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FOURTH
SECTION
CASE OF STASZEWSKA v. POLAND
(Application
no. 10049/04)
JUDGMENT
STRASBOURG
3 November
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 Staszewska 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,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 13 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10049/04) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Ms Izabela Staszewska (“the
applicant”), on 5 March 2004.
- The
applicant was represented by Mr Zbigniew Cichoń, a lawyer
practising in Cracow. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs.
- The
applicant alleged, in particular, a violation of Article 3 of the
Convention on account of ill-treatment during her arrest by the
police.
- On
24 January 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Szczecin.
A. The alleged ill-treatment of the applicant during
her arrest
1. Facts as presented by the applicant
- In
the early hours on 2 June 2001 the applicant and her friend J.D. were
coming back from a party in Cracow. At a certain point they stopped
because the applicant wanted to collect some leaves from an oak tree;
she is a painter and she needed them to produce dye for her work. As
they approached the tree, a police car stopped near them. Two
uniformed policemen got out of the car and asked the applicant and
her friend what they were doing there. The applicant asked what
she was suspected of and what the policemen wanted from her. She
asked them to show their badges. The policemen refused.
- Then the applicant and her friend were asked to show
their identity cards. J.D. did not have his identity card on him;
however, he gave the policemen his personal details. The applicant
refused, saying that she did not have her card on her and that she
did not trust the Polish police. Then she said that she would not
speak to them any longer and tried to walk away. Subsequently, she
was informed that the process of establishing her personal details
had not been finished and was warned that coercive measures would be
used and that she would be taken to a police station if she persisted
in her refusal. Then the policemen took her by both arms and brought
her to the police car, parked nearby. The applicant resisted arrest
by trying to get away, kicking and shouting. After she was brought to
the car, she refused to get in. The two policemen called another
police car and two other policemen arrived. Then the applicant was
pushed into the car, laid on the floor and held down by the weight of
the policemen's bodies. While she was being pushed into the car,
kicking and shouting, one of the policemen was accidently hurt by a
walking-length umbrella that the applicant was holding.
- Subsequently,
the applicant was handcuffed behind her back and taken to the police
station. She refused to give a sample of her breath, saying that she
suffered from asthma and bronchitis. She was taken to an accident and
emergency service, where she refused to undress for a medical
examination. Then she was taken to a sobering-up centre where she
underwent a breath test, which showed a blood-alcohol level of 0.04
‰. The doctor refused to keep the applicant in the sobering-up
centre. She was taken back to the police station, where she
apparently underwent another breath test. Subsequently she was taken
to the police detention centre (izba zatrzymań). As
emerges from the record of arrest (protokół
zatrzymania osoby) the applicant did not appeal against the
decision on her arrest and did not ask for a lawyer. She refused to
sign the record of arrest.
- In
the police detention centre a policewoman told the applicant that she
had to undress to undergo a body search in order to check whether she
had any dangerous objects on her. The applicant refused, but as the
policewoman allegedly warned her that she would be undressed by
force, she eventually agreed. The applicant was then placed in a cell
without a mattress. She had to spend the night on a concrete floor
without her jacket, which had been taken away from her because it had
a cord which might serve as a dangerous object. Only after some time
was she given a blanket. She was refused permission to go to the
toilet.
- On
2 June 2001, at an unspecified time during the day, the applicant was
released.
- On
the same day, at 21.55, the applicant went to an accident and
emergency service in Cracow, where she was examined by a doctor.
- According
to a medical certificate from that examination the applicant had
bruises on her chest and both arms, a haematoma on the left arm,
bruises on the left hip and a haematoma on her left foot.
2. Facts as established in the investigation against
the policemen for abuse of authority
- There
are no discrepancies in the facts until the moment the applicant was
asked to show her identity card. She refused, saying that she did not
have her card on her, and tried to walk away. Subsequently, she was
warned that coercive measures would be used and that she would be
taken to a police station if she persisted in her refusal. Then the
policemen took her by both arms and brought her to the police car,
parked nearby. The applicant resisted arrest by trying to get
away, kicking and shouting. After she was brought to the car, she
refused to get in. The two policemen called another police car and
two other policemen arrived. They “helped carry out the
intervention”. When the applicant was in the car, she suddenly
hit one of the policemen in his mouth with the ferrule of her
umbrella.
- Alternatively, according to the criminal court which
conducted proceedings against the applicant (see below), the
applicant had calmed down before being “put in the car”.
After that she hit one of the policemen with her umbrella.
- There
are no discrepancies as regards facts which occurred in the accident
and emergency service and the sobering-up centre.
- Subsequently,
in the police detention centre, two policewomen told the applicant
that she had to remove her clothing to undergo a body search. The
policewomen, who were questioned later in the course of
investigation, said that the strip search had been carried out in
accordance with the relevant procedures and denied that it could be
humiliating for the applicant.
3. The investigation concerning the applicant's arrest
- On
an unspecified date the applicant's lawyer applied to the Cracow
District Prosecutor for the prosecution (wniosek o ściganie)
of the police officers who had arrested the applicant.
- On
30 May 2003 the Cracow District Prosecutor discontinued the
investigation, finding that the policemen's acts did not constitute
the offence of abuse of authority. The prosecutor relied on
statements given by a number of witnesses, including the applicant's
friend J.D. who had presented the circumstances of the case “in
a way similar to the applicant's version”. J.D. however did not
see what happened after the applicant had been placed in the police
car. He said that only at the police station had he noticed that one
of the police officers was hurt on his face and that he had found the
wound “superficial”. The Prosecutor relied also on an
expert opinion produced in the course of the investigation, according
to which, as a result of the police intervention on the night in
question, the applicant had bruises on both her arms and a haematoma
on her left arm, bruises and a haematoma on her left foot, bruises on
her left hip and a sprained right wrist. The
above symptoms and physical state caused her health to be impaired
for a period shorter than seven days within the meaning of Article
157 § 2 of the Criminal Code. As regards the body
search of the applicant, the prosecutor invoked the provisions of the
1990 Police Act and Order no. 7/94 of the Chief Police
Commandant (Komendant Główny Policji) of
10 November 1994, which provided for the detailed examination of
the clothes, shoes and underwear of arrested persons for any objects
which could be dangerous to their own or another's health or life.
- On
16 June 2003 the applicant's lawyer appealed, asking that the
evidence in the file of the criminal proceedings against the
applicant, which were pending at that time (see: “Criminal
proceedings against the applicant”, below), be examined. In the
applicant's lawyer's view, it was relevant for the present
proceedings that the case against the applicant had been remitted by
the second-instance court for re examination. He also wanted the
court to compare the evidence given by the police officers in both
sets of proceedings. In his appeal the applicant's lawyer did not
refer to the fact that at the police detention centre the applicant
had allegedly been refused permission to go to the toilet and that
she had had to spend the night on a concrete floor without any cover.
- On
14 October 2003 the Cracow District Court (Sąd Rejonowy) held
a hearing and rejected the applicant's lawyer's application. The
court found that it was not bound by a judgment given in the criminal
proceedings against the applicant and that the question whether or
not the applicant had committed the offence of forcibly resisting
arrest was irrelevant for the assessment of whether the police
officers had abused their authority.
- On
the same day the Cracow District Court upheld the prosecutor's
decision.
B. Criminal proceedings against the applicant
- On
an unspecified date the applicant was charged with resisting lawful
arrest.
- On
25 June 2002 the Cracow District Court convicted the applicant as
charged and ordered her to pay a fine.
- On
an unspecified date the applicant's lawyer appealed.
- On
1 July 2003 the Cracow Regional Court (Sąd Okręgowy)
quashed the first-instance judgment and remitted the case for
further examination. The court found that the circumstances of the
case had not been properly established and the applicant's injuries
could not have been caused by her being placed in the police car in
the way described by the police officers.
- On 24 March 2004 the Cracow District Court, having
re-examined the case, again convicted the applicant and ordered her
to pay a fine. The District Court did not directly refer to the
shortcomings of the proceedings found on appeal by the Regional
Court. However the judgment, in its extensive reasoning, contains a
detailed description of the circumstances of the case. The applicant
was found guilty of resisting lawful arrest by, inter alia,
hitting one of the policemen with an umbrella and hurting his lip and
kicking the police officers.
- On
an unspecified date the applicant's lawyer appealed again.
- On
12 April 2005 the Cracow Regional Court upheld the first instance
judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Use of force by the police
- The
regulations on permissible use of direct coercive measures by the
police are laid down in section 16 of the Police Act, which provides
that in situations in which a police order is not obeyed, such
measures can be resorted to only in so far as they correspond to the
requirements of a particular situation and in so far as they are
necessary to obtain compliance with that order.
- Article
5 § 1 of the Ordinance of 17 September 1990 on the use of
coercive measures by the police provides that direct physical force
can be used to overpower a person, to counter an attack and to ensure
compliance with an order. When such force is being used, it is
forbidden to strike the person against whom the action is being
carried out, except in self-defence or to counter an attack against
another person's life, health or property.
B. The order of the Chief Police Commandant
- Order no. 7/94 of the Chief Police Commandant of
10 November 1994 is neither an act nor a regulation which is
published in the Journal of Laws (Dziennik
Ustaw). Thus it is an
internal police document and not accessible to the public.
C. Article 157 of the Criminal Code
- Article
157 of the Criminal Code sets the threshold between minor and more
serious bodily injury or impairment to health. According to that
provision, if the bodily injury or impairment to health lasts less
than seven days, the perpetrator is subject to a fine, the penalty of
restriction of liberty or deprivation of liberty for up to two years.
In such case the prosecution occurs upon a private charge. If the
bodily injury or impairment to health lasts longer than seven days,
the perpetrator is liable to a heavier penalty.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that she had
been ill-treated in the course of her arrest. She alleged that the
arresting police officers had caused her injuries by using
disproportionate force and had violated her dignity.
- Furthermore,
the applicant complained that the authorities had not convincingly
explained the reasons for her injuries.
- Article
3 of the Convention provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. Exhaustion of domestic remedies
- The
Government argued that the applicant had not exhausted all the
available remedies since she could have appealed against her arrest
on the grounds contained in Article 246 of the Code of Criminal
Procedure.
- The
applicant's lawyer did not comment.
- The
Court notes that the applicant did not make use of the appeal against
her arrest under Article 246 of the Code of Criminal Procedure.
However, the purpose of the remedy relied on by the Government is to
examine the lawfulness and legitimacy of the arrest. Therefore, in
the Court's view, it would not pursue the aim sought by the applicant
that is identifying and punishing the police officers responsible for
her alleged degrading treatment at the time of her arrest.
- The
Government further submitted that the applicant could have brought a
civil action for the protection of her personal rights under Article
23 and 24 of the Civil Code or could have claimed damages against the
State Treasury under Article 417 of the Civil Code. In the civil
proceedings the court would have had to establish whether the
allegations of ill-treatment were well-founded and thus to determine
whether there had been a breach of Article 3 of the Convention. The
Government stressed that the civil courts were not bound by the
findings reached in the criminal investigation.
- In
that regard, the Government relied on the Supreme Court judgment of
26 March 2003 (no. II CKN 1370/00). In that case a plaintiff had
successfully sued the police for the damage to his health sustained
as a result of the unlawful use of a firearm. The Supreme Court ruled
that the discontinuation of the criminal proceedings for abuse of
authority against one of the police officers concerned did not
constitute a bar to a finding by a civil court that the police
officer had committed a tort.
- The
applicant's lawyer did not comment.
- The
Court notes that a similar objection raised by the Government in an
Article 3 case against Poland was previously examined and rejected by
the Court (see H.D. v. Poland (dec.), no. 33310/96, 7
June 2001). The Court considers that the Government have not
submitted any new arguments which would lead it to depart from its
previous findings.
- In
any event, the Court reiterates that in cases where an individual has
an arguable claim under Article 3 of the Convention, the notion of an
effective remedy entails, on the part of the State, a thorough and
effective investigation capable of leading to the identification and
punishment of those responsible (see Assenov and Others v.
Bulgaria, 28 October 1998, § 102, RJD 1998-VIII, and
Selmouni v. France [GC], no. 25803/94, ECHR 1999-XII, §
79).
- By force of that special obligation created by the
Convention for domestic authorities in respect of arguable Article 3
claims, in the present case the applicant, by asking the Polish
authorities to institute criminal proceedings into her allegations of
ill-treatment, discharged her duty under Article 35 § 1 of the
Convention to afford the Polish State an opportunity to put matters
right through its own legal system before having to answer before an
international body for the acts complained of (see, mutatis
mutandis, Egmez v. Cyprus, no. 30873/96, § 72,
ECHR 2000-XII).
- Accordingly,
the Court holds that the applicant need not in addition have sought
to pursue any civil remedy relied on by the respondent Government
(see, H.D. v. Poland, cited above) or appeal against her
arrest (see paragraph 38 above). Moreover, a tort action would
have at most resulted in an award of damages, whereas in cases of
serious ill-treatment by State agents an alleged breach of Article 3
cannot be remedied exclusively through the payment of compensation
(see, among many other authorities, İlhan v. Turkey
[GC], no. 22277/93, § 61, ECHR 2000-VII). For these
reasons, the Government's pleas of inadmissibility on the ground of
non-exhaustion of domestic remedies must be dismissed.
2. Other grounds for declaring this complaint
inadmissible
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Alleged ill-treatment by the police
(a) The applicant's submissions
- The
applicant's lawyer submitted in general terms that Article 3 had been
violated by the police officers who, without any reason, had brutally
treated the applicant – a sensitive and vulnerable young woman.
He further submitted that the arresting police officers had refused
to show their badges and had caused the applicant injuries by using
disproportionate force and had violated her dignity. He also alleged
that the order to strip naked to undergo a body search had been
humiliating to the applicant.
Furthermore,
the applicant's lawyer complained that the authorities had not
convincingly explained the reasons for her injuries.
(b) The Government's submissions
- The
Government submitted that the applicant had been requested to show
her identity card at night in the course of a street patrol in a
district where many car thefts had occurred previously. She had
refused to show her document and tried to walk away. She was
subsequently warned that coercive measures would be used against her
if she persisted in refusing to follow the police officers' orders
and only then was she apprehended. However, as shown by the evidence
obtained in the investigation against the police officers, the force
used had not been disproportionate and the police officers had not
abused their powers. The use of force had been made necessary by the
applicant's own aggressive conduct. The applicant kicked and shouted
and hit one of the police officers with her umbrella. In that
connection, the Government submitted that no coercive measures had
had to be used against the applicant's friend, who gave his personal
data as requested.
- As
regards the complaint that the police officers refused to show their
badges, the Government submitted that they had been wearing uniforms
and that the applicant could have had no doubts that they were
entitled to request her identity card. In this respect the Government
relied on the provisions of the Ordinance of the Council of Ministers
of 17 September 1990 in force at the relevant time, according to
which at the time of the intervention, a police officer was obliged
to give his name, family name and police rank. Only a police officer
not wearing a uniform was obliged to show his badge.
