(Application no. 9258/04)
12 May 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 Mrozowski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 16 April 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The events of 28 April 2002
One of the supporters, an acquaintance of the applicant, who had protested against the use of force against the applicant, was immobilised by the police officers on the platform and handcuffed.
“Condition after being beaten, wound to the jaw. Head injury. Condition after being beaten yesterday. He states that he was hit several times with a rubber truncheon on the head. He did not lose consciousness. Yesterday vertigo and nausea. Today no complaints. X-ray of the head and face with no changes. Difficulties in opening mouth, individual teeth knocked out. A consultation with a face surgeon is recommended. Further care in the district [hospital]. The wound stitched, examination by a surgeon in two days. Under observation for eight hours.”
“The patient came in the day after he had been beaten. Left cheek swollen. Fractured teeth nos. 4, 6 and 5. Tooth pulp exposed. Teeth loose, second degree.”
“[The applicant] was examined on 30 April 2002 and 2 May 2002.
1) Swollen and painful left cheek.
2) Wound to the chin on the right side, about 2 cm long, stitched.
3) Tooth cavities as described in the dentist's certificate of 29 April 2002.
[Medical certificates of 29 April 2002 listed and quoted.]
On the basis of the examination and the above-mentioned medical certificates it is established that the [period of] incapacity exceeds seven days.”
B. The criminal proceedings against the police officers
1. What injuries did the applicant sustain on 28 April 2002?
I establish on the basis of the medical certificates previously referred to that on 28 April 2002 the applicant sustained fractures of teeth 4 and 6 on the upper left side and tooth 5 on the lower left side, a chin wound and a swollen left cheek.
2. Could those injuries have been sustained in the circumstances described by the witnesses?
Yes, the injuries described above could have been sustained in the conditions and circumstances described by the witnesses, that is, as a consequence of a blow by a blunt and solid object that could have been a truncheon of the “tonfa” type.
3. Could they have been sustained during the arrest by police officers K. and C.?
Yes, those injuries could have been sustained during the arrest by those police officers.
4. Did those injuries cause incapacity for a period exceeding seven days?
The above injuries amounted to bodily harm resulting in incapacity for a period exceeding seven days within the meaning of Article 157§1 of the Criminal Code.”
“It appears from the statements of police officers C. and K. that the passengers on the train, the majority of them football supporters, did not comply with their orders. This gave them a ground to apply coercive measures and to use truncheons or handcuffs. Given the aggressive behaviour of the passengers those coercive measures corresponded to the exigencies of the situation and were necessary to ensure that their orders were obeyed.
[It should be concluded] that there is not sufficient evidence that the police officers overstepped their powers in breach of the interest of [the applicant]. Since [the applicant] sustained the injuries as a consequence of the police actions he could seek damages in civil proceedings, as the limitation period has not yet elapsed.”
“While it appears from the opinion of the forensic expert that the applicant's injuries could have been sustained as a consequence of the intervention of the police officers on 28 April 2002, nevertheless, in the light of the evidence collected, it cannot be established that police officers C. and K. overstepped their powers. They acted within their competence and the use of the coercive measures of truncheons and handcuffs corresponded to the exigencies of the situation; that is, to the aggressive behaviour of the passengers. The court considers that, contrary to the allegations made in the appeals, all the necessary steps were taken during the investigation in order to establish the objective truth.
The finding of whether or not [the applicant] had anything to do with the hooligans' actions, that is, the vandalism of the train, cannot have any bearing on the decision on the merits, in a situation where the police officers were intervening in connection with those events. They were carrying out their duties given the aggressive behaviour of the passengers on the train.
In the light of the above the court found that the impugned decision was correct and decided as in the operative part.”
C. The criminal proceedings against the applicant
“In reply [the applicant] had asked the police officer: “would you hit me, sir?” As [the applicant] had not complied with the order, police officer [K] used a coercive measure, i.e. the “tonfa” truncheon. A blow to the stomach caused [the applicant] to bend forward, and the blows which followed struck his face. Afterwards the applicant was laid out on the platform.”
On the basis of the testimonies of the applicant and other witnesses, which had been considered consistent and truthful, the court established that during the police intervention the applicant had displayed passive resistance and had not used force against the police officers. The court also dismissed the testimonies of the police officers regarding the circumstances in which they had used the truncheon against the applicant as lacking credibility and unconfirmed by other evidence.
It appears that no appeal was lodged against the judgment and that it is final.
II. RELEVANT DOMESTIC LAW
“1. Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] obey an order.
2. 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.”
“2. It is forbidden to use police truncheons against persons displaying passive resistance unless the use of force turns out to be ineffective.
3 (1) It is forbidden to hit or push with a truncheon against a [person's] head, neck, stomach and non-muscled and particularly delicate parts of the body...”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The parties' submissions
The applicant further submitted that the investigation into his allegations had not been effective as the prosecutor had discontinued the investigation against the police.
2. The Court's assessment
a) Alleged ill-treatment by the police
The Government acknowledged that the domestic law prohibited hitting a person in the face with a truncheon. However, they considered that the use of force by the police had been made necessary by the applicant's conduct.
There has accordingly been a substantive violation of Article 3 of the Convention.
b) Adequacy of the investigation
It should also be noted that there is no indication that since the applicant's acquittal in May 2007 the prosecuting authorities have at least considered resuming or re-opening the investigation into the applicant's allegations that he had been beaten up by the police officers.
II. 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 UNANIMOUSLY
(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, the following amounts to be converted into Polish zlotys at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,
(ii) EUR 1,700 (one thousand seven hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
Done in English, and notified in writing on 12 May 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza