European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF TARJÁNI v. HUNGARY

 

(Application no. 29609/16)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

10 October 2017

 

 

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 Tarjáni v. Hungary,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ganna Yudkivska, President,
          Faris Vehabović,
          Iulia Motoc,
          Carlo Ranzoni,
          Georges Ravarani,
          Marko Bošnjak,
          Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 12 and 19 September 2017,

Delivers the following judgment, which was adopted on the
last-mentioned date:

PROCEDURE

1.  The case originated in an application (no. 29609/16) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Attila Péter Tarjáni (“the applicant”), on 23 May 2016.

2.  The applicant was represented by Mr T. Fazekas, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent at the Ministry of Justice.

3.  The applicant alleged, in particular, ill-treatment during his arrest and whilst held in police custody, and the absence of an effective investigation in that respect.

4.  On 17 June 2016 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1976 and lives in Budapest.

A.  Alleged ill-treatment by police officers

6.  On 20 July 2015 a quarrel broke out between the applicant and his common-law wife, H.M. The latter called an ambulance because the applicant was under the influence of alcohol and was behaving oddly, and had a violent outburst.

7.  At about 4.40 p.m., instead of an ambulance, police officers E.Sz. and T.Z. appeared at the applicant’s flat, handcuffed the applicant and took him to the Orosháza police department, arriving there at about 5.10 p.m.

8.  According to the applicant he had no injuries when he was put into the police car. He was allegedly assaulted at the police station. While he was handcuffed and in the room for short-term arrestees, one of the three police officers present either kicked or pushed him from behind onto the floor. He hit his face and nose, which started to bleed. He also suffered injuries to his teeth. He fainted and when he regained consciousness, about fifteen minutes later, he found himself handcuffed to a bench, his knees hurting. His request for help was allegedly disregarded by the police officers at first, but when it became apparent that he could not walk, he was taken to hospital.

B.  Medical examination conducted on the applicant

9.  At 7.45 p.m. the applicant was examined by Dr CS.H. at Orosháza Hospital. He had bruises on the bridge of his nose and around his two wrists, abrasions on his right thigh, scratches below his left knee, and his left tibia was broken. He was hospitalised following the examination.

10.  On 22 July 2015 the applicant was examined by Dr CS.H. of the Department of Traumatology, and further injuries were noted on his body: bruises on his upper left arm, an abrasion around the right side of his collar-bone, scratches around the left side of his collar-bone, bruises on both sides of his hips, two loose teeth, one broken and one missing tooth in the upper jaw.

C.  Investigation into the applicant’s alleged ill-treatment

11.  The head of Orosháza police station of his own motion filed a criminal complaint against unknown perpetrators alleging “ill-treatment committed in the course of official proceedings”. The Central Investigation Office opened an investigation into ill-treatment committed in the course of official proceedings, assault causing actual bodily harm, and grievous bodily harm.

12.  In his testimony the applicant stated that he had been kicked from behind when taken into custody. At that time he had been handcuffed and had fallen onto his face on the floor, as a consequence of which his nose had started to bleed. He explained that he had remained unconscious for 15-20 minutes and when he had regained consciousness, his nose had been bleeding and he had felt pain in his knee. He had asked for help, but only when the police officers realised that he was unable to stand unaided had he been taken to hospital.

13.  H.M. was questioned as a witness. Describing the circumstances of the incident before the police arrived she stated that the applicant had not mentioned to her before the incident that he had hurt his leg. She also stated that on the day of the incident the applicant had been found by her daughter lying on the kitchen floor. She confirmed the applicant’s version of events in so far as she maintained that she had seen no injuries on the applicant when he was put into the police car.

14.  K.B., the daughter of H.M., also questioned as a witness, stated that on 20 July 2015 at around 12.30 p.m. she had found the applicant lying on the kitchen floor and not breathing. She proceeded to wake him up and could tell that he had been drinking alcohol. She had also seen the applicant earlier that day falling over in the yard, but he had sustained only minor injuries to his arm and leg.

15.  According to the police report, when the police officers arrived at the applicant’s flat, the applicant was sitting on the floor and was unable to communicate. He did not identify himself, despite the officers’ order. When the police officers tried to handcuff him, he resisted, swinging his head from side to side. He fell to the ground and his nose started bleeding. He could only be put in the police car with the use of force, and when inside it he kept insulting the police officers. At the police station he continued to behave aggressively and tried to hit his head against the floor. He therefore had to be handcuffed and laid on the floor. He was not injured during these measures and his handcuffs were removed when he calmed down at around 7 p.m. He refused to be examined by a doctor.

16.  The Central Investigation Office also questioned E.Sz. and T.Z. and two other police officers who had been on duty at the police station at the time of the applicant’s placement in the room for short-term arrestees, and a third officer who had come on duty at around 6 p.m. the same day. E.Sz. and T.Z. confirmed what was in the police report and the other three witnesses denied any knowledge of ill-treatment having been inflicted on the applicant. They all stated that the applicant had been drunk and had been handcuffed to prevent him causing harm to himself.

17.  The two members of the medical staff of Orosháza Hospital who had been present during the applicant’s treatment could not recall the event in detail but remembered that the applicant had not complained about ill-treatment by the police officers and, although limping, was able to walk unaided to the x-ray examination room.

18.  On 1 November 2015 the medical expert appointed by the Central Investigation Office expressed the opinion that the applicant’s leg had been broken one or two weeks prior to the incident and that it could not be determined whether the injuries to his teeth had been caused before or during his detention for questioning at the police station. According to the expert opinion, it was implausible that the applicant would have been capable of reconstructing the events of the day, owing to his drunkenness.

19.  On 17 December 2015 the Central Investigation Office discontinued the criminal proceedings for lack of any conclusive evidence (as regards ill-treatment committed in the course of official proceedings and assault causing actual bodily harm) and for the absence of a crime (as regards causing grievous bodily harm). According to the Investigation Office, it could not be established which injuries occurred during the police measures and whether they were caused by ill-treatment or the applicant’s own behaviour. The decision also stated that the applicant’s tibia could not have been broken during the incident and that the applicant’s credibility was questionable due to his drunkenness.

20.  The applicant filed a complaint against the discontinuation order. He maintained that his colleagues and supervisors, as well as the members of his household could have confirmed that he had no leg injury before the incident if they were heard as witnesses or if specific questions were put to them in this regard. He also submitted that Dr CS.H. (see paragraph 9 above) had been biased and questioned the credibility of the statement in the expert opinion of 1 November 2015 concerning his drunkenness (see paragraph 18 in fine above).

21.  On 18 February 2016 the chief prosecutor’s office dismissed the complaint. It endorsed the first-instance decision concerning the assessment of evidence and the legal classification thereof, informing the applicant of the possibility of pursuing substitute private prosecution proceedings.

II.  RELEVANT DOMESTIC LAW

22.  Act no. XIX of 1998 on the Code of Criminal Procedure provides as follows:

Chapter IX
Title III - Conduct of the investigation
Discontinuation of the investigation
Article 190

“(1) The public prosecutor shall, by decision, discontinue the investigation:

a) if the action does not constitute a criminal offence,

b) if, on the basis of the results of the investigation, the commission of a criminal offence cannot be established and no result can be expected from a continuation of the procedure,

...”

Title IV - Remedy during the investigation
Article 195

“(6) A motion for review may be filed with the public prosecutor’s office against [certain] decisions ..., and against a decision rejecting a complaint against a prosecutorial decision ... within eight days of delivery. The prosecutor’s office shall forward the motion for review and the case file to the court [i.e. the investigating judge] within three days.

Section 198 (1) If the criminal report was filed by the aggrieved party, he may submit a complaint against the rejection of the report within eight days of its delivery in order to have the investigation ordered.

(2) If the prosecutor terminated the investigation, the aggrieved party may file a complaint with a view to the continuation of the procedure within eight days of the delivery of the decision on discontinuation.”

Article 198

“(2) If the prosecutor terminates the investigation, the aggrieved party may file a complaint with a view to the continuation of the procedure within eight days of the delivery of the decision on its discontinuation.”

