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FOURTH
SECTION
CASE OF RACHWALSKI AND FERENC v. POLAND
(Application
no. 47709/99)
JUDGMENT
STRASBOURG
28
July 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 Rachwalski
and Ferenc v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 7 July 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 47709/99) against the Republic
of Poland lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Polish nationals, Mr Piotr Rachwalski and
Ms Agata Ferenc (“the applicants”), on 18 October 1998.
- The
applicants were represented by Mr Adam Bodnar, a lawyer practising in
Warsaw. The Polish Government (“the Government”) were
represented by their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs.
- The
applicants alleged, in particular, that they had been deprived of
their liberty during an unlawful search of their apartment and that
the police had used excessive and unjustified force towards them.
They complained of a breach of Articles 3, 5 and 8 of the Convention.
- By
a decision of 21 October 2008 the Court declared the application
partly admissible.
- The
applicants and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in born in 1973 and 1976 respectively and live
in Wągrowiec.
- The
parties do not fully agree about the facts of the case, which may be
summarised as follows.
1. As presented by the applicants
- The
second applicant lived with a group of friends, including the first
applicant, mostly students, in an old and decrepit house they had
rented in Wrocław. They occasionally invited their friends to
spend a night or a couple of days in their house.
- On
the night of 14 June 1997 there was a group of students sleeping in
the house. At 3 a.m. they were awakened by two police officers
patrolling the area. The police enquired whether the inhabitants knew
the owner of an unlocked car parked in front of the house.
- The
applicants and one of their friends, D. S., started a polite
discussion with the police officers about the car. It was confirmed
that one of the residents of their apartment was the owner of the
car. However, the police announced their intention of towing the car
away to the police car park. The applicants argued that it was not
forbidden or illegal to keep the car unlocked. At the police's
request, they produced their identity cards and the registration card
of the car, whose owner was asleep in the house.
- The
police were not satisfied with their explanation and the dispute
became more intense. In reaction to the opinions expressed
about the intervention, in particular by D. S., the policemen used
truncheons. They hit D. S. several times and handcuffed him. The
applicants tried to argue with the policemen, to no avail. The police
called other police officers and shortly afterwards approximately ten
other policemen arrived. They hit the first applicant with their
truncheons several times and the second applicant once. Thereupon D.
S. was taken to the police car where he was beaten. The applicants
were ordered to stand against a fence. They were pushed and jostled
and the policemen insulted them referring to them as “scum”,
“slobs”, “queers” (hołota, brudasy,
pedały).
- Subsequently,
a group of policemen, armed with truncheons and guarded by police
dogs, entered the house, woke up the other occupants and ordered them
to stand against the wall. Then the police searched the house. No
information was provided about the grounds, purpose or legal basis
for the search. During this time the police showered abuse on the
students. They pushed and shoved them. This lasted for about half an
hour. Afterwards, the police left the house and warned the students
that some of them were in an illegal situation as they were not
registered as inhabitants of the house, and threatened that they
would be in trouble if they submitted a complaint about the events.
- The
police left, taking D. S. with them.
- On
16 June 1997 the applicants requested to be examined by a forensic
medicine specialist. It was established that the first applicant had
two long bruises on his left arm, and other bruises on the palm of
his hand. The second applicant had a blue mark on her bottom (13 by 9
cm). It was stated that these bruises could have been caused by the
use of police truncheons.
2. As presented by the Government
- The second applicant and her friend D. S. lived in the
house with the owner's permission. They often received young visitors
from all over the country. On the night in question the unlocked car
parked in front of the house had seemed very suspicious to the
policemen A. C. and R. S., who thought it was stolen and considered
that it should be towed away. They had knocked at the window and the
second applicant informed them that the owner was in the house. She
first objected to the police action at night, and then went to look
for the owner of the car among the fourteen young people who were
sleeping in the house. The applicants behaved aggressively, loudly
expressing opinions about the purpose and nature of the intervention.
D. S. raised his voice to the police and pushed A. C.
- The police action was a result of the fact that the
applicants did not comply with the police requests to provide
necessary information. The applicants talked to the police with
raised voices and took a very active part in the struggle with the
policemen.
- The police officer had misinterpreted the first
applicant's intentions when he handed him his documents and had hit
him to prevent his being attacked. The applicant was most probably
hit once.
