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FOURTH
SECTION
CASE OF LEWANDOWSKI AND LEWANDOWSKA v. POLAND
(Application
no. 15562/02)
JUDGMENT
STRASBOURG
13 January 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 Lewandowski and
Lewandowska 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 9 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15562/02) 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 two Polish nationals, Mr Czesław
Lewandowski and Ms Danuta Lewandowska (“the applicants”),
on 14 March 2002. They lodged the application on behalf of their son,
Paweł Lewandowski, who committed suicide on 27 May 2001.
- The
applicants were represented by Mr A. Bodnar of the Helsinki
Foundation for Human Rights (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, a violation of Article 3 of the
Convention on account of ill-treatment sustained by their son during
his arrest by the police.
- On
28 September 2006 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
applicants were born in 1949 and 1953 respectively and live in
Legionowo.
1. The arrest of the applicants' son
(a) The applicants' account of events
- In
the evening of 3 August 2000 the applicants' son and his two friends,
T.D. and G.S. were drinking beer on a street in Legionowo. After G.S.
broke a windowpane on a notice board, they fled.
- In
connection with that event, at about 10.45 p.m. on the same day,
Paweł Lewandowski was arrested by two police officers, M.K. and
A.J. The police officers established the identity of the applicants'
son and ordered him to get into the police car. The applicants' son
kept asking about the reasons for his arrest. He rang his sister from
his mobile phone to inform her about the situation. One of the police
officers asked Paweł Lewandowski “if he did not like
something”. The other police officer asked him where he lived
and later said that they would bring a charge against him of
assaulting a police officer.
- Shortly
afterwards the police officers ordered the applicants' son to leave
the car. After crossing the street, they knocked him over and started
kicking him. In reaction to that, Paweł Lewandowski began
insulting and uttering threats against the police officers. That
incident was observed by D.G. from a nearby estate.
- At
about the same time the two friends of Paweł Lewandowski, T.D.
and G.S. were arrested by other police officers.
- Subsequently,
the applicants' son was driven to the Legionowo police station. He
signed the record of arrest which stated that he was suspected, among
other things, of insulting and assaulting a police officer. The
applicants' son did not complain about his state of health. It was
established by breathalyser test that he had a blood alcohol level of
1.38. The applicants' son did not receive any medical assistance
during his detention at the police detention centre, despite showing
visible signs of injury.
- Paweł
Lewandowski was released from detention on 5 August 2000 at about 10
a.m. On his release, he went with his parents to see a doctor. On 5
August 2000 Dr D.S. issued a medical certificate for the applicants'
son which read as follows:
“Condition after assault. Swelling and reddening
of left upper eyelid. Ecchymoses on the left side of the forehead,
right side of the neck and inside area of both arms. Light pressure
pain in the area of the back of the head and in the area below the
right side of the ribs.”
(b) The Government's account of facts
- The
applicants' son was arrested on 3 August 2000 on suspicion of
destroying public property. He was also said to have kicked and
smashed private cars while fleeing the scene. He had been intoxicated
as he had been drinking beer with his two friends, T.D. and G.S.
- Two
police officers, M.K. and A.J., arrived at Aleja Róż
where the other police team attempted to arrest the perpetrators of
the misdemeanour. On approach the police officers noticed three men
fleeing into a forest. The applicants' son was caught first. While
resisting arrest, he slapped and kicked police officer M.K on the
right thigh. The police officers had recourse to force during the
arrest to the extent that had been necessary in view of the
applicants' son's conduct. The applicants' son was pulled to the
ground after a brief struggle. He was later handcuffed as he had
still been aggressive. The applicants' son used very abusive and
insulting language towards the police officers and he uttered very
serious threats. Two other men were arrested by the second police
team in the forest.
2. Proceedings against the police officers
- On
11 August 2000 Paweł Lewandowski made a criminal complaint to
the Legionowo District Prosecutor against the police officers,
alleging that they had beaten him during his arrest and that his
arrest had been unlawful. The applicants' son submitted that the
whole incident had been seen by a witness from a nearby estate. He
provided the name and address of that witness. He also enclosed a
medical certificate issued on 5 August 2000 confirming his injuries.
- The
District Prosecutor heard evidence from the applicants' son on
1 September 2000. Paweł Lewandowski stated that on 3 August
2000 at about 10 p.m. he had been arrested by two police officers
while walking down Aleja Róż with two of his friends,
G.S. and T.D. He further testified that he had been arrested as the
alleged perpetrator of the damage to the windowpane and that he had
been beaten by the police officers.