Article 199

“(1) On the basis of the complaint, the prosecutor or the senior prosecutor may:

a) quash the decision rejecting the report or terminating the investigation, and deliver a decision ordering or continuing the investigation or pressing charges;

b) reject the complaint if he finds it unfounded.

(2) After the rejection of his complaint, the aggrieved party may act as a supplementary private prosecutor if:

a) the report was rejected under section 174(1) a) or c), or

b) the investigation was terminated under section 190(1) a) to d) or f).”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

23.  The applicant complained about ill-treatment by the police and the absence of an adequate investigation. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Admissibility

1.  The parties’ submissions

24.  The Government asked the Court to declare this complaint inadmissible for failure to exhaust domestic remedies. They submitted that the applicant should have pursued substitute private prosecution proceedings. The alleged violation of the State’s procedural obligations - and in particular the obligation incumbent on the prosecution authorities to take the necessary steps to establish the criminal responsibility of alleged perpetrators - could have been remedied by pursuing substitute private prosecution proceedings.

25.  The Government also submitted that the Court’s findings in Borbála Kiss v. Hungary (no. 59214/11, §§ 25-26, 26 June 2012) and Gubacsi v. Hungary (no. 44686/07, §§ 31-32, 28 June 2011) were not applicable in the present case, since in those cases the reason for dismissing the Government’s preliminary objection of non-exhaustion of domestic remedies was the apparent legal uncertainty concerning substitute private prosecution proceedings. In the present case, however, the applicant had been informed by means of the decision of 18 February 2016 about the possibility of instituting private prosecution proceedings (see paragraph 21 above).

26.  The Government also argued that the admittedly low success rate of substitute private prosecution proceedings did not mean that this procedure was inefficient, since the dismissal of such applications was mainly due to non-compliance with the formal requirements of private prosecution.

27.  The applicant, for his part, submitted that the responsibility to pursue the prosecution of officers accused of ill-treatment lay with the public prosecutor, and there was no reason to require him to have pursued the prosecution of the accused officers of his own motion.

2.  The Court’s assessment

28.  The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for alleged breaches (see Pyrantienė v. Lithuania, no. 45092/07, § 26, 12 November 2013). The obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible (see Chiragov and Others v. Armenia [GC], no. 13216/05, § 116, ECHR 2015). An applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were likewise available but probably no more likely to be successful (see Hristovi v. Bulgaria, no. 42697/05, § 52, 11 October 2011 and the cases cited therein).

29.  The Court notes that in the present case the police chief of his own motion opened a criminal investigation against unknown perpetrators alleging ill-treatment in the course of official proceedings. Following the first-instance decision discontinuing proceedings (see paragraph 19 above), the applicant lodged a complaint seeking continuation of the investigations. There is nothing to indicate that the ensuing proceedings would not in principle have been capable of leading to the identification and, if appropriate, punishment of those responsible.

30.  In the Court’s view, by virtue of that remedy the State was afforded an opportunity to put matters right. The applicant must therefore be regarded as having brought the substance of his complaint to the notice of the national authorities and as having sought redress for his complaint through the domestic channels. He was thus not required in addition to pursue the matter by instituting substitute private prosecution proceedings, which would have had the same objective as his appeal against the discontinuation of the investigation (see, for similar reasoning, R.B. v. Hungary, no. 64602/12, § 62, 12 April 2016).

31.  In particular, the Court cannot subscribe to the Government’s view that in the cases of Borbála Kiss and Gubacsi the applicants were not required to pursue private prosecution proceedings because of the uncertainty prevailing at that time concerning the effectiveness of that legal avenue. Rather, it was the fact that the applicants had already lodged a criminal complaint concerning the alleged ill-treatment that led the Court to conclude that they could not be expected to have lodged a second, virtually identical complaint mentioning particular individuals by name (see Borbála Kiss, cited above, § 26, and Gubacsi, cited above, § 32).

32.  It follows that the Government’s preliminary objection must be dismissed. Furthermore, the Court notes that the complaint is not manifestly ill-founded, within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

33.  The applicant maintained that he had been ill-treated by police officers on 20 July 2015. He insisted that he had not had any injuries before being taken to the police station and that the Government’s explanation as to the origin of his broken tibia was implausible. He pointed out that none of the witness testimonies given by his relatives had mentioned that he had had injuries prior to his arrest. Furthermore, the forensic expert opinion, commissioned almost four months after the incident, relied solely on and reiterated the conclusion of the medical report issued at Orosháza Hospital, without any actual analysis of the medical documents, in particular the x-ray of his leg.

34.  As regards the further injuries he had described, he submitted that the Government had failed to establish how they had occurred and the conclusion that they had been the result of a lawful police action was therefore contradictory.

35.  The applicant also pointed out that the findings concerning his self-harming conduct under the influence of alcohol and his resistance to the police measure had been based exclusively on the testimonies of the police officers, which had necessarily been biased.

36.  He also maintained that his version of the events, and in particular the fact that he had had no injuries prior to the police measure, could have been supported by a number of witnesses, whose names he had provided but whom the investigation authorities had failed to question.

37.  The applicant also submitted that the investigations into his allegations of ill-treatment had been manifestly incompatible with the procedural requirements of Article 3 of the Convention. While it was for the State to provide a plausible explanation as to the cause of his injuries and to prove that any recourse to physical force had been unavoidable, in his case the prosecution authorities were not exempted from their responsibility to conduct an effective investigation into the circumstances that led to his injuries.

38.  In particular, they should have appointed another forensic expert to clarify the discrepancies between the expert opinion of 1 November 2015 and his own statements. They should also have verified whether the applicant had been treated for his broken tibia prior to the incident.

39.  Moreover, the cause of his injuries could not have been established because the police had failed to provide him with medical assistance for more than two hours following the impugned incident.

40.  Furthermore, even though there were clear discrepancies between the witness statements, no face-to-face confrontation had been organised between him and the police officers and none of the witnesses put forward by him in his appeal had ever been questioned.

41.  The Government denied the applicant’s allegations and submitted that it could not be established that the injuries had been inflicted by the police officers. On the contrary, the domestic inquiry and the medical report of 1 November 2015 had suggested that the injuries could have occurred prior to the incident or that the applicant could have inflicted them on himself. Moreover, the medical expert opinion established without doubt that the applicant’s tibia had been broken for weeks prior to the incident. According them, it could also be excluded that the injuries to his teeth had occurred during the applicant’s arrest since they were not mentioned in the medical report of 20 July 2015. In any event, it was highly unlikely that the applicant, having been in a heavily drunken state, would be able to recall the events.

42.  The Government further observed that the applicant’s explanation was not supported by the testimony given by the police officers or by H.M., who alluded to another possible explanation as to the cause of the injuries (see paragraphs 13 and 16 above).

43.  The Government submitted that the applicant had been under the influence of alcohol, had engaged in self-harming behaviour, and had offered resistance while obstructing a police measure, in response to which the police officers had had to apply force. The force used by the police had been necessary and proportionate and the injury caused by the police had thus occurred in the course of carrying out a lawful police measure.

44.  Moreover, the applicant’s allegations had been adequately investigated by the Hungarian authorities, but the evidence obtained had not been sufficient to establish the police officers’ criminal responsibility. This evidence had been assessed freely, separately and collectively, in accordance with the provisions of the Code of Criminal Procedure.

45.  In particular, the authorities had questioned the applicant, Dr Cs.H, the police officers on duty and the officers who carried out the applicant’s arrest, and the members of the applicant’s household, H.M. and K.B. They had obtained the medical files from Orosháza Hospital, and from other hospitals where the applicant had been treated subsequently and had also commissioned a forensic medical expert opinion. Taking the witness testimonies into account, the Government maintained that there was no reason to depart from the conclusions of the domestic authorities as to the origins of the applicant’s injuries. They also rebutted the applicant’s allegation that the forensic medical expert had been biased, pointing out that his findings concerning the applicant’s drunkenness had been substantiated by the witness testimony of the applicant’s common-law wife and her daughter.

46.  As regards the failure to appoint another forensic medical expert and the lack of face-to-face confrontation, the Government argued that under the Code of Criminal Procedure, these measures were not mandatory but only necessary if certain conditions were met, which had not been the case in the present investigations. The expert opinion had been neither incomplete nor unclear or self-contradictory. Similarly, the investigation authorities had had no grounds for conducting face-to-face confrontations as they would not have produced any result.

2.  The Court’s assessment

(a)  Alleged breach of Article 3 under its substantive limb

47.  As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim’s behaviour (see Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015).

48.  The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nevertheless, when allegations are made under Article 3 of the Convention, the Court must apply particularly thorough scrutiny, even where domestic proceedings and investigations have already taken place. The Court further reiterates that in assessing evidence it has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Lunev v. Ukraine, no. 4725/13, §§ 98-100, 22 October 2015 and the cases cited therein, and also Bouyid, cited above, § 82).

49.  The applicant stated that he had no injuries before his arrest; this was corroborated by the witness testimony of his common-law wife, who declared that before the incident the applicant had not mentioned that he had hurt his leg and that she had seen no injuries on him when he was put in the police car (see paragraph 13 above). However, as is apparent from the decision of 17 December 2015, the broken tibia documented in the medical files and in the forensic expert report did not support the applicant’s allegations regarding the origins of that injury. According to both documents, it must have occurred prior to the incident.

50.  As regards the other injuries, none of the documents submitted to the Court contains reliable and conclusive information showing that the injuries observed on the applicant on 20 and 22 July 2015 were inflicted while he was in the hands of police following his arrest. In addition, according to the witness testimony of K.B., prior to his arrest, the applicant had fallen over in his yard and had sustained minor injuries to his arm and leg (see paragraph 14 above). Moreover, the Court notes that the applicant’s account and that of the police officers differed considerably (see paragraphs 12 and 16 above) concerning the circumstances of the applicant’s arrest in his home and the circumstances of the police custody. As a consequence, none of them can be considered to provide conclusive evidence as to the possible cause of the applicant’s injuries.

51.  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. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Bouyid, cited above, § 83). Whereas in the Bouyid case it was not disputed that the applicant did not display any marks of injuries on entering the police station, the present case is different. According to the forensic expert, the applicant’s main injury, namely his broken tibia, predated his arrest of 20 July 2015 (see paragraph 49 above). There are also indications that further minor injuries on the applicant’s leg and arm likewise occurred prior to the incident (see paragraph 50 above). Therefore, it cannot be established that the events entailing the applicant’s injuries lied wholly, or in large part, within the exclusive knowledge of the authorities, and it is not evident that the applicant was in good health when taken into police custody. Against this background, and in contrast to Bouyid, no strong presumptions of fact arise in respect of injuries occurring while the applicant was within the control of the police, which would be necessary for the burden to shift onto the Government to explain how the injuries were caused and produce evidence casting doubt on the veracity of the applicant’s allegations.

52.  In such circumstances, given all the information in its possession, the Court cannot conclude “beyond reasonable doubt” that the applicant’s injuries were caused by police officers, as stated by the applicant. Therefore, a violation of the substantive limb of Article 3 of the Convention is not established.

(b)  Alleged breach of Article 3 under its procedural limb

53.  The Court refers to the general principles set out in El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, §§ 182-185, ECHR 2012) and Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, §§ 316-326, ECHR 2014 (extracts)).

54.  In the present case, the Court finds that the applicant’s injuries were serious enough (see paragraphs 9 and 10 above) and that his complaint of ill-treatment was arguable for the purposes of Article 3, thus requiring the domestic authorities to carry out an effective investigation.

55.  It further observes that independent investigations were launched and carried out into the applicant’s allegations. In the absence of independent eyewitness testimonies, the prosecutor’s inquiry focused on the examining of the statements made by the applicant and the members of his household (K.B. and H.M.), and questioning the medical staff who were present during his hospitalisation, the police officers who carried out the applicant’s arrest, and the police officer who had been on duty at the police station at the time of the applicant’s arrest. The prosecutor also took into account the medical report issued by Orosháza Hospital and other subsequent medical records. In addition, a forensic expert was appointed to clarify the nature and possible cause of the applicant’s injury. In any case, the prosecutor decided that there was insufficient evidence against the police officers on which to mount a successful prosecution. The investigation was accordingly discontinued.

56.  The version of the facts was based essentially on the police officers’ submissions whilst no sufficient efforts were made to verify the applicant’s version. Thus, the medical report of 1 November 2015, which considered it unlikely that the applicant would be able to reconstruct the events of the day owing to his drunkenness and which was referred to by the authorities, provided no elements on the basis of which it established more than four months following the incident that the applicant had been drunk to the extent that he could not remember the details of the police measure. The Court also notes in that regard that despite the expert’s conclusion that the applicant’s leg injury predated the events, that contradicted the applicant’s version, the domestic authorities did not find the applicant’s account to be inconsistent or contradictory, but nonetheless proceeded on the assumption that the applicant was unable to recall the events (see paragraph 19 above).

57.  The Court further finds that the forensic expert opinion did not exclude the applicant’s account of the events either, with the exception of the origins of the applicant’s leg injury. As to the latter, the investigation authorities made no further attempt to clarify the contradictions between the conclusion of the medical report and the testimonies of the applicant and his common-law wife. Amongst others, they did not take any measures to hear evidence from the witnesses which, according to the applicant, could have confirmed the lack of any previous injury (see paragraph 20 above). Similarly, no further measures were taken with a view to resolving the discrepancy between the police officers’ version of events, according to which the applicant had inflicted the injuries on himself, and the allegation that the injuries had been caused as a consequence of the legitimate use of force to overcome the applicant’s resistance. A possible investigative measure in this respect could have been to organise a face-to-face confrontation in order to assess the credibility of each side’s statements as regards the facts.

58.  Furthermore, the expert opinion of 1 November 2015 was entirely based on the written medical records of 20 and 22 July 2015 (see paragraphs 9 and 10 above). Moreover, although there were considerable differences in the injuries documented in the medical report of 20 July 2015, that only noted bruises on the applicant’s nose and wrists, abrasions on his right thigh, scratches below his left knee, and his broken left tibia (see paragraph 9 above), and that of 22 July 2015, that also noted bruises on the applicant’s upper left arm, an abrasion around the right side of his collar-bone, scratches around the left side of his collar-bone, bruises on both sides of his hips, two loose teeth, one broken and one missing tooth in the upper jaw (see paragraph 10 above), the expert opinion gave no explanation as to these discrepancies. It gave no details about the possible origin of the injuries either, addressing for example the mechanism of their infliction. It could neither confirm nor exclude the applicant’s version of the incident. Despite the non-conclusive nature of this evidence and its discrepancy with the applicant’s testimony, the domestic authorities made no attempt to obtain an additional opinion of a medical expert, addressing how the injuries could have occurred and resolving to the contradiction between the different explanations as to the applicant’s leg injury.

59.  Given the above, the Court finds that the authorities have not done all that could have been reasonably expected of them to investigate the incident.

60.  Accordingly, the Court finds that the domestic authorities failed to carry out an effective investigation into the applicant’s complaint and that there has therefore been a violation of Article 3 of the Convention in its procedural limb.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

61.  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

62.  The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage.

63.  The Government contested that claim.

64.  Taking into account all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

B.  Costs and expenses

65.  The applicant also claimed EUR 3,900 plus value-added tax (VAT) for the costs and expenses incurred before the Court. This corresponds to thirty hours of legal work by his lawyer charged at an hourly rate of EUR 130 plus VAT.

66.  The Government contested this claim.

67.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 for the proceedings before the Court.

C.  Default interest

68.  The Court considers it appropriate that the default interest rate 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,

1.  Declares the application admissible;

 

2.  Holds that there has been no violation of Article 3 of the Convention under its substantive limb;

 

3.  Holds that there has been a violation of Article 3 of the Convention under its procedural limb;

 

4.  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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 3,000 (three thousand 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;

 

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 10 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Marialena Tsirli                                                                  Ganna Yudkivska
       Registrar                                                                              President