- The
atmosphere was tense. The owner of the car gave the police the keys
and documents to the car. As D. S. was unruly and continued to
express objections, the policemen decided to arrest him. While he was
being taken into custody by the police, he hit one of them in the
face. Thereupon truncheons were used against him. Given the attitude
of D. S. and of other persons present, the police called for
assistance. Two other police patrols and an emergency team arrived.
As the applicants were interfering with the arrest of D. S., they
were hit with truncheons.
- Police
officers D. R. and J. G. then entered the house to check the identity
of the persons present. After that, the intervention was terminated.
3. The prosecutor's investigation and conclusion
- On
16 June 1997 the applicants requested the Wrocław District
Prosecutor to institute criminal proceedings against the police for
abuse of authority. On 23 December 1997 the prosecutor refused to do
so. He found that no criminal offence had been committed.
- The
prosecutor considered that the police action had been justified. The
police could have reasonably suspected that the unlocked car had been
stolen, even though it had not been reported as such. The further
developments had certainly come as a surprise to both the police and
other persons involved in the incident. The second applicant had
objected in a pretentious tone (“pretensjonalny ton głosu”)
to having been woken up and to the check on the car taking place at
night. She had been informed that the car would be towed away if the
owner was not found. She could not locate the owner of the car, as
there were many people in the house who did not know each other. The
second applicant had woken all of them up in an attempt to find the
owner.
- D.
S. had objected in a loud voice to the police intervention. He had
insisted that the intention of the police was to harass the persons
in the house. As he had not obeyed the police requests to calm down
and the verbal exchange between him and the police officer A. C. had
become increasingly heated, it had been decided that he should be
taken to the police car. The prosecutor considered that this had been
justified in the light of D. S.'s aggressive behaviour. Given that D.
S. had been behaving aggressively, direct force had been used against
him, including the use of truncheons and handcuffs. It was true that
the applicants' versions of the facts diverged, and these divergences
could not be clarified on the basis of evidence from other witnesses,
but it was clear that, in the face of his resistance, it had been
necessary to use such force in order to take D. S. to the car.
- Given
the applicants' behaviour, the police had had to call assistance.
They had also felt threatened by the presence of other persons at the
scene of the incident. The applicants had been hit as they had
ignored the order to let D. S. go so that he could be taken to the
car. In the darkness, the police had not noticed that the first
applicant had in fact had his documents in his hand in order to show
them to the police, and they had thought that he intended to hit
them.
- It
was finally noted that the accounts of the facts given by the persons
present at the scene, other than the police, were highly divergent,
making it impossible to establish the facts of the case. However, the
testimony given by the policemen was coherent. Therefore, the
submissions of the other persons could not be considered credible and
had to be assessed critically.
- The
prosecutor concluded that the measures taken by the police had been
proportionate to the situation.
4. The appeal against the prosecutor's decision
- The
first applicant appealed. He argued that the police brutality and
aggression had been totally unjustified. Nothing in the behaviour of
the persons present had justified the use of force. The police had
entered private property and effected a search of the house without
any sound reasons, hitting and insulting the persons sleeping in the
house. He argued that he was a law-abiding citizen, a student of two
university faculties and a member of the Municipal Council of his
town. He had not given any reason to be beaten, verbally insulted and
humiliated just at the whim of the police. The police should not
intervene in private property at night and hit, insult and humiliate
people just because they looked, or lived, differently. The facts as
established by the prosecutor did not correspond to what had
happened. All the facts had been established on the basis of the
arguments of the police, who had apparently been instructed by police
lawyers as to what they should say. During the questioning the
prosecutor had made unpleasant remarks about the hairstyles, clothes
and views of the young inhabitants of the house, which had influenced
her decision to discontinue the proceedings. He submitted that the
police had humiliated both himself and the others.
- The
second applicant submitted that the assessment of the evidence had
been biased and that the police had clearly abused their authority,
insulting and humiliating her and other participants in the incident.
5. The outcome of the appeal
- On
20 May 1998 the Wrocław Regional Prosecutor upheld the contested
decision. He considered that the intervention of the police had been
justified in so far as they wanted to verify the identity of the
owner of the car. D. S. had behaved aggressively, both verbally and
physically. Regardless of whether he had intended to hit A. C. in the
face or not, his behaviour could have been perceived as an
intentional assault. It was for that reason that a decision to arrest
him had been taken. The identity check of the persons present in the
house had been necessary as they had insulted the policemen.
- The
social status of the young people, namely the fact that they were
students, imposed certain obligations on them, in particular an
obligation to cooperate with the police in the interest of law and
order.
- The
findings of the inquiry had not established that the students had
been insulted verbally by the police, as the policemen consistently
denied this. Nothing had been found to support the first applicant's
submission that the testimony of the policemen had been suggested to
them by the police lawyers.
- The
prosecutor concluded that the contested decision had to be upheld.
II. RELEVANT DOMESTIC LAW
- The
Code of Criminal Procedure contains the following provisions on the
search of premises by the police:
Article 221
§ 1 Searches of inhabited premises can be made
during the night only in cases when it is indispensable to carry out
such searches without delay. Night-time lasts from 10 p.m. until
6 a.m.
§ 2 A search which has commenced during the day can
be continued during the night.
§ 3 Only premises which are accessible at this time
to a particular person or persons, or premises designed for storage,
can be searched at night.
- The
police's powers regarding the use of coercive measures is regulated
by the Police Act of 6 April 1990 and by the Ordinance of the Council
of Ministers of 17 September 1990 setting out the conditions and
method of application of coercive measures.
- Pursuant
to section 14 of the Police Corps Act, within the limits of their
competence, the police are required – in order to examine,
prevent and detect offences and petty offences – to carry out
operational and reconnaissance activity, take part in an
investigation or inquiry, or carry out administrative activity and
safeguard public order. In the exercise of their powers the police
must respect human dignity and human rights (section 3).
- Section
16 of the Police Corps Act provides that if a person does not comply
with the lawful request of police officers they may apply such
coercive measures as, for instance, using truncheons.
- The
police are bound by the principle of minimal use of coercive
measures. In accordance with this principle the police must only use
such measures when they are absolutely necessary in the given
circumstances in order to enforce execution of orders issued by the
police (section 16 § 2).
- The
ordinance setting out the conditions, circumstances and method of
application of coercive measures by the police, issued on the basis
of section 16 § 4 of the Police Corps Act (Ordinance of the
Council of Ministers of 17 September 1990 on the Use of
Coercive Measures by the Police), indicates – among other
coercive measures – the use of truncheons.
Section
5 of the (“the 1990 Ordinance”) provides:
“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. ”
Section 13 of the Ordinance, in so far as relevant, provided at the
material time:
“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...”
- Pursuant
to section 142 § 1 of the Police Corps Act a police officer who
in the performance of official duties oversteps his powers and
violates the personal interests and dignity of a citizen, is liable
to imprisonment for up to five years.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained under Article 3 of the Convention that the
police conduct towards them had amounted to degrading treatment.
Article
3 of the Convention reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
1. The applicants
- The applicants argued that the police action had
constituted a penalty for their unconventional lifestyle. In their
opinion the policemen had intended to humiliate and harass them and
had acted with a sense of impunity.
- The applicants further submitted that they and their
friends had on several occasions been harassed by police officers who
apparently did not like their appearance. In view of the fact that it
had never been established that they had done anything against the
law, the applicants argued that the insults directed at them during
the incident had manifestly indicated prejudice on the part of the
police officers against them.
- The applicants argued that the use of truncheons
against them had been unjustified and excessive. Hitting one of the
applicants, a young woman, had been humiliating and punitive. They
disputed the Government's argument that their behaviour had been
aggressive and that one of the applicants had been hit only once by
the policemen.
- The
applicants submitted that they had been insulted, assaulted and
humiliated by having been expelled from the house by the policemen
using truncheons and police dogs and placed against the wall in their
pyjamas. They argued that the investigation had been opened only
after they had made repeated requests and following press releases
concerning the incident. The applicants also questioned the
impartiality and objectivity of the prosecuting authorities in the
conduct of the investigation.
2. The Government
- The Government argued that the applicants had not been
subjected to degrading treatment and that the police had made a
legitimate intervention in the applicants' case, showing due
diligence when performing their official duties.
- The Government submitted that the applicants had
disturbed the legitimate police action aimed at arresting one of the
students, who had assaulted a policeman and had actively resisted the
attempt to arrest him. The Government further stressed that the
police officer had misinterpreted the first applicant's intentions
when he held out his documents and had hit him to prevent a perceived
attack. In the Government's opinion, the applicant was most probably
hit once.
- According to the Government's further submissions, the
applicants did not comply with the police requests. The situation was
very tense and the applicants had talked to the police with raised
voices and taken a very active part in the struggle with the
policemen. However, the policemen had never intended to arrest the
applicants.
- The
Government emphasised that the police intervention had been
necessary. The applicants had behaved aggressively and had refused to
obey police orders. The use of direct force against them had
therefore been indispensable and proportionate.
- In
the Government's view, the level of suffering and humiliation in the
applicants' case did not reach the threshold that would justify the
applicability of Article 3 of the Convention.
- With
respect to the procedural aspect of the case, the Government argued
that the investigation had complied with the requirements of Article
3 of the Convention. In order to collect more evidence the prosecutor
had twice decided to extend the investigation. Twenty-eight witnesses
to the incident were interviewed and some of them confronted. In the
Government's view the investigation conducted by the public
prosecutor had been effective.
- The
Government also submitted that the applicants could have brought
private prosecutions against the police officers once the
investigation automatically conducted under section 142 of the Police
Corps Act had been discontinued.
B. The Court's assessment
1. General principles deriving from the Court's
case law
- As
the Court has held on many occasions, Article 3 of the
Convention enshrines one of the most fundamental values of democratic
society. It prohibits in absolute terms torture or inhuman or
degrading treatment or punishment, irrespective of the circumstances
and the victim's behaviour (see Labita v Italy [GC],
no. 26772/95, 6.4.2000, § 119, ECHR 2000 IV).
- The Court further recalls that, according to the
Convention organs' case-law, ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3 (see
Ireland v. the United Kingdom, judgment of 18 January
1978, Series A no. 25, p. 65, § 162). The same holds true
in so far as degrading treatment is concerned (see Costello-Roberts
v. the United Kingdom, judgment of 25 March 1993, Series A
no. 247-C, p. 59, § 30). As for the criteria
concerning the notion of “degrading treatment”, the Court
notes that the treatment itself will not be degrading unless the
person concerned has undergone humiliation or debasement attaining a
minimum level of severity. The assessment of this minimum level of
severity is relative; it has to be assessed with regard to the
circumstances of any given case (cf., among many authorities, Ireland
v. the United Kingdom, cited above, and Dougoz v. Greece,
no. 40907/98, § 44).
- It
is also recalled that treatment may be considered degrading if it is
such as to arouse in its victims feelings of fear, anguish and
inferiority capable of humiliating and debasing them (see Ireland
v. the United Kingdom, cited above, pp. 66-67, § 167).
Moreover, it is sufficient if the victim is humiliated in his or her
own eyes (see Tyrer v. the United Kingdom, judgment of 25
April 1978, Series A no. 26, p. 16, § 32, and
Smith and Grady v. the United Kingdom, nos. 33985/96
; 33986/96, § 120).
- Furthermore,
in considering whether a treatment is “degrading” within
the meaning of Article 3, the Court will have regard to whether its
object is to humiliate and debase the person concerned and whether,
as far as the consequences are concerned, it adversely affected his
or her personality in a manner incompatible with Article 3. Even the
absence of such a purpose cannot conclusively rule out a finding of a
violation of Article 3 (see Peers v. Greece,
no. 28524/95, §§ 67-68, ECHR 2001 III;
Valašinas v. Lithuania, no. 44558/98, § 101,
ECHR 2001 VIII; and Iwańczuk v. Poland,
no. 25196/94, § 52, 15 November 2001).
2. Application of the above principles to the present
case
- The
Court notes that in the present case police officers woke up the
applicants in the middle of the night to inquire about the ownership
of an unlocked car parked outside the house. It observes that the
young people who were sleeping in the house had not behaved in any
manner that could have disturbed the public order. The authorities
did not refer to any complaints by third parties about the conduct of
the occupants which might have triggered such a visible police
presence.
- The
Court further notes that two distinct phases can be distinguished in
the subsequent police intervention.
- The
first phase consisted in the exchange between two police officers,
the applicants and their friend D.S. The applicants and D.S. engaged
in a heated discussion with the police officers. The Court
notes the District Prosecutor's finding that at this stage the two
officers felt threatened (see paragraph 23 above) and used
truncheons. This sense of threat also prompted the officers to
use force against D.S. and to call for reinforcements.