- The
Government further submitted that, as regards the body search
complaint, the applicant had been requested to undress in order to
check whether she had any dangerous objects on her. The body search
had been conducted in accordance with the law in force at the
material time and in circumstances calculated to reduce the level of
inevitable humiliation – that is, in a separate room, in the
presence of one policewoman and taking only as much time as
necessary.
- Turning
to the complaint about the conditions in the cell in which the
applicant was detained at night the Government submitted that the
conditions had met the requirements laid down in the relevant
provisions of law. It further stressed that on 30 May 2003 the
relevant police detention centre was inspected by the penitentiary
judge of the Cracow Regional Court and that no reservations were
reported.
(c) The Court's assessment
- The
Court reiterates that where an individual is taken into police
custody in good health and is found to be injured on release, it is
incumbent on the State to provide a plausible explanation of how
those injuries were caused, failing which a clear issue arises under
Article 3 of the Convention (see, among other authorities, Selmouni
v. France [GC], cited above, § 87). The same principle
applies to alleged ill-treatment resulting in injury which takes
place in the course of an applicant's arrest (see Klaas v.
Germany, 22 September 1993, §§ 23-24,
Series A no. 269, and Rehbock v. Slovenia, no.
29462/95, §§ 68-78, ECHR 2000-XII).
- According
to the Court's case-law, Article 3 does not prohibit the use of force
for the purposes of effecting an arrest. However, such force may be
used only if indispensable and must not be excessive (see, among
others, Rehbock, cited above; Altay v. Turkey, no.
22279/93, § 54, 22 May 2001; and Ivan Vasilev v. Bulgaria,
no. 48130/99, § 63, 12 April 2007). In respect of a person
deprived of his liberty, recourse to physical force which has not
been made strictly necessary by his own conduct diminishes human
dignity and is in principle an infringement of the right set forth in
Article 3 (see Ribitsch v. Austria, 4 December 1995,
§ 38, Series A no. 336).
- The
Court further recalls that Article 3 of the Convention prohibits in
absolute terms torture and inhuman or degrading treatment. However,
ill treatment must attain a minimum level of severity if it is
to fall within the scope of Article 3. The assessment of this minimum
is relative: it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects and,
in some cases, the sex, age and state of health of the victim. In
respect of a person deprived of his liberty, recourse to physical
force which has not been made strictly necessary by his own conduct
diminishes human dignity and is in principle an infringement of the
right set forth in Article 3. Treatment has been held by the Court to
be “inhuman” because, inter alia, it was
premeditated, was applied for hours at a stretch and caused either
actual bodily injury or intense physical and mental suffering, and
also “degrading” because it was such as to arouse in its
victims feelings of fear, anguish and inferiority capable of
humiliating and debasing them. In order for a punishment or treatment
associated with it to be “inhuman” or “degrading”,
the suffering or humiliation involved must in any event go beyond
that inevitable element of suffering or humiliation connected with a
given form of legitimate treatment or punishment. The question
whether the purpose of the treatment was to humiliate or debase the
victim is a further factor to be taken into account, but the absence
of any such purpose cannot conclusively rule out a finding of
violation of Article 3 (see Labita v. Italy [GC], no.
26772/95, 6.4.2000, §§ 119-120, ECHR 2000 IV).
Allegations of ill-treatment must be supported by appropriate
evidence. To assess this evidence, the Court adopts the standard of
proof “beyond reasonable doubt” but adds that such proof
may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
(loc. cit., § 121).
- The
Court observes that the parties have not disputed that the impugned
injuries were caused by the police officers, using physical force. It
is also uncontested that the police officers used force at night on 2
June 2001 while taking the applicant to the police van in order to
effect the arrest which the applicant was attempting to resist. The
parties disagree however on whether the applicant was pushed into the
car and held down by the weight of the policemen's bodies. It must be
noted that the applicant's allegations to that effect were not
confirmed during the domestic investigation of her complaints at two
levels (see paragraphs 20-21 and 25 28, above). While the
Court is not bound by the findings of the domestic authorities as to
facts alleged to be in breach of the Convention, on the basis of the
parties' observations and the material in its possession, it finds it
impossible to establish whether any ill-treatment occurred in the
police van as alleged by the applicant.
- The
Court observes that the applicant was apprehended in the course of an
operation giving rise to unexpected developments to which the police
were called upon to react. Furthermore, account must be taken of the
fact that the applicant effectively resisted the legitimate actions
of the police officers - by refusing to comply with their request to
show her identity card and trying to walk away and, subsequently, by
resisting the attempts of the policemen to apprehend her, kicking the
officers and hitting one of them with an umbrella. Some injuries of
one of the police officers were noted by the domestic courts (see
paragraph 26 above and, by contrast, Lewandowski and Lewandowska
v. Poland, no. 15562/02, § 64, 13 January 2009). It is
undisputed between the parties that the police officers failed to
present their badges. However, the Court would accept the
Government's argument that they were properly uniformed and that the
applicant could have had no doubts that she was being apprehended by
the police.
- The
Court notes in addition that the applicant's injuries were not very
serious and, as reported by the domestic authorities, the impairment
of the applicant's health lasted for a period shorter than seven days
within the meaning of the Polish Criminal Code (see paragraph 18,
above). The applicant did not need hospitalisation.
- As
regards the body search, the Court accepts the Government's
explanation that it was conducted in a separate room, in the presence
of one person of the same sex and lasted only as long as was
necessary to establish that the applicant had had no dangerous
objects about her person. The body search served a legitimate
purpose, namely to secure the safety of the applicant's detention.
There is no indication that the body search was conducted in a manner
which could debase or humiliate the applicant (see, by contrast,
Valašinas v. Lithuania, no. 44558/98, § 117,
ECHR 2001 VIII, and Iwańczuk v. Poland, no.
25196/94, §§ 58-59, 15 November 2001).
- With
regard to the standard of the cell in which the applicant was placed
following her arrest in the police station and the fact that the
applicant's jacket was taken away from her, the Court notes that in
his appeal against the decision to discontinue the proceedings
against the policemen, the applicant's lawyer did not refer to the
fact that at the police detention centre the applicant had allegedly
been refused permission to go to the toilet and that she had had to
spend the night on a concrete floor without any cover (see paragraph
19 above). In any event, in the Court's view the removal of the
jacket was justified by security reasons. Moreover, the incident took
place in summer and the applicant spent only a few hours in the
police detention centre. It follows that the conditions in which she
was held did not attain the minimum level of severity required to
give rise to a violation of Article 3 of the Convention.
- Taking
into consideration the facts as established by the domestic courts,
especially the extent of the applicant's injuries and her conduct
during her apprehension, the Court concludes that the recourse to
physical force in this case was made necessary by the applicant's own
conduct. Therefore, while she admittedly suffered as a result of the
incident of 2 June 2001, the use of force against her cannot be held
to have been excessive.
There
has accordingly been no violation of Article 3 of the Convention in
regard to the alleged ill-treatment by the police on 2 June 2001.
2. Adequacy of the investigation
(a) The applicant's submissions
- The
applicant's lawyer submitted that the domestic proceedings had not
been sufficiently thorough and effective to meet the requirements of
Article 3. He maintained that the domestic authorities had failed to
thoroughly examine the differences between the statements given by
the police officers. He relied on the finding of the Cracow Regional
Court of 1 July 2003 that there had been no basis to assume that
the applicant's injuries had been caused when the applicant was
placed in the police car in the way described by the police officers.
(b) The Government's submissions
- The
Government contended that the investigation and judicial proceedings
in the present case had complied with Article 3 requirements. They
argued that the proceedings had been prompt and thorough. There had
been no other evidence that the prosecuting authorities should have
taken in order to establish the facts of the alleged ill-treatment.
The circumstances of the case had been examined by the Cracow
District Prosecutor and in two sets of independent judicial
proceedings. In the course of the judicial and non-judicial
proceedings all relevant witnesses had been heard and a forensic
report had been commissioned. Furthermore, the domestic court's
finding in the criminal proceedings against the applicant had been
examined by the court of second instance which had remitted the case
and it had been re-examined by the court of first instance.
(c) The Court's assessment
- The
Court reiterates that where an individual makes a credible assertion
that he has suffered treatment infringing Article 3 at the hands of
the police or other agents of the State, that provision, read in
conjunction with the State's general duty under Article 1 of the
Convention to “secure to everyone within [its] jurisdiction the
rights and freedoms defined in ... [the] Convention”, requires
by implication that there should be an effective official
investigation. This investigation should be capable of leading to the
identification and punishment of those responsible (see, among other
authorities, Labita v. Italy, cited above, § 131).
The investigation into arguable allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill-founded conclusions to close their investigation or as the basis
of their decisions (see Assenov and Others, cited above, § 103
et seq).
- In
the Labita case cited above, the Court found a violation of
Article 3 on the ground that the authorities had not
investigated the alleged numerous acts of violence, humiliation, and
other forms of torture inflicted on an applicant. It must be noted
however that in that case the Court's conclusion was reached on
account of the manifest inactivity of the authorities regarding the
investigation of that applicant's complaints (loc. cit.,
§§ 117-136).
- By
contrast, in the present case, a number of persons were questioned,
including the applicant's friend, J.D., and an expert opinion was
produced in the context of the investigation into the applicant's
allegations of ill-treatment on 1 June 2001 (see paragraph 18 above).
- Subsequently,
the prosecution decided not to charge the policemen and to
discontinue the investigation because of the lack of unequivocal
evidence of the officers' guilt. The investigation of the district
prosecutor was completed on 30 May 2002 - i.e. almost two years after
the impugned events, but some seventeen months after the applicant's
lawyer's request for criminal proceedings to be instituted against
the police officers – a period which could be considered
acceptable, given the number of procedural acts carried out by the
authorities (see paragraphs 17-28 above; also see, by contrast,
the above-mentioned Labita case, loc. cit., § 133;
where only photographs of the alleged perpetrators had been taken
during a period of fourteen months).
- Furthermore,
the applicant had the subsequent opportunity to have the decision of
the district prosecutor reviewed before the court. The fact that her
appeal was unsuccessful cannot be considered pertinent. There is no
evidence that the prosecution should have taken any other steps in
order to establish the facts alleged by the applicants. Nor is there
any indication that the prosecutors used their statutory discretion,
allowing them to evaluate the material before them in order to decide
whether or not to charge the alleged perpetrators with a criminal
offence, in an arbitrary manner.
- The
Court further notes that the circumstances of the present case were
examined independently in another set of proceedings, namely in the
proceedings against the applicant. In that case too the judgment
given by the first-instance court was subject to judicial review. It
is true that on 1 July 2003 the Cracow Regional Court,
finding some circumstances not to have been sufficiently examined,
remitted the case. These shortcomings were however rectified firstly
by the District Court which re-examined the case and, secondly, by
the Regional Court, which, on 12 April 2005, examined and dismissed
the applicant's appeal.
- The
Court concludes that the investigation of the applicant's allegations
of ill-treatment was thorough and effective. There has thus been no
breach of Article 3 of the Convention in this respect.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant complained of a violation of Article 6 § 1
of the Convention on account of the alleged unfairness of the
criminal proceedings against her.
- The
Court has examined this complaint as submitted by the applicant.
However, having regard to all the material in its possession it finds
that the complaint concerns the outcome of the relevant proceedings
and is clearly of a fourth-instance nature, and thus manifestly
ill-founded. It follows that this part of the application must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 3
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention either under its substantial or
procedural limb.
Done in English, and notified in writing on 3 November 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
