(Application no. 14612/02)
31 March 2009
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 Wiktorko v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 10 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
The applicant submitted that she had remained in the cell, restrained by the belts, for approximately ten hours. The Government did not challenge this submission.
The relevant part of the certificate read:
A bloody bruise on the left hip, at the front, of approximately 3 cm in diameter, abrasion at the wrist at the elbow side; mobility and rotation of the shoulder limited (unclear whether passive or active movements concerned); the [applicant] complained of pain in her jaw at the left side; the jaw at that side swollen.
On 29.12.1999 Ms A. Wiktorko complained to the Town Police Station that on 27/28 December a taxi driver and the staff of the sobering-up centre had used physical force against her and insulted her. In her formal complaint that a criminal offence had been committed, which she submitted on 4 January 2000, she [explained] that on 27 December 1999 at 11 p.m. approximately a driver of a taxi No. [...] had first insulted her verbally and afterwards had taken her to the sobering-up centre where she had been detained against her will and physical force, resulting in bruises and scratches, had been used against her by the staff. A number of persons were requested to provide information, but no one confirmed the applicant's allegations. The taxi driver stated that Ms Wiktorko had been taken to the sobering-up centre because she had not wanted to pay the fare or to leave the taxi and that she had herself agreed to be taken there; while she could have left the taxi at any time; she was detained at the centre by the police, not by the taxi driver himself as she says; furthermore she did not want to have a breathalyser test but when she was already in the centre she did not want to undress herself and when she was put in the room for the patients she was hitting the door with her hands and other parts of her body inflicting injuries on herself so that restraining belts had to be used for fear that her life and health might be endangered.”
On 31 January 2000 the Olsztyn district prosecutor upheld this decision.
“During the investigation factual findings were made, witnesses were questioned, the [applicant's] medical records were examined and a medical expert was appointed with a view to establishing the injuries and circumstances in which they might have been sustained. It was established on the basis of this material that on 27 December 1999 Anna Wiktorko, having drunk alcohol and having refused to pay for the taxi, had been taken by the taxi-driver to [the sobering-up centre]. Afterwards she was taken, in the presence of a police patrol, to the building of the centre. Once she was inside, a decision was taken to detain her in the centre, regard being had to her behaviour which was vulgar and offensive towards those who were present there. As she did not want to comply with the regulations in force by taking a breathalyser test and by voluntarily undressing and changing into a gown, the staff used force against her in order to make her change her clothes and put her in a room for detainees. As she continued to be aggressive and to destroy property and could have harmed herself, she was put in restraining belts so that she could calm down.
The applicant's complaints were not confirmed by the witnesses. Her behaviour was reprehensible and it was necessary to put her in the sobering-up centre. It has not been established that physical force was used against her over and above what was necessary to calm her down. Hence, as there was no indication that a criminal offence had been committed the investigation has to be discontinued.”
“In the evening of 27 December 1999 [the applicant] called a taxi [...] After the trip a disagreement as to the amount of the fare to be paid arose between her and the driver. As the parties disagreed, [the driver] decided to solve the problem with the assistance of the police. After he had called the dispatch centre [of the taxi company], he drove to the vicinity of the sobering-up centre and waited for the police to come. They then waited for the patrol to come; at that time the driver entered the building of the centre, while the applicant stood by the taxi and also called the police from her mobile phone.
It is noted that the driver did not commit the offence of unlawful deprivation of property against the applicant, given that at that time both parties wanted to solve the problem with the assistance of the police; it is also noted that at that time the applicant could simply have walked away or used her phone.
After police officers A.R. and W.K. arrived at the scene, they tried to obtain a friendly resolution of the situation, but to no avail. Having regard to the vulgar and aggressive behaviour of the applicant, who smelled of alcohol, the officers decided that she should be detained in the sobering-up centre, where she refused to take a breathalyser test. Hence, the doctor on duty decided, on the basis of a general examination, that the applicant was in a state of intoxication justifying her detention for up to twelve hours.
Staff member M.P [a woman] subsequently tried to make the applicant change into a disposable garment.
As the applicant offered stubborn resistance, M.P. requested other members of staff, L. Z. and T.P. [men] to help her; the applicant was dressed in a gown with their assistance and put into the room for intoxicated persons.
The applicant continued to be aggressive; therefore physical force against her was used and she was put in restraining belts.
It transpires from the provisions governing the organisation of the sobering-up centres and job descriptions of the members of staff, the staff acted in compliance with law on the basis of the applicable legal provisions and there is therefore no basis for a well-founded suspicion that a criminal offence of unlawful deprivation of liberty or coercion had been committed.
On the basis of section 41 of the Law on Education ... in Sobriety and the Fight against Alcoholism and sections 19 and 20 of the ... ordinance a bill for PLN 250 was drawn for the applicant to pay for the costs of her detention.
It should be unequivocally stated that the conduct of the staff toward the applicant was lawful.
During the investigations all persons involved in the applicant's arrest and detention were questioned. The ample evidence gathered in the case did not give rise to a suspicion that a criminal offence had been committed.