- On
1 October 2000 the District Prosecutor opened an investigation into
the allegations of abuse of power by the police officers during the
arrest of the applicants' son.
- On
25 October 2000 T.D. was heard by the prosecutor. He maintained that
on 3 August 2000 he and his friends, Paweł Lewandowski and G.S.,
had gone to Suwalna Street in Legionowo to collect G.S.'s mother.
While waiting for her T.D. had suddenly heard the sound of the
windowpane being broken and he and his friends had decided to run
away. T.D. further stated that while walking down Aleja Róż
he and G.S. had noticed a police car and immediately fled. T.D.
explained that behaviour by the fact that they were intoxicated and
were holding beer. T.D. further stated that he had seen one of the
police officers standing next to Paweł Lewandowski, but had not
noticed any violence. He declared that he had not witnessed the
applicants' son being caught.
- On
an unspecified date G.S. was heard. He confirmed the initial course
of events. However, he stated that he had seen one of the police
officers who had arrested Paweł Lewandowski hit and kick him.
- On
an unspecified date the prosecutor heard evidence from D.G. That
witness testified that in the evening of one of the days at the
beginning of August 2000, while standing by the gate of his house, he
had noticed an unknown man being kicked and hit by two police
officers. D.G. also stated that he had not witnessed the incident
from the beginning.
- Police
officers M.K. and A.J., who arrested the applicants' son, testified
on 3 and 7 November 2000 respectively. They admitted that they had
used coercive measures against Paweł Lewandowski because he had
actively resisted his arrest and had been aggressive. They denied
that they had kicked him.
- On
an unspecified date the prosecutor heard evidence from J.Z., a duty
officer at the Legionowo Police Station. He stated that the police
officers who had arrested the applicants' son had informed him on
their return that they had had to use coercive measures because of
the aggressive behaviour of the arrested persons.
- In
the course of the investigation the District Prosecutor also
established that on 27 October 2000 the prosecution service had filed
a bill of indictment against Paweł Lewandowski in connection
with alleged assault on the arresting police officers (case no. 1Ds.
1167/00, see below).
- On
an unspecified date the prosecutor heard evidence from two other
police officers, P.W. and S.P., who had taken part in the arrest of
Paweł Lewandowski and his two friends on 3 August 2000. Police
officer P.W. testified that he had heard the man arrested by police
officer M.K. insulting the latter and uttering threats. Police
officer S.P. stated that he had seen Paweł Lewandowski hit
police officer M.K. in the face and leg. He further stated that
police officers M.K. and A.J. had overpowered Paweł Lewandowski.
Police officer S.P. denied that police officers M.K. and A.J. had
used unlawful force during the arrest.
- On
8 December 2000 the District Prosecutor ordered the preparation of a
forensic report. According to that report dated 16 December 2000
Paweł Lewandowski sustained the following injuries as a result
of an assault on 3 August 2000:
1) an
injury to his head without loss of consciousness with suspected
concussion, which was not confirmed by an electroencephalography
examination;
2)
ecchymoses on the left side of the forehead;
3) an
injury to the area of the left eye socket with swelling and reddening
of the left upper eyelid;
4) an
injury to the left side of his neck with ecchymoses;
5) an
injury to the back of his head with pressure pain;
6) an
injury to both arms with ecchymoses on the inside area;
7) an
injury to the area below the right part of the ribs with pressure
pain.
The
forensic report concluded that the injuries sustained by Paweł
Lewandowski were to be considered light bodily injuries lasting no
longer than seven days within the meaning of Article 157 § 2 of
the Criminal Code. It concluded that:
“those injuries could occur in the circumstances
described by the victim”.
- On
28 December 2000 the Warsaw Regional Prosecutor decided to prolong
the investigation. The Regional Prosecutor considered that further
evidence needed to be obtained.
- The
Government submitted that on 5 January 2001 the District Prosecutor
had commissioned a further expert report on the character of Paweł
Lewandowski's injuries. According to that report of an unspecified
date, it was not possible to establish on the basis of the medical
certificate of 5 August 2000 what had caused the said injuries. The
Government have not produced a copy of that report.
- On
23 March 2001 the Legionowo District Prosecutor discontinued the
investigation into the allegations of the abuse of power by the
police officers. The prosecutor refused to prosecute the police
officers in respect of the offences specified in Articles 231 §
1 and 158 § 1 of the Criminal Code, finding that there was not
enough evidence to support the conclusion that they had committed
those offences.
