant's own acts, the State remained responsible as
the police officers failed to prevent them.
The
Government maintained that the applicant had not been subjected to
treatment contrary to Article 3 of the Convention. They submitted
that the applicant “took an active part in a struggle with the
police officers.” Even if he had been intoxicated, he should
have been aware of the risk of sustaining injuries. The Government
further argued that the exact origin of his injuries could not be
established and referred to the findings of the medical experts
concluding that the injuries could have resulted either from the
applicant's fall or from the police actions.
In
conclusion, the Government submitted that the suffering and injuries
sustained by the applicant did not reach the threshold of severity
necessary to fall under Article 3 of the Convention.
(b) The Court's assessment
The Court reiterates that where a person is injured
while in detention or otherwise under the control of the police, any
such injury will give rise to a strong presumption that the person
was subjected to ill-treatment (see Bursuc v. Romania,
no. 42066/98, § 80, 12 October 2004). Where an individual,
when taken into police custody, is in good health, but is found to be
injured at the time of release, it is incumbent on the State to
provide a plausible explanation of how those injuries were caused,
failing which a clear issue arises under Article 3 of the Convention
(see Tomasi v. France, judgment of 27 August 1992, Series
A no. 241-A, pp. 40-41, §§ 108 11, and Selmouni
v. France [GC], no. 25803/94, § 87, ECHR 1999-V).
In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25, pp.
64-65, § 161). However, such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact. Where the events in
issue lie wholly, or in large part, within the exclusive knowledge of
the authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. Indeed, the burden of proof
may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Ribitsch v. Austria,
judgment of 4 December 1995, Series A no. 336, § 34,
Salman v. Turkey [GC], no. 21986/93, § 100,
ECHR 2000 VII).
The Court further 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 (see Ireland v. the
United Kingdom, cited above, p. 65, § 162).
In respect of a person deprived of his liberty,
recourse to physical force which has not been made strictly necessary
by his own conduct diminishes human dignity and is in principle an
infringement of the right set forth in Article 3 (see
Ribitsch, cited above, § 38). Thus, the burden rests
on the Government to demonstrate with convincing arguments that the
use of force, which resulted in the applicant's serious and numerous
injuries was not excessive (see, mutatis mutandis, Rehbock
v. Slovenia, no. 29462/95, § 72, ECHR 2000 XII
and Matko v. Slovenia, no. 43393/98, § 104,
2 November 2006).
Turning to the circumstances of the instant case the
Court observes that the applicant sustained fractures of the jaw,
nose, edge of the right eye socket and left hand. In addition, he
suffered haematomas and bruises (see paragraphs 14 18
above). His injuries were established by several medical examinations
carried out while he was still in police custody, and shortly
afterwards, and were confirmed by the domestic authorities in both
sets of subsequent criminal proceedings. Thus, the degree of bodily
harm indicates that the applicant's injuries were sufficiently
serious to amount to inhuman and degrading treatment within the scope
of Article 3 (see, for example, Assenov and Others, cited
above, § 95, Afanasyev v. Ukraine, no. 38722/02,
§ 61, 5 April 2005). It remains to be considered
whether the State should be held responsible under Article 3 for
these injuries.
It
has not been disputed, neither by the domestic authorities nor by the
parties, that the applicant's injuries had occurred during his arrest
by the police on 13 June 1997.
The
Government submitted that the applicant's injuries were the result of
his aggressive behaviour during the struggle with the police officers
who had tried to apprehend him and that expert medical opinion could
not categorically establish the origin of the injuries.
The
Court firstly notes the contradictory conclusions in the two sets of
domestic proceedings which concerned the assessment of the same
events of 13 June 1997. In the proceedings instituted upon the
applicant's allegations of ill treatment, the public prosecutors
concluded that the applicant's injuries had been caused, as submitted
by the police, by his falling on the ground and repeatedly hitting
his head against the kerb (see paragraphs 25 and 29 above).
However, in the subsequent criminal proceedings against the
applicant, the courts acknowledged that the applicant had been beaten
by the police since his numerous injuries could not have been caused
solely by his own actions (see paragraph 38 above).
The
latter conclusions of the domestic courts constitute sufficient
factual and evidentiary basis for the Court to establish that the
applicant had sustained his injuries, at least partly, as a result of
being beaten by the police officers.
In
this connection the Court reiterates that in respect of a person
deprived of liberty, any recourse to physical force which has not
been made strictly necessary by his own conduct is in principle an
infringement of Article 3 (see paragraph 51 above). The Court
considers that, even accepting that the applicant had not been calm
and had struggled with the police officers, there is no evidence that
he had been particularly dangerous or had been in possession of a
weapon. No evidence of any injury to the police officers was adduced
by the Government. The Government did not advance any additional
argument that would allow the Court to establish that the applicant's
conduct was of such character as to justify recourse to the
considerable physical force that, judging by the seriousness of the
injuries, must have been employed by the police. The instant case
must be thus distinguished from the case of Klaas v. Germany,
which concerned less serious injuries sustained in the course of an
arrest operation, and where the national courts had concluded that
the arresting officers had not used excessive force after having had
the opportunity of hearing witnesses at first hand and of assessing
their credibility (see Klaas v. Germany, judgment of
22 September 1993, Series A no. 269, pp. 17 18, § 30).
Regard
being had to those considerations and to the particularly serious
injuries sustained by the applicant, the Court finds that the
Government have not furnished convincing or credible arguments which
would provide a basis to explain or justify the degree of force used
by the police (see, Rehbock, cited above, § 76).