Subsequently, the decision reiterated the findings of the medical report (see paragraph 3 above). The decision further read:
In her submissions the applicant complained that the staff of the centre had breached her dignity and ... Having in mind that the injuries which the applicant suffered and the insults can be examined in proceedings instituted by a private bill of indictment, it is open to the applicant to bring such a bill within 14 days from the service of the present decision.
II. RELEVANT DOMESTIC LAW
“1. Intoxicated persons who behave offensively in a public place or a place of employment, are in a condition endangering their life or health, or are themselves endangering other persons' life or health, may be taken to a sobering up centre or a public health care facility, or to their place of residence.
2. In the absence of a sobering-up centre, such persons may be taken to a [police station].
3. [Intoxicated] persons who have been taken to a sobering-up centre or a [police station] shall remain there until they are sober but for no longer than twenty-four hours. ...”
“1. A person taken to a sobering-up centre shall promptly be given a medical examination.
2. Following the medical examination, a doctor shall ascertain whether such person should be placed in a sobering-up centre ..., or should be placed in a hospital or other medical establishment ..., or whether there are no signs of intoxication justifying placement in a sobering-up centre.”
Its paragraph 13 (1) provided:
“A replacement garment shall be issued to all detained persons.”
“9 (2). A doctor shall recommend application of direct coercion in the form of immobilisation or isolation for a period of no longer than four hours. If necessary, the doctor, after personal examination of the patient, may extend the use of immobilisation for subsequent periods of six hours.
13. A nurse on duty shall check the state of the immobilised or isolated person no less frequently then every 15 minutes, including when the person is asleep. The state of the person shall be recorded on the [patient's] card without delay.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...”
1. Alleged ill-treatment of the applicant
(a) The parties' submissions
(b) The Court's assessment
The Court is of the view that the same considerations apply to the situation of the applicant in the present case, and with all the more force given that the two male members of the staff undressed her forcibly.
2. Alleged inadequacy of the investigation
59. The Court first notes that the investigation of the applicant's complaint lasted seven months, from January to August 2000. The prosecutor on two occasions quashed decisions to discontinue the investigation, considering that the conduct of the investigation had been flawed by significant procedural shortcomings. In her appeals the applicant complained about certain procedural shortcomings, such as the lack of access to the case file and the lack of an opportunity of confronting the witnesses, namely the staff of the centre. It is true that these were remedied after the decisions of 1 January 2000 and 19 April 2000 had been quashed and the investigation resumed.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(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 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 31 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Garlicki and David Thór Björgvinsson is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES GARLICKI AND DAVID THÓR BJÖRGVINSSON
To our regret we cannot share the position of the Chamber as to the inadequacy of the investigation.
As it transpires from paragraph 60 of the Chamber judgment, the finding of a procedural violation was linked to the fact that “the authorities investigated [the applicant's] allegations in too narrow a framework, and they deprived themselves of the possibility of assessing the proportionality of the force applied to the applicant from the standpoint of Article 3standards”.
Thus, there is no reason to blame the authorities for not establishing the basic facts of the case. In consequence, it would be difficult to apply the usual finding that “the investigation was superficial, lacked objectivity and ended in decisions which contained conclusions unsupported by a careful analysis of the facts” (see, for example, Lewandowski and Lewandowska v. Poland, no. 15562/02, § 74, 13 January 2009; see also Dzwonkowski v. Poland, no. 46702/99, § 66, 12 April 2007). It seems that, in the opinion of the Chamber, the violation resulted firstly from the fact that the “human dignity” aspect of the applicant's claim had not been separately assessed and addressed by the authorities and, secondly, from the fact that the investigation did not lead to any criminal charges against the personnel of the sobering-up centre.
We are not convinced that the investigation did not take into account the applicant's claims concerning infringements of her dignity. This aspect of the case was addressed initially in the decision of the regional prosecutor (7 June 2000) quashing the original decision to discontinue the investigation. The prosecutor observed that “any final decision in the case must formally address all the acts reported by the applicant, [hence also] the infringement of her dignity (inter alia, by stripping her naked)”. The district prosecutor, in the decision of 2 August 2000, followed that instruction but concluded, with reference to the applicant's complaint that the officers of the sobering-up centre had behaved in a manner violating her honour and dignity, that account should be taken of the fact that the applicant herself had the right to lodge a private bill of indictment in respect of that claim. Thus, the “human dignity” aspect did not escape the attention of the authorities, even if their conclusion was that all the measures taken in the sobering-up centre had been lawful and that, therefore, there was no ground to proceed with criminal charges.
It is true that the Court's assessment of the facts was different and that we found that the measures applied to the applicant had been disproportionately harsh. But this difference relates to the substantive aspect of the case and led to our finding of a substantive violation of Article 3. It cannot be carried over into the procedural assessment of the case. The domestic authorities could hardly be blamed for applying domestic standards of lawfulness and for concluding that a lawful action cannot lead to a criminal charge. It should not be forgotten that the nature of States' responsibilities under international law differs from that of the criminal liability of individuals. Thus, a violation of the Convention must not necessarily translate in each and every case into criminal proceedings against the person responsible.