- The
District Prosecutor had regard to the fact that two of Paweł
Lewandowski's friends, T.D. and G.S., when heard on 4 August 2000 in
case no. 1Ds. 1167/00, had stated that they had not seen the arrest
of the applicants' son. The prosecutor found that the above
statements contradicted the evidence given by T.D. and G.S. in the
course of the present investigation. Having regard to the above and
to the fact that they were close friends of the applicants' son, the
prosecutor observed that their evidence could not be considered
reliable.
- The
District Prosecutor found that the version of events as presented by
the police officers who had arrested Paweł Lewandowski was to be
considered reliable. In the prosecutor's view, their version of
events was also corroborated by the forensic report dated 16 December
2000. According to that report, Paweł Lewandowski's injuries
could have resulted from using knees to restrain him, or kicking, or
from falling on to a hard surface. The prosecutor further found that
there was no other evidence which could indicate beyond doubt that
the victim's version of the events was true.
- On
17 April 2001 Paweł Lewandowski lodged an appeal against that
decision with the Warsaw Regional Prosecutor. He contested, in
particular, the finding that the evidence of T.D. and G.S., could not
be considered credible on the ground that they were close friends of
the victim and wanted to present the facts in a particular way. Paweł
Lewandowski also emphasised that the testimony of an independent
witness, D.G., who had seen the police officers kicking him, had been
disregarded.
- On
16 May 2001 the Warsaw Regional Prosecutor upheld the decision of 23
March 2001 and transmitted the applicants' son's appeal to the
Legionowo District Court for review. The Regional Prosecutor
considered that the lower prosecutor had correctly assessed the
evidence obtained in the case. The evidence did not justify a finding
that the police officers had abused their powers. The Regional
Prosecutor further found that in accordance with a medical report
attached to the file injuries sustained by Paweł Lewandowski
might have resulted from being struck or kicked or from falling down
on a hard surface. It was thus not possible to establish the origin
of those injuries.
- On
27 May 2001 Paweł Lewandowski committed suicide by hanging
himself in his parents' garage.
- On
28 September 2001 the Legionowo District Court held a hearing. The
hearing was attended by a representative of the Helsinki Foundation
for Human Rights. According to the report prepared by that
representative, the District Prosecutor R.G. stated during the
hearing that police officers had beaten the applicants' son.
- On
the same day the District Court upheld the District Prosecutor's
decision of 23 March 2001. It reasoned its decision as follows:
“The appeal is
not justified and could not be upheld. The prosecutor conducting the
investigation had obtained all available evidence in the case, had
thoroughly and impartially assessed that evidence and had reached the
correct decision. It is not justified to assert that [the prosecutor]
arbitrarily considered that witnesses T.D. and G.S. were not
reliable, since those witnesses, according to their own statements,
had not seen the very moment of the victim's arrest and could not
pronounce on the reasonableness of the use of force against the
victim. The testimony of D.G., contrary to the victim's assertions,
does not confirm that the police officers had abused their powers,
because he [D.G.] did not see the beginning of the incident. However,
the testimonies of the intervening police officers are logical,
consistent and concurring.”
3. Proceedings against the applicants' son for assault on police
officers
- On
4 August 2000 the police opened an investigation against the
applicants' son. He was charged with assaulting and insulting police
officers (offences specified in Articles 222 § 1 and 226 §
1 of the Criminal Code). The applicants' son maintained that he had
been taken out of the police car and beaten. In reaction to that, he
had insulted the police officers.
- On
4 August 2000 police officers M.K. and A.J. testified. They stated
that they had encountered difficulties when apprehending the
applicants' son since he had resisted. For this reason, they had used
their truncheons and struck him on the buttocks. They had handcuffed
him with serious difficulty. Both police officers stated that Paweł
Lewandowski had used offensive language and uttered threats against
them.
- Police
officer S.P., who had been in the second police team participating in
the arrest, stated that he had seen Paweł Lewandowski slapping
and kicking police officer M.K. He further stated that the
applicants' son had insulted the second police team using very
offensive words.
- On
the same day police heard a certain E.D. who lived in the block of
flats where the windowpane was destroyed. He testified that on 3
August 2000 at about 10 p.m. when standing on his balcony he had
noticed three men who were being very loud, drinking beer and
cursing. One of them had broken a metal doormat which was in front of
the building. The witness' wife asked them what they were doing
there. She had received an offensive response and one of the men
threw the doormat into a nearby garden. In the meantime another of
them broke the windowpane. Subsequently, they had begun to flee.
