AS TO THE ADMISSIBILITY OF
by Robert OLSZOWY
The European Court of Human Rights (Fourth Section), sitting on 13 October 2009 as a Chamber composed of:
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 5 August 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Robert Olszowy, is a Polish national who was born in 1971 and lives in Oleśnica. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The circumstances of the case
1. Undisputed facts
On 30 May 2003 the police were called to the applicant’s house because of a family dispute. Two police officers, A and B, arrived and decided to take the applicant to hospital as he had an injury to his hand. He was taken to the Oleśnica hospital.
2. The applicant’s account
The police officers refused to leave him at the hospital, but took him to Oleśnica Police Station. At the police station, with his hands handcuffed behind his back, the applicant was beaten by police officers A and B. They hit and kicked him in his face and back. After about twenty minutes he was taken to the hospital again, by other police officers, with several injuries to his head and body.
3. The Government’s account
At Oleśnica Hospital the applicant refused to undergo a medical examination and tried to escape from the hospital. Police officer B managed to stop him in the car park outside the hospital where the applicant had fallen on his face. While on the ground, he had been struggling with police officer B. Only when police officer A arrived did they manage to handcuff the applicant.
The applicant was then placed in the police car and taken to the police station, where he refused to undergo an alcohol test. The duty officer then noticed that the applicant’s hand was bleeding and ordered his transfer to the hospital.
4. Medical evidence and criminal investigation
The applicant remained in Oleśnica Hospital from 30 May to 3 June 2003. He underwent an operation on his hand.
A hospital record (karta informacyjna) of 3 June 2003 stated that the applicant had been admitted to the hospital because of injuries sustained in unknown circumstances.
On 6 June 2003 the applicant requested a forensic certificate. The certificate, prepared by a doctor, A.P., a court expert, dated 6 June 2003, stated the following:
“...[The applicant] came in for an examination on 6 June 2003 because of injuries sustained on 30 May 2003 at Oleśnica Police Station...
Description of injuries:
Three small haematomas on the forehead, measuring about 0.5 cm, 1 cm and 0.5 cm, of a blue-brown colour. Glasses-shaped haematomas on both eyes, of a blue brown colour (injury 6 days ago). Abrasion on the back under the left shoulder blade, on the surface, 3 by 2 cm, covered with a scab. Abrasion on the spine (thoracic vertebra TH-10), 0.5 cm. Three scratches on the left shoulder, linear, 3 cm long, covered with a fresh scab. Abrasion on the outer right forearm below the elbow, 2 x 3 cm. Small wound to the thumb, covered with a fresh scab, 0.5 cm.
Cut wounds on fingers IV and V with injury to flexor tendons caused by [the applicant] cutting himself with a knife...”
On 2 June 2003 the applicant requested the Oleśnica District Prosecutor (Prokurator Rejonowy) to initiate criminal proceedings against police officers A and B. The applicant asserted that on 30 May 2003 he had been beaten up by the police officers and had sustained serious injuries.
The District Prosecutor opened an investigation and heard statements from the applicant, his wife, who had waited for him outside the hospital, the police officers, a doctor and a nurse who had attended to the applicant.
On 19 December 2003 the forensic expert submitted his opinion to the prosecutor. The expert established that had the applicant been held by two persons and beaten up in the manner described by him, he would have sustained bruises and hematomas on various parts of his body. However, no such injuries had been present and the number of injuries actually sustained by the applicant had been disproportionately small compared with his allegations. Moreover, the expert established that the injuries sustained by the applicant, in particular the bruises on his forehead and hematomas around his eyes, could have happened while struggling with the police officers and by their applying immobilisation techniques to the applicant. Other injuries sustained by the applicant had been typical of a fall to the ground or being handcuffed. The expert concluded:
“On the basis of the totality of the evidence collected and the established procedure during which the applicant’s injuries were sustained, it should be concluded that those injuries did not result from being beaten up but could have happened in the circumstances indicated by the police officers, that is, when [the applicant] fell to the hard ground and, while on the ground, struggled with the officers.”
On 31 December 2003 the District Prosecutor discontinued his investigation of the allegations that “[the applicant] was beaten up by police officers and consequently sustained the following injuries: three small haematomas on the forehead, glasses-shaped haematomas on both eyes, an abrasion on the back under the left shoulder blade, an abrasion on the spine, three linear scratches on the left shoulder, an abrasion on the right forearm below the elbow, and a small wound to the thumb”. The prosecutor heard statements from both police officers and established that when they had brought the applicant to the hospital the first time he had had a cut hand and, after an examination, was to be admitted to a surgical ward of the hospital. However, he had tried to escape from the hospital and the police officers had followed him. Police officer B had managed to stop him in the car park outside when the applicant had fallen on his face. While on the ground he had been struggling with police officer B. Only when the second police officer had arrived had they managed to overpower the applicant and handcuff him. The police officers stated that, as the applicant had been aggressive, they had had to use force against him in order to arrest and handcuff him. Subsequently, the applicant had been taken to the police station, where he had refused to undergo an alcohol test. The duty officer had ordered the applicant to be taken to the hospital again because of his injured hand that had been bleeding. The prosecutor concluded:
“In order to establish the circumstances in which the applicant sustained the injuries described in the forensic certificate of 6 June 2003, a forensic expert opinion was prepared. On the basis of all the evidence collected... the expert concluded that those injuries did not result from being beaten up but could have happened in the circumstances indicated by the police officers, that is, when [the applicant] fell to the hard ground and, while on the ground, struggled with the officers.
In the light of those circumstances, it should be concluded that there is insufficient evidence that police officers A and B overstepped their powers or beat [the applicant] up on the day in question. The investigation should therefore be discontinued...”
On 12 January 2004 the applicant appealed to the District Court against the prosecutor’s decision. On 25 March 2004 the District Court dismissed his appeal. The court considered that the prosecutor’s finding had been correct and based on the evidence collected. The court pointed to the fact that the statements of police officers A and B had been consistent and corroborated by other witnesses. Moreover, the applicant’s version of events had not been confirmed by the forensic expert.
B. Relevant domestic law
Section 16 of the Police Act of 6 April 1990 reads, in so far as relevant, as follows:
“1. If a lawful order given by a police authority or a police officer has not been complied with, police officers may apply the following coercive measures:
1) physical, technical and chemical means of restraining or escorting persons or of stopping vehicles;
3) water cannons;
4) police dogs and horses;
5) rubber bullets fired from firearms;
2. 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.”
The applicant complained under Article 3 of the Convention that he had been ill-treated by police officers A and B, who had beaten him up at the police station on 30 May 2003. He also complained that the prosecutor had failed to investigate the case properly. The applicant complained that he was still suffering from adverse consequences of this event, particularly as regards his mental health.
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
a) The Government firstly argued that the applicant had failed to exhaust the available domestic remedies in that he had not lodged an appeal against the decision regarding his arrest and had not brought a civil action for compensation.
However, the Court has held on several occasions that by asking the Polish authorities to institute criminal proceedings into his allegations of ill treatment, the applicant discharged his duty under Article 35 § 1 of the Convention to afford the Polish State an opportunity to put matters right through its own legal system before having to answer before an international body for the acts complained of (see Olszewski v Poland (dec), 55264/00, 13 November 2003, and Lewandowski and Lewandowska v. Poland, 15562/02, § 50, 13 January 2009). Accordingly, the Court holds that the applicant was not also required to pursue the other remedies relied on by the respondent Government (see H.D. v. Poland (dec.), no. 33310/96, 7 June 2001). Moreover, a tort action would have at most resulted in an award of damages, whereas in cases of ill-treatment by State agents an alleged breach of Article 3 cannot be remedied exclusively through the payment of compensation (see, among many other authorities, İlhan v. Turkey [GC], no. 22277/93, § 61, ECHR 2000-VII).
For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.
b) The Government further submitted that the applicant’s complaint about the alleged ill-treatment at the hands of the police had been manifestly ill-founded. They argued that the police officers had used force which had been made necessary by the applicant’s own actions. No excessive force had been used against him, and no beating had occurred in the police station. As a consequence of his attempt to escape and the struggle he had put up when the police officers had tried to stop him, the applicant had sustained minor injuries. The Government maintained that the investigation had not confirmed the applicant’s allegation that he had been beaten up in the police station, whereas the version of events advanced by the police officers had been confirmed by a forensic expert.
The applicant contested the Government’s conclusions. He stated that the police officers had taken him from the hospital to the police station, where they had beaten him up. He maintained that he had not been under the influence of alcohol and had been calm; nevertheless, he had been taken to the police station, where, handcuffed, he had been brutally beaten up.
The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment. 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 mental effects and, in some cases, the sex, age and state of health of the victim. 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. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Labita v. Italy [GC], no. 26772/95, 6.4.2000, §§ 119-120, ECHR 2000-IV). Allegations of ill treatment must be supported by appropriate evidence. 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, and Dzwonkowski v. Poland, no. 46702/99, § 49, 12 April 2007).
The Court observes that the applicant was taken into custody by the police with no other injuries than a cut on his hand. A couple of hours later the applicant was admitted to a hospital suffering from several hematomas to his forehead and around his eyes as well as bruises on various parts of his body. The parties disagreed on whether the applicant sustained the injuries during a struggle he put up when he attempted to escape from the hospital or was beaten up after being taken to the police station. It must be noted that the applicant’s allegation that he had been beaten up in the police station was not confirmed following the domestic investigation of his complaints. While the Court is not bound by the findings of the domestic authorities as to facts alleged to be in breach of the Convention, on the basis of the parties’ observations and the material in its possession, it finds it impossible to establish whether any ill-treatment occurred at the police station as alleged by the applicant.
The Court notes that the applicant was arrested at his house following a family dispute and had apparently been under the influence of alcohol. The forensic expert established beyond doubt that the injuries sustained by him did not match his allegations that he had been beaten and kicked by the two police officers. He also considered, basing himself on the applicant’s medical file, that all his injuries could have happened in the circumstances indicated by the police officers - when the applicant fell to the ground and struggled with them. On the basis of this opinion and other witnesses, the prosecution service and the District Court reached the conclusion that the applicant’s injuries had resulted from the justified use of force by the police officers when they were overpowering him. In reaching that conclusion the domestic authorities had the benefit of seeing various witnesses give their evidence and of evaluating their credibility. No material has been adduced in the course of the Strasbourg proceedings which could call into question the findings of the domestic authorities and add weight to the applicant’s allegations before the Court (see Olszewski, cited above).
Regard being had to the above-mentioned factors, and even assuming that the injuries sustained by the applicant reached the minimum level of severity to fall within the ambit of Article 3 of the Convention, the Court concludes that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Government contested that allegation and submitted that the investigation in question had been thorough and effective. They maintained that all witnesses had been heard and that the prosecutor’s findings had been reviewed by the court.
The Court first reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar 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 [its] 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 an 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 or 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, Caloc v. France, judgment of 20 July 2000, § 131, ECHR 2000-IX).
Turning to the facts of the present case, and assuming that the applicant made a credible assertion that he had suffered treatment infringing Article 3 at the hands of the agents of the State, the Court considers that the investigation in the applicant’s case was effective and capable of leading to the identification and punishment of those allegedly responsible (see Olszewski (dec), cited above). This conclusion is based on the number of witnesses heard by the prosecutor, the documents taken into account and the promptness of the investigation.
The Court notes that one of the most important pieces of evidence relied on by the prosecutor was an opinion prepared by a forensic expert based on the totality of the available medical evidence. The expert was clear in his conclusions that the nature of the injuries sustained by the applicant were typical of a fall to the ground in the circumstances described by the police and did not match the applicant’s allegations. The applicant was not detained and no charges were laid against him. On 3 June 2003 he was released from hospital. There was no obstacle for him to obtain further medical opinions if he considered them necessary to demonstrate convincingly the extent of his injuries. Regard being had to the absence of any ambiguity in the expert’s explanation on how the applicant’s injuries could have occurred and the absence of medical evidence contradicting these findings, the prosecutor cannot be reproached for having relied on this opinon in closing the investigation into the applicant’s allegations of ill treatment.
Moreover, the Court does not consider that the prosecutor failed to provide a logical explanation on how the applicant sustained his injuries or that he unconditionally embraced the statements of the police officers (compare and contrast, Dzwonkowski, cited above, §§ 64-66 and Mrozowski v. Poland, no. 9258/04, § 37, 12 May 2009). Finally, the Court notes that the decision of the prosecution service was verified by the District Court.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Early Nicolas Bratza