- The
Court further notes that the second phase of events, after the
arrival of approximately ten other police officers with dogs, was
marked by a serious escalation in tension. The police officers
subsequently ordered all the applicants out of the house and stood
them against a wall, dressed in their night clothes. The Court notes
that it was at that moment that the police officers used
truncheons against the applicants. In the Court's opinion, the manner
of intervention of the police at that stage is particularly open to
criticism. It has not been shown or argued that the applicants at
that time had behaved in an aggressive manner which would
have warranted the use of truncheons against them. Nor has the Court
been presented with any evidence to show that at that juncture the
applicants had offered any physical resistance. It must be noted that
the young people, including the applicants, were at that time
confronted by a group of police officers, specially trained and
equipped to overcome physical resistance. Even assuming that when
remonstrating with the police they questioned the need to show their
identity documents or expressed objections as to the purpose of the
intervention, the use of truncheons against the applicants can only
be considered disproportionate to the situation. It cannot be ruled
out that at that stage the use of force against the applicants was
motivated rather by punitive intentions than by any genuine need to
break or discourage any physical opposition.
- The Court reiterates that recourse to physical force
against a person which has not been made strictly
necessary by his or her own conduct diminishes human dignity and is
in principle an infringement of the right set forth in Article 3.
Such a strict proportionality approach has been accepted by the Court
also in respect of a situation where an individual is already under
the full control of the police (see, among others, Klaas
v. Germany, 22 September 1993, § 30, Series A
no. 269; Rehbock v. Slovenia, no. 29462/95, §§
68-78, ECHR 2000-XII; Milan c. France, no.7549/03,
24 January 2008, § 68).
- Lastly,
the Court observes that in their submissions the Government confined
themselves to pointing to the lawfulness of the measures complained
of. They emphasised that the applicants had not complied with the
police requests and that the police officers has misinterpreted the
first applicant's intentions and had acted in order to prevent a
perceived attack. However, they did not explain what criteria had
been used to assess the necessity of the use of a police team with
guard dogs and truncheons to investigate a minor issue of an unlocked
car and in the absence of any aggression or behaviour disturbing the
public order on the part of the applicants. The mere fact that the
car was left unlocked in front of the house cannot, in the Court's
view, in itself constitute a good reason for a heavy handed
police intervention.
- The
Court, taking into account the circumstances of the incident as a
whole, is of the opinion that the applicants must have experienced a
profound sense of vulnerability, powerlessness and affront which can
reasonably be described as humiliating and therefore degrading within
the meaning of Article 3 of the Convention.
- Having
regard to this finding, the Court is further of the view that it is
not necessary in the particular circumstances of this case to examine
whether the procedural requirements under Article 3 have been
complied with.
- The
Court concludes that there has been a breach of Article 3 of the
Convention.
II. ALLEGED
VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants further complained that their right to respect for their
private life and home had been breached as the police officers had
broken into the house without any legal right to do so.
Article
8 of the Convention reads:
“1. Everyone has the right to respect
for his private ... life, his home ....
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The parties' submissions
1. The Government
- The Government submitted that the police had not
searched the house but had only entered it and requested the persons
inside to leave.
- The
Government argued that the applicants had voluntarily let the police
officers enter the house. They submitted that there was no proof that
a search of the house had taken place. They further argued that if
the applicants and the car's owner had complied quickly with the
police officers' request, there would have been no intervention.
2. The applicants
- The applicants rejected the Government's submissions
and maintained that the police officers had entered the flat at about
3 a.m. on 14 June 1997 by force without their consent and had
police dogs and truncheons with them. They had searched the premises
and escorted the occupants out.
B. The Court's assessment
1. General principles deriving from the Court's
case-law
- Article
8 of the Convention protects the individual's right to respect for
his private and family life, his home and his correspondence. A home
will usually be the place, the physically defined area, where private
and family life develops. The individual has a right to respect for
his home, meaning that an unauthorised entry into a person's home
would constitute a breach of that right (see, mutatis mutandis,
Hatton and Others v. the United Kingdom [GC], no. 36022/97, §
96, ECHR 2003-VIII).
- The
Court has consistently held that Contracting States have a certain
margin of appreciation in assessing the need for an interference with
the right to respect for one's home, but it goes hand in hand with
European supervision. The exceptions provided for in paragraph 2 of
Article 8 of the Convention are to be interpreted narrowly (see Klass
and Others v. Germany, 6 September 1978, § 42,
Series A no. 28), and the need for them in a given case must be
convincingly established.
- Undoubtedly,
in the prevention of crime it is of key importance that the relevant
authorities can act promptly and efficiently. The Court therefore
recognises that Contracting States may consider it necessary to have
recourse to measures such as forcible entry onto premises and house
searches in order to obtain evidence and, where appropriate, to
apprehend and prosecute offenders. Nonetheless, the relevant
legislation and practice must afford adequate and effective
safeguards against abuse (see, among other authorities, Crémieux
v. France, 25 February 1995, no. 11471/85, § 39).
2. Application of the above principles to the present
case
- The
Court notes that the facts concerning the entry into the applicants'
house are disputed by the parties. According to the applicants, a
group of police officers, armed with truncheons and guarded by police
dogs, entered and searched their apartment at about 3 a.m. on 14 June
1997. The Government argued that only two police officers had entered
the house.
- The
Court observes, however, that it is undisputed that, after the
atmosphere had become tense and the officers called for assistance,
two police patrols and an emergency team were involved in the
intervention. In the Court's opinion, considering that the police
officers had come to the applicants' house at night, it can
reasonably be concluded that the applicants were left with little
choice but to allow the police to enter the premises. It is difficult
to accept the Government's argument that, in the circumstances, any
consent given by the applicants was free. There has accordingly been
an interference with their right to respect for their home. That
interference will only be justified if it complies with the
requirements set out in Article 8 § 2 of the
Convention.
- In
that respect, the Court has regard to the fact that the applicants
were confronted by a number of police officers carrying truncheons
and accompanied by dogs at the front door of their house in the
middle of the night. No compelling justification was given by the
Government for the use of such visible force. It must be observed
that a risk of abuse of authority and violation of human dignity is
inherent in a situation such as the one which arose in the present
case. As the Court stressed in a similar case, Kučera
v. Slovakia (no. 48666/99, judgment of 17 July 2007),
safeguards should be in place in order to avoid any possible abuse in
such circumstances and to ensure the effective protection of a
person's rights under Article 8 of the Convention. Such
safeguards might include the adoption of regulatory measures which
both confine the entering of premises and prescribe relevant
procedural guarantees ensuring, for example, the presence of an
impartial person during the operation or the obtaining of the owner's
clear consent as a pre-condition to entering his or her premises.
- The
Court observes that certain guarantees to that effect are
incorporated in Article 221 of the Code of Criminal Procedure
and in the Police Corps Act. However, those guarantees failed to
prevent the situation complained of in the instant case from
occurring; the police did not seem to regard them as applicable or
relevant.
- The
Court further notes that, as indicated above, the police had come to
the applicants' door in order to ask them about an unlocked car
parked outside the house. It has already highlighted under Article 3
the total lack of justification for the police's heavy-handed
approach to the investigation into the ownership of the car. For the
Court, the decision to enter the premises can only be described as
disproportionate in the circumstances.
3. Conclusion
- In
view of the above considerations, the Court is not satisfied that the
action in issue was proportionate and compatible with the applicants'
right to respect for their home.
- There
has accordingly been a violation of Article 8 of the Convention
as a result of the entry by the police into the applicants' house.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants also complained that the conduct of the police officers
had infringed their right to liberty and security guaranteed by
Article 5 of the Convention.
Article 5
§ 1 of the Convention reads, in so far as relevant:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;”
- Bearing in mind its finding of a violation of
Articles 3 and 8 of the Convention, the Court does not consider
it necessary to examine whether the facts alleged also constituted
deprivation of liberty within the meaning of Article 5.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicants sought 4,000 euros (EUR) each in compensation for
pecuniary and non pecuniary damage they had suffered on account
of the alleged violation of Article 3 of the Convention and
EUR 4,000 each on account of the alleged violation of Article 8.
- The
Court accepts that the applicants suffered non pecuniary damage
and, making its assessment on an equitable basis, awards each of the
applicants EUR 2,000 under this head.
B. Default interest
- The
Court considers it appropriate that the default interest 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
Holds that
there has been a violation of Article 3 of the Convention;
Holds that
there has been a violation of Article 8 of the Convention;
Holds that it
is not necessary to examine separately the applicants' complaint
under Article 5 of the Convention;
- Holds
(a) that
the respondent State is to pay each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 2,000 (two 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 28 July 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