While fleeing, one of the men had kicked cars parked nearby and their
alarms had gone off.
- On
27 October 2000 the Legionowo District Prosecutor filed with the
Legionowo District Court a bill of indictment against the applicants'
son. He was charged with assaulting police officer M.K. during his
arrest, insulting that police officer and uttering threats against
him. He was also charged with insulting and uttering threats against
police officer A.J.
- On
18 May 2001 the District Court held a hearing. On 13 June 2001 the
proceedings against the applicants' son were discontinued due to his
death.
II. RELEVANT DOMESTIC LAW
1. The Criminal Code 1997
Article 157, in so far
as relevant, provides:
Ҥ 1. A person who causes bodily harm or
damage to health other than specified in Article 156 § 1
(grievous bodily harm), shall be liable to imprisonment
for a term of from three months to five years.
§ 2. A person who causes bodily harm or damage
to health lasting no longer than seven days shall be liable to a
fine, a penalty of restriction of liberty or imprisonment for a term
not exceeding two years.”
Article 231 § 1
provides:
“A public official, who by abusing his powers or
by failing to fulfil his duties, acts to the detriment of a public or
private interest, shall be liable to imprisonment for a
term not exceeding three years.”
2. Use of force by the police
Article 16 of the
Police Act of 6 April 1990 reads, in so far as relevant, as follows:
“1. If a lawful order given by a police
authority or a policeman has not been complied with, policemen may
apply the following coercive measures:
1) physical, technical and chemical means of
restraining or escorting persons or of stopping vehicles;
2) truncheons;
3) water cannons;
4) police dogs and horses;
5) rubber bullets fired from firearms;
2. Policemen may apply only such coercive
measures as correspond to the exigencies of a given situation and are
necessary to have their orders obeyed.”
Paragraph 5 of the
Ordinance of the Council of Ministers of 17 September 1990 on
the Use of Coercive Measures by the Police 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 the life, health or property of
others.”
Paragraph
6 of the Ordinance provides, in so far as relevant, as follows:
“Handcuffs may be used (...) in order to prevent
an escape or to prevent an active assault or active resistance. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained under Article 3 of the Convention that their
son had been ill-treated in the course of his arrest. They alleged
that the arresting police officers had caused their son's injuries by
using disproportionate force and had violated his dignity. They
submitted that their son had not resisted the arrest and stressed
that hitting and kicking a person could never be justified,
regardless of the behaviour of that person.
Furthermore,
the applicants complained that the authorities had not convincingly
explained the reasons for their son's injuries, given the medical
certificates and the testimony of D.G.
The
applicants lastly submitted that their son's suicide had been related
to his ill-treatment by the police.
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. The six-month rule
- The
Government argued that the application was inadmissible for failure
to comply with the six-month rule. They submitted that the relevant
proceedings had been terminated on 28 September 2001 when the
Legionowo District Court had upheld the decision to discontinue the
investigation against the police officers and, hence, the critical
date for lodging the application had expired on 28 March 2002. The
Government noted that the applicants had lodged their complaint on 12
April 2002, when their first letter had reached the Court, and not on
14 March 2002 as it had been presented in the statement of facts. The
applicants signed their application on the latter date. However, it
did not transpire from the documents made available to the Government
by the Court that the applicants had lodged their application before
the expiry of the six-month time-limit on 28 March 2002.
- The
applicants maintained that they had received a letter from the Court
dated 18 April 2002 in which the Registrar had confirmed the receipt
of their application form dated 14 March 2002. Accordingly, the
complaint had been lodged within the time-limit.
- The
Court notes that the applicants' first letter setting out the object
of the application was dated 14 March 2002. That letter, as shown by
the postage stamp on the envelope, was sent by registered post on
15 March 2002 and thus the Court finds that the application was
introduced before the expiry of the six-month time-limit provided for
by Article 35 § 1 of the Convention. Accordingly, the
Government's preliminary objection on the ground of belated lodging
of the application late must be dismissed.
2. Exhaustion of domestic remedies
- The
Government further argued that the applicants had not exhausted all
the available remedies since they could have claimed damages against
the State Treasury under Article 417 of the Civil Code. In the civil
proceedings the court would have 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
power against a police officer concerned did not constitute a bar to
a finding by a civil court that the police officer had committed a
tort.
- The
applicants argued that the purported remedy was not adequate. The
applicants' son did not want damages for the harm he had suffered due
to the unlawful behaviour of the police officers and considered the
judgment relied on by the Government irrelevant in the case. The
applicants' son wanted the police officers to be found guilty and
punished, which was the role of the criminal court.
- The
Court notes that a similar objection raised by the Government in an
Article 3 case against Poland was already 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 applicants' son, by asking the Polish
authorities to institute criminal proceedings into his allegations of
ill-treatment, discharged his 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 applicants
need not in addition have sought to pursue the civil remedy relied on
by the respondent Government (see, H.D. v. Poland, cited
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 plea of inadmissibility on the ground of
non-exhaustion of domestic remedies must be dismissed.
3. 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 applicants' submissions
- The
applicants maintained that their son had not resisted arrest. They
submitted that the police officers had used a truncheon to effect the
arrest of their son. Police officer M.K. acknowledged striking Paweł
Lewandowski three times on the buttocks. However, the medical report
prepared on 5 August 2000 did not mention any visible signs resulting
from the use of a truncheon, but it did indicate other serious
injuries sustained by the applicants' son. In the applicants'
opinion, that report showed that the course of events surrounding the
arrest of Paweł Lewandowski had been different from the one
asserted by the authorities.
- Even
assuming that the applicants' son had struggled with the police
officers, the Government did not furnish any arguments which would
provide a basis to explain the degree of force used. The applicants
claimed that the force had had to be significant judging from the
injuries sustained by their son as described in the medical report of
5 August 2000 (see paragraph 11 above). The applicants argued that
there was no evidence that their son had been particularly dangerous
or in possession of a weapon. Similarly, there was no evidence of any
injuries sustained by the police officers.
- The
present case had to be distinguished from Berliński v. Poland
(nos. 27715/95 and 30209/96, 20 June 2002) where the Court could
not establish whether any ill-treatment had occurred in the police
van as alleged by the applicants and where it found that the
applicants' injuries had resulted from their resistance to the police
officers effecting their arrest. The present case was different since
D.G. had seen police officers kicking and hitting the applicants'
son. The applicants argued that it was irrelevant that D.G. had not
seen the incident from the beginning as under no circumstances could
kicking a helpless person who was lying on the ground be justified.
Moreover, while in Berliński it was not disputed that
there had been a struggle between the applicants and the police at
the moment of arrest. In the instant case the matter was disputed.
Consequently, the State should be held responsible under Article 3 in
respect of the injuries sustained by the applicants' son.
(b) The Government's submissions
- The
Government stressed that the applicants' son had been apprehended in
the course of a random operation which had given rise to unexpected
developments, as he had resisted arrest and had attacked the
policeman. According to forensic reports the injuries sustained by
Paweł Lewandowski could have resulted from a fall on to a hard
surface.
- The
Government emphasised that in the light of evidence obtained in the
investigation it could not be said that Paweł Lewandowski had
been subjected to inhuman or degrading treatment or that the police
officers had abused their powers during his apprehension. That
finding had been confirmed by both the district and regional
prosecutor and subsequently by a court. The use of force to effect
the applicants' son's submission to the lawful requirements of the
police officers had been made necessary by his own conduct.
Furthermore, the allegations that Paweł Lewandowski had been
ill-treated by the police had not been confirmed in the domestic
investigation.
- The
Government argued that, even assuming that the injuries of the
applicants' son had been sufficiently serious to amount to
ill-treatment to fall within the scope of Article 3, during the
arrest he had resisted the legitimate actions of the police officers
and used very abusive language. Moreover, the forensic reports had
not confirmed that the impugned injuries had resulted from abuse of
power by the police. Thus, in the Government's view, the present case
was similar to the case of Berliński and the applicants'
complaint was manifestly ill-founded.
(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
parties did not dispute that the applicants' son's injuries had
occurred in the course of the arrest. However, differing versions of
how the applicants' son actually sustained the injuries were put
forward by the applicants and the Government. The applicants claimed
that their son had been asked to get out of the police car and later
knocked over and kicked by police officers while lying on the ground.
They underlined that he had not resisted arrest.
- The
Government, on the other hand, argued that the police had used
necessary force against the applicants' son, who had resisted arrest
and had been aggressive. He had, in their submission, slapped and
kicked one of the officers on the leg and abused them verbally. The
Government submitted that the applicants' son injuries could have
resulted from a fall on to a hard surface, apparently following the
struggle with the police.