Accordingly, the force used by the police was excessive and
unjustified in the circumstances.
The
use of such force had as a consequence injuries which undoubtedly
caused serious suffering to the applicant of a nature amounting to
inhuman treatment (see Rehbock, cited above, § 77).
In
the light of the above, and in the absence of any plausible
explanation of the Government which would justify the degree of force
used, it must be considered that the applicant was subjected to
inhuman treatment for which the Government must bear responsibility.
There
has accordingly been a violation of Article 3 of the Convention.
2. Adequacy of the investigation
(a) The parties' submissions
The
applicant maintained that the investigation into his allegations had
not been effective and thorough as required by Articles 3 and 13 of
the Convention.
Article 13
provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government did not agree with this assertion and stated that “having
regard to the circumstances of the case and divergences in the
explanations of the applicant's friends, in the opinion of the
Government, the investigation in the present case complied with the
requirements of Articles 3 and/or 13”.
(b) The Court's assessment
The
Court recalls that where an individual makes a credible assertion
that he has suffered treatment infringing Article 3 at the hands of
the police or other agents of the State, 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. As with an investigation under Article 2, such
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, the general legal
prohibition of torture and inhuman and degrading treatment and
punishment would, despite its fundamental importance, be ineffective
in practice and it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity (see, among other authorities, Labita v. Italy
[GC], no. 26772/95, § 131, ECHR 2000-IV).
The
investigation into serious allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill founded conclusions to close their investigation or as the
basis of their decisions (see Assenov and Others, cited above,
§ 103 et seq.). They must take all reasonable steps
available to them to secure the evidence concerning the incident,
including, inter alia, eyewitness testimony and forensic
evidence (see, Tanrıkulu v. Turkey [GC],
no. 23763/94, ECHR 1999-IV, § 104 et seq. and Gül
v. Turkey, no. 22676/93, § 89, 14 December 2000).
Any deficiency in the investigation which undermines its ability to
establish the cause of injuries or the identity of the persons
responsible will risk falling foul of this standard.
Turning
to the circumstances of the instant case the Court notes that
following the applicant's complaint that on 13 June 1997 he had been
ill-treated by police officers, the public prosecutor carried out an
investigation. It is not, however, persuaded that this investigation
was sufficiently thorough and effective to meet the above
requirements of Article 3.
It
finds it particularly unsatisfactory that the prosecutor was prepared
to conclude that the applicant's injuries had been caused by his
hitting himself against a kerb despite the medical evidence proving
the extent of the injuries sustained by him and statements of
witnesses who contradicted the police's version of events. The Court
recalls that the domestic authorities in the subsequent trial against
the applicant had considered those witnesses trustworthy in so far as
they asserted that the applicant had been beaten by the police. The
Court finds that the prosecutor did not make any attempt to give a
logical explanation as to how the applicant could have sustained
multiple fractures without any use of force by the police.
The
prosecuting authorities unconditionally embraced the statements of
the police officers without taking any note of the fact that they had
obviously had an interest in the outcome of the case and in
diminishing their responsibility. The Court would agree with the
assessment of the Regional Court which, in the subsequent set of
proceedings, underlined the importance of assessing critically the
testimonies of police officers in such circumstances.
In
the light of the above, the Court considers that the investigation
was superficial, lacked objectivity and ended in decisions which
contained conclusions unsupported by a careful analysis of the facts.
Against
this background, in view of the lack of a thorough and effective
investigation into the applicant's arguable claim that he had been
beaten by police officers, the Court finds that there has been a
violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
parties referred to their submissions on the effectiveness of the
investigation from the standpoint of Article 3 of the Convention (see
paragraphs 59 and 60 above).
In view of its findings above (see paragraphs 63-67
above) and having regard to its case-law (Nesibe Haran v. Turkey,
no. 28299/95, § 91, 6 October 2005, Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98,
§§ 120-123, 6 July 2005, and Makaratzis,
cited above, § 86), the Court considers that no
separate issue arises under Article 13.
III. 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 100,000 Polish zlotys (PLN) in respect of
non pecuniary damage.
The
Government considered the applicant's claim excessive.
The
Court awards the applicant 10,000 euros (EUR) in respect of
non pecuniary damage.
B. Costs and expenses
The
applicant, who was represented by a lawyer, also claimed EUR 1,500
for the costs and expenses incurred before the Court. This included
15 hours' work at an hourly rate of EUR 100.
The
Government considered this amount excessive.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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, in the light of the applicant counsel's
specification of the costs and expenses incurred in the proceedings
before the Court, he should be awarded the amount claimed in full.
Accordingly, the Court awards the applicant EUR 1,500 for his
costs and expenses together with any value-added tax that may be
chargeable.
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 a violation of Article
3 of the Convention on account of the applicant's ill-treatment;
Holds that there has been a violation of
Article 3 of the Convention as regards the absence of an
effective investigation into the applicant's allegations of
ill-treatment;
Holds that no separate issue arises under
Article 13 of the Convention;
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 10,000 (ten
thousand euros) in respect of non-pecuniary damage and EUR 1,500 (one
thousand five hundred euros) in respect of costs and expenses, to be
converted into Polish zlotys 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 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
