AS TO THE ADMISSIBILITY OF
by Łukasz ADAMSKI
The European Court of Human Rights (Fourth Section), sitting on 27 January 2009 as a Chamber composed of:
Nebojša Vučinić, judges
and Lawrence Early, Registrar,
Having regard to the above application lodged on 7 February 2004,
Having deliberated, decides as follows:
The applicant, Mr Łukasz Adamski, is a Polish national who was born in 1985 and lives in Ostróda. He was represented before the Court by Ms M. Sykulska-Przybysz, a lawyer practising in Tczew. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 July 2001 the applicant, who was sixteen years old at the time, attended a rock concert held at the municipal stadium in Ostróda.
The applicant submitted that during the concert he had been attacked by a certain K.S., who was also a minor.
The Government submitted that the police had intervened in an altercation between the two youths.
The applicant submitted that during the arrest the police officers had used a dog, a truncheon and disabling gas against him.
The Government submitted that the truncheon was used only against K.D., who had been aggressive.
Following the arrest both the applicant and his attacker were transported to the police station for questioning. Municipal guards called by the police assisted the police in the transport. They both underwent a breathalyser test which showed 0.66% of alcohol for the applicant and 0.33% for K.S. After two hours of detention the applicant’s parents were called to take him home.
Upon the applicant’s release, the applicant’s mother signed a statement to the effect that she had no comments to make as to her son’s health.
On 20 August 2001 police officer M.M. questioned the applicant in the presence of his father, as provided for by the Juveniles Criminal Procedure Act of 1982. The applicant was informed of his right to remain silent, but he preferred to answer the questions. He denied that he had committed any offence. He stated that during the evening of 13 July 2001 he had been first accosted and then physically attacked by a group of youths. One of them had hit him in the face and then fled. Immediately afterwards the applicant had found K.S., who belonged to this group, and accused him of having hit his friend. Thereupon K.S. head butted the applicant in the face and started to run away. The applicant started to chase him. Immediately afterwards they were arrested by the police and taken to the police station.
On 27 August 2001 police officer M.M. lodged with the Juvenile Division of the Ostróda District Court a request to have proceedings instituted against the applicant. A separate request against K.S. on an identical charge of disturbing public order was lodged with the same court on the same day.
Later on, the court examined the request against K.S. and dismissed it. The court noted that, as a result of an earlier similar request concerning another breach of public order, K.S. had already been placed under the supervision of a court supervisor. Therefore it did not serve any practical purpose to institute proceedings which could only have had the same result, namely the imposition of a supervision order.
On 17 and 19 October the applicant’s father requested the court to question police officers P.M., D.K., M. G. and J. P., municipal guards involved in the incident, the applicant’s friend M.S., an eyewitness to the material events, and the applicant’s parents. He also requested the court to take evidence on the basis of the declaration signed by the applicant’s mother upon his release from the police station.
The applicant’s case was examined by the court on 22 October 2001. The court first interviewed the applicant who stated that on the day in question he had drunk two glasses of beer; that at the stadium he had been neither noisy nor aggressive toward the police; that he had been attacked first by one of the group of youths and then by K.S.; that they had been arrested a moment later, while he was chasing K.S.; that the police had unleashed a police dog in a muzzle. He further said that the dog had attacked him and knocked him over and that he had been hit with a truncheon.
The applicant’s father was also questioned. He informed the court that the applicant had told him that the police had used a dog, tear gas and a truncheon against him.
M.G. stated that he did not remember anything about the events. Police officer D.K. said that he remembered the events. He deposed that the applicant had been a victim of an assault and that as far as he remembered, no physical force had been used against him.
The applicant’s father then stated that he wished to withdraw his request that the declaration signed by the applicant’s mother be included in the evidence, because the testimony given so far in the proceedings was, in his view, sufficient.
At the next hearing held on 7 November 2001 the court questioned two municipal guards, A.G. and A. U. They stated that they had been called by the police to assist in transporting the applicant and K.S., after they had been apprehended by the police, to the police station. There were police dogs at the scene, but the witnesses had not seen the circumstances of the arrest. The police officer P.M. stated that he and his colleagues had been astonished that a request had been made to bring proceedings against the applicant, because at the time of the events he had been regarded as the victim of the assault, not as the perpetrator.
M. S., the applicant’s colleague who had been with him at the stadium, stated that the applicant had been hit by K.S., who subsequently fled. The applicant had started to run after him. The police had let a dog loose and it had chased and attacked them both. The applicant was hit by a police truncheon.
The applicant’s mother stated that she had taken her son from the police station. He had had a black eye and told her that he had been attacked by K.S.
At a further hearing held on 23 November 2001 police officer J.P. said that he had not used a truncheon or gas; that the police dog had not been used against the applicant, and that the applicant had been the victim of the assault, not the perpetrator. K.S., the presumed perpetrator of the assault, refused to give evidence.
On the same day the court cleared the applicant of all charges and discontinued the proceedings. The decision became final on 12 December 2001.
By a letter of 13 February 2002 the applicant’s father complained to the County Police Headquarters in Ostróda that the police had wrongly instituted proceedings against the applicant. He requested information as to the disciplinary consequences for the officers concerned in respect of their failure to act in an appropriate manner. An internal police inquiry was later commenced to elucidate the circumstances of the case. Four police officers and four municipal guards were questioned and documents drawn up by the police in connection with the applicant’s arrest were examined.
In a summary of the findings made during the inquiry, dated 29 March 2002, it was stated that the applicant and K.S. had been arrested on 13 July 2001 for breach of public order, detained at the police station for two hours and given breathalyser tests. They had also been questioned. Subsequently the court referred to the proceedings held before the juvenile court which ended in an acquittal. The report went on to conclude that a procedural irregularity had been committed in that the police officer charged with the investigation had failed to question the officers involved in the events and that he had questioned both K.S. and the applicant, acting on the assumption that they had committed an offence, while there had been no good grounds to believe that the applicant had been the perpetrator of the offence. The attention of the officer charged with the investigation had been drawn, by way of an official instruction, to the irregularities committed in connection with the proceedings against the applicant.
The report was served on the applicant’s parents. On 15 April 2002 the applicant’s father complained that the findings of the inquiry had not been detailed enough. He reiterated that the police had erred in that the indictment against his son had been based on inadequate evidence and that certain evidence indicating that the applicant had not been a perpetrator but a victim had been concealed.
In a detailed note of 14 June 2002 the Olsztyn Regional Chief Constable reiterated the findings of the inquiry.
On 19 June 2002 the applicant’s father requested that criminal proceedings be instituted against the police officers involved in the case on charges of abuse of power. The alleged abuse consisted in the police having submitted a bill of indictment against the applicant to the juvenile court, on the basis of inadequate evidence. In particular, they had overlooked that the applicant had been a victim of the offence. The applicant’s father also complained that the police had used disproportionate force against the applicant at the time of the arrest.
On 19 July 2002 the Ostróda District Prosecutor refused to institute proceedings, acknowledging that the results of the internal inquiry had demonstrated that the decision to institute criminal proceedings against the applicant was erroneous. He went on to state that the deficiencies established in the inquiry had not amounted to a criminal offence and that the police officer had been reprimanded for the procedural irregularities that had been found.
On 8 August 2002 the applicant’s father appealed. Apparently later, following his appeal, the investigation was resumed.
On 25 October 2002 the applicant’s father submitted his pleadings. He reiterated his arguments that the proceedings leading to his son having been charged with an offence had been flawed, with serious procedural deficiencies arising out of the incompetence of the officers. In the five-page document the only reference to the alleged use of force against his son read:
“Why were a police dog and physical force in the form of gas and a truncheon used against my son?”
On 19 December 2002 the Ostróda District Prosecutor decided to discontinue the proceedings, finding that the police officers had no case to answer. The prosecutor first reiterated all the decisions given in the case thus far and briefly summarised their written grounds. It was further stated that it was true that M.M. had failed in his duties in that he had wrongly instituted proceedings against the applicant. However, the court had cleared the applicant of all charges and M.M.’s superiors had formally reproached him for lack of diligence.
As to the alleged use of force against the applicant, the prosecutor had regard to the testimony of the police officers that the applicant had not been hit with a truncheon. It was further noted that the allegation of use of force against him had not been confirmed by any medical evidence and that the applicant had not complained of this during the proceedings before the juvenile court. The prosecuting authorities concluded that no criminal offence had been committed.
The applicant’s father appealed.
On 27 January 2004 the Ostróda District Court dismissed the appeal. It observed that the proceedings concerned the charges of abuse of powers by the police on account of the alleged failure to conduct the proceedings against the applicant in compliance with the applicable procedural rules and their excessive use of force against him upon his arrest. The court considered that under the applicable laws concerning juvenile offenders it was for the police to undertake such procedural steps as were necessary to secure the basic evidence. Subsequent proceedings concerning criminal charges, with full guarantees applicable to judicial proceedings, were to be conducted by the juvenile court. This was also the situation in the present case, in which the police had secured the evidence by taking the applicant and K.S. to the police station and questioning them. Subsequently, requests for proceedings before the juvenile court were prepared. Later on, the proceedings concerning charges against the applicant and K.S. had been separately conducted before that court. The court, having regard to the ample evidence it had gathered, had cleared the applicant of all charges. It had not been demonstrated, either in these proceedings or later, in the course of the internal police inquiry, that the police officers had overstepped the limits of their powers or had acted incorrectly.
B. Relevant domestic law
Pursuant to Article 37 of the Juveniles Criminal Procedure Act of 1982 (“the Act”), the police are empowered to gather and secure evidence indicating that an offence has been committed by a juvenile offender, and also to arrest him or her if there is a reasonable suspicion that a criminal offence or any breach of public order has been committed. A juvenile suspect can be questioned by the police only in the presence of his or her parents.
Under Article 38 of the Act, a juvenile suspect is entitled to lodge a complaint with the juvenile court against any acts undertaken by the police or by other non-judicial authorities in connection with his or her arrest, and in connection with the gathering of evidence concerning suspicions against him or her.
The applicant complained under Article 3 of the Convention about the use of force by the police during his arrest on 13 July 2001, which amounted, in his view, to ill treatment contrary to this provision. He submitted that the Ostróda Public Prosecutor and District Court had erroneously discontinued investigations against the police officers who had made numerous procedural mistakes in the proceedings instituted against the applicant. As a result of these irregularities the authorities had found that they had no case to answer, in disregard of the fact that the use of force against the applicant was excessive and disproportionate in the circumstances.
The applicant further complained under Article 5 § 1 c) and d) of the Convention that the police had had no right to detain him at the police station, because he was not the perpetrator but the victim of the assault. His detention had therefore been unlawful. He submitted that the police had exceeded their powers as immediately after his arrest they had interrogated and examined him without his parents being present as required by law.
The applicant complained that the ill-treatment to which he had been subjected was 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.”
The Government submitted that the applicant had failed to exhaust all relevant domestic remedies. After his efforts to institute criminal proceedings against the police officers involved in the incident on 13 July 2001 had failed, he should have lodged a civil action for compensation under Articles 417 or 446 of the Civil Code. Since the police officers were “State officials” within the meaning of the first provision, the State Treasury was liable for damage caused by them. He could also have relied on the protection of his personal rights afforded by Articles 23 and 24 of the Civil Code. Under Polish law the mere fact that the criminal investigations had been discontinued had no bearing on the prospects of success of a civil action for compensation brought in respect of the same facts.
The applicant argued that he should not be required to have recourse both to civil and criminal remedies in respect of the alleged violation of Article 3 of the Convention. If there was more than one remedy available, the applicant should not need to use more than one. In the absence of a criminal prosecution against the police officers concerned, the applicant was not required to embark on another attempt to obtain redress by bringing an action for damages. In the light of the conclusions made in the criminal investigation, it was more than likely that the civil action would be unsuccessful.
The Court notes that the aim of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States an opportunity to put matters right through their own legal system before having to answer before an international body for their acts (see, among many other authorities, Egmez v. Cyprus, no. 30873/96, § 64, ECHR 2000 XII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of remedying directly the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).
In cases where an individual has an arguable claim under Article 3 of the Convention, the notion of an effective remedy entails, on the part of the State, a thorough and effective investigation capable of leading to the identification and punishment of those responsible (see Selmouni v. France [GC], no. 25803/94, § 79, ECHR 1999-V, and Egmez v. Cyprus, cited above, § 65).
Where there is a choice of remedies, the exhaustion requirement must be applied to reflect the practical realities of the applicant’s position, so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see Krumpel and Krumpelová v. Slovakia, no. 56195/00, § 43, 5 July 2005). Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were also available but probably no more likely to be successful (see Assenov and Others v. Bulgaria, 28 October 1998, § 86, Reports of Judgments and Decisions 1998-VIII; Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III; and H.D. v. Poland, no. 33310/96, 7 June 2001).
The Court notes that the applicant complained about the incident to the prosecution authorities, which opened a criminal investigation into the offence alleged. The Court does not find the applicant’s choice of procedure unreasonable. The applicant tried thereby to have the persons he believed guilty of criminal conduct towards him punished. Given that the authorities found that the persons concerned had no case to answer, the applicant should not be required to embark on another set of proceedings, which would serve an identical purpose and would not offer good prospects of the applicant’s being any more successful.
The Government’s plea of non exhaustion of domestic remedies must therefore be rejected.
The Government submitted that the investigation of the applicant’s complaints had not confirmed the allegations of ill treatment. After a thorough analysis of the evidence available to the prosecution, which included the testimony given by the applicant himself, by his father, by the police officers, by the municipal guards involved in the incident and by the applicant’s friend who had been present at the scene, the prosecution discontinued the proceedings. The authorities acknowledged that the results of the internal inquiry had demonstrated that the decision to institute criminal proceedings against the applicant had been erroneous. However, the veracity of the applicant’s assertion that he had been hit with a truncheon had never been proved. The evidence given by the applicant and by his friend had been contradictory, whereas the evidence given by the police and by the guards had been consistent. They had consistently stated that neither a truncheon nor a police dog had been used against the applicant. They had been used against K. S., who had been aggressive.
The Government averred that the use of force to which the police had resorted in the instant case in order to stop two minors from disrupting public order had been lawful and proportionate. Their arrest should be regarded as a measure strictly necessary for ensuring public order. The applicant had been released as soon as possible, immediately after basic investigative measures had been taken.
They finally submitted that the applicant had failed to submit evidence to show that he had suffered any injuries. Neither he nor his legal guardians requested that he be examined by a forensic doctor or by a GP. They further referred to the declaration signed by the applicant’s mother upon his release from the police station. The mere fact that the applicant had been treated as a perpetrator of a criminal offence and ultimately acquitted of all charges did not suffice for a finding that he had been ill treated contrary to the requirements of Article 3 of the Convention.
The Government concluded that the applicant’s treatment was based on the Polish law applicable at the material time and did not constitute ‘torture, inhuman or degrading treatment or punishment’ within the meaning of Article 3 of the Convention.
The applicant disagreed. He submitted that the testimony of his friend M.S. who had been an eyewitness to the material events had shown that during the arrest a police dog had been used against the applicant. He had also stated that one of the police officers had hit the applicant with a truncheon.
The mere fact that the evidence given by the police and by the guards had been concordant should not be seen as irrefutable proof that their statements were true. It was a known tendency on the part of the prosecuting authorities to regard the police as trustworthy witnesses. However, this did not mean that their submissions were true.
The applicant admitted that the applicant’s mother had not made any complaint about the use of physical force when she came to take the applicant from the police station. However, she had been in no position to know about it at the time. It was only later, after the applicant’s release, that he had told her about the use of a truncheon, police dogs and gas.
As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. It prohibits in absolute terms torture and inhuman or degrading treatment, irrespective of the victim’s conduct (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 IV).
The Court has consistently emphasised 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 mental effects and, in some cases, the sex, age and state of health of the victim (see Labita v. Italy [GC], no. 26772/95, 6 April 2000, §§ 119-20, ECHR 2000 IV).
The Court reiterates that 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 (Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336). However, 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). Where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch, cited above, p. 24, § 32). However, where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, p. 17, § 29). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006).
Turning to the circumstances of the present case, the Court notes that it is not in dispute between the parties that on 13 July 2001 the applicant was arrested at the rock concert and subsequently taken to the police station. It is not alleged that during his stay at the station he was subjected to ill treatment. The crucial issue to be determined is whether the police officers used excessive force when arresting the applicant.
The Court notes that the applicant was arrested by the police as the officers spotted him when he was involved in what they perceived to be a fight. The police took both the applicant and the other youth to the police station for questioning. Subsequently, after two hours, the applicant’s mother, his legal guardian, was called to take him home. The Court notes that she was at that time given an opportunity to comment on the applicant’s condition when he was leaving the police station. However, she did not make any relevant comment in the form provided for that purpose, or at any later stage.
The Court further observes that the applicant did not seek medical assistance with a view to establishing whether he had suffered any injuries as a result of the treatment complained of, either immediately after his release or even later on.
Against this background and in the absence of any medical findings relating to the applicant’s condition upon his release, the Court finds it impossible to establish beyond reasonable doubt that the applicant suffered any injuries at the time of his arrest.
The Court further observes that the domestic authorities did not limit their examination of the case to establishing whether the applicant had suffered injuries or not. In the proceedings before the juvenile court, during the inquiry conducted by the police and in the subsequent investigation following the applicant’s criminal complaint, they examined the circumstances of the applicant’s arrest with a view to making detailed findings concerning the applicant’s arrest and the use of force by the police.
The juvenile court questioned the applicant and his friend M.S., who was an eyewitness to the events concerned. The police officers involved in the arrest were also questioned. Likewise, the municipal guards and the applicant’s parents gave evidence. No evidence had come to light which would have indicated that the use of force against the applicant during the arrest was excessive. The only indication to this effect was M.S.’s statement that the applicant had been hit in the eye with a truncheon. Subsequently, in the police inquiry conducted at the applicant’s father’s request, four police officers and four municipal guards were questioned. Furthermore, an investigation was conducted into the charges against the police officers for alleged abuse of powers. The authorities noted certain discrepancies between various submissions concerning the use of force against the applicant during his arrest, but reached the conclusion that it had not been excessive, having had the benefit of seeing various witnesses give their evidence and of assessing 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, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1986, Series A no. 269, p. 17, § 30).
Lastly, the Court observes that in the overall assessment of the case it cannot overlook the fact that it was only on 13 February 2002, two months after the juvenile court had found that the applicant had no case to answer, the applicant’s father complained to the County Police Headquarters in Ostróda. It further notes that the gist of that complaint was that the police had abused their powers by wrongly instituting investigations into the applicant’s activities. This complaint did not refer to any allegations of ill treatment. It was only after the findings of the police inquiry had been made known that the applicant’s father requested, in his request of 19 June 2002, that criminal proceedings be instituted and complained that the police had used disproportionate force against the applicant at the time of the arrest. The late submission of the complaints concerning use of physical force against the applicant does not lend credibility to his assertions.
Moreover, the Court notes that in the subsequent proceedings, the main thrust of the arguments submitted on the applicant’s behalf concerned the alleged procedural flaws in the arrest, questioning and proceedings before the juvenile court. Only one very succinct reference was made to the use of physical force.
In so far as the applicant complained that the investigation instituted in order to clarify whether the treatment complained of had been deficient, the Court reiterates that where an individual raises an arguable claim of ill treatment 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., § 102).
In this connection, the Court notes that the police inquiry was conducted in order to elucidate the circumstances of the applicant’s arrest. As the applicant’s father was dissatisfied with its findings, he reiterated his complaint and the inquiry was opened again. A new report was produced, addressing the points raised by him. Dissatisfied with the outcome, the applicant’s father then requested that criminal proceedings be conducted on charges of abuse of authority. The police granted his request. Again, all police officers and municipal guards were questioned by the prosecution. Subsequently, the prosecution discontinued the proceedings, finding that the police officers had no case to answer. An appeal by the applicant against this decision was examined by an independent court which found no grounds on which to accept that either the proceedings or their substantive outcome were in breach of the applicable laws or otherwise open to criticism. There is no indication that the investigation of the applicants’ complaint, seen as a whole, was deficient or superficial.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The applicant further complained under Article 5 § 1 c) and d) of the Convention that his detention at the police station had been unlawful. He submitted that the police had exceeded their powers as immediately after his arrest they had questioned him without his parents being present as required by domestic law.
The Court notes that under Article 38 of the Act, a juvenile suspect is entitled to lodge a complaint with the juvenile court against any acts undertaken by the police or by other non-judicial authorities in connection with his or her arrest, and in connection with the gathering of evidence concerning suspicions against him or her. The applicant did not avail himself of this judicial remedy.
It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.
Having regard to the above considerations, the Court finds that the application as a whole is inadmissible.
For these reasons, the Court unanimously
Declares the application inadmissible.
Early Nicolas Bratza