- Furthermore,
the Court notes that the District Prosecutor in his decision of 23
March 2001, relying on the forensic report dated 16 December 2000,
had concluded that the applicants' son's injuries could have resulted
from using knees to restrain him, or kicking, or a fall on to a hard
surface. The Regional Prosecutor in her decision of 16 May 2001 found
that in accordance with an unspecified subsequent forensic report the
same injuries could have resulted from the applicants' son being
struck or kicked or from his falling on to a hard surface. The Court
observes that the forensic report dated 16 December 2000 was made
available to it by the applicants and was not contested by the
Government. It listed the injuries sustained by the applicants' son
and concluded that they “could occur in the circumstances
described by the victim”, namely following an assault by police
officers. The report did not mention the conclusions relied on by the
District Prosecutor and the Court is thus unable to see how the
prosecutor could refer to them. The other forensic report referred to
in the Regional Prosecutor's decision suggested that the applicants'
son's injuries could have also resulted from his being struck. The
Court notes that the other forensic report apparently obtained by the
prosecuting authorities was not produced by the Government. In
addition, its conclusions and the conclusions referred to by the
District Prosecutor are inconsistent with the medical report of 5
August 2000 and the forensic report of 16 December 2000. Having
regard to the above, the Court considers that the Government's
explanation as to the origin of the injuries of the applicants' son
is deficient (see, mutatis mutandis, Corsacov v. Moldova,
no. 18944/02, § 59, 4 April 2006).
- When
establishing the circumstances of the alleged ill-treatment, the
Court attaches particular importance to the evidence given by D.G.
who was a person independent from the applicants' son and his two
colleagues. In the course of the investigation he testified that at
the material time he had seen from his estate two police officers
kicking and hitting a man. However, his testimony was disregarded by
the District Prosecutor apparently on the ground that he had not seen
the impugned incident from the start. The Court fails to see any
justification for such an approach and agrees with the applicants
that it was irrelevant whether the witness had seen the incident from
the beginning. Moreover, by doing so the prosecuting authorities
appear to give the regrettable impression that kicking and hitting a
person under police control could be justified. The Court observes
that the present case can be distinguished on that ground from
Berliński v. Poland (cited above) where there were no
witnesses to establish whether any ill-treatment had occurred in the
police van as alleged by the applicants in that case. Furthermore, in
Berliński it was established that the applicants had
submitted to the arrest only when threatened with a gun and had been
subsequently convicted of an assault on the police officers.
- The
Court further notes the Government's argument that the applicants'
son had been apprehended in the course of a random operation which
had given rise to unexpected developments. However, it considers that
that argument does not carry significant weight in the circumstances
of the case. Even assuming that the applicants' son –
apparently intoxicated – had struggled with the police
officers, there is no evidence that he was particularly dangerous or
in possession of a weapon. Furthermore, no evidence of any injury to
the police officers was adduced by the Government. The Government did
not advance any additional argument that would allow the Court to
establish that the applicants' son's conduct was of such a character
as to justify recourse to the considerable physical force that,
judging by the relative seriousness of the injuries, must have been
employed by the police (see Dzwonkowski v. Poland, no.
46702/99, § 55, 12 April 2007).
- The
Court must scrutinise the alleged breach of Article 3 with heightened
vigilance, because this provision prohibits inhuman or degrading
treatment in absolute terms, irrespective of the victim's conduct
(see Ribitsch, cited above, § 32, and Ivan Vasilev,
cited above, § 64). It reiterates that the applicants' son
sustained a number of relatively serious injuries as evidenced by the
medical and forensic reports of 5 August and 16 December 2000 (see
paragraphs 11 and 24 above). On the basis of all the material placed
before it, the Court does not find it established that the recourse
to physical force in this case was made necessary by the conduct of
the applicants' son (see, by contrast, Berliński v. Poland,
cit. above). Having regard to the nature of the injuries, the Court
considers that the Government have not furnished convincing or
credible arguments which would provide a basis to explain or justify
the degree of force used during the arrest. Accordingly, the force
used was excessive and unjustified in the circumstances (see
Dzwonkowski, cited above, § 56).
- There
has therefore been a violation of Article 3 of the Convention on
account of the inhuman and degrading treatment to which the
applicants' son was subjected during his arrest.
2. Adequacy of investigation
(a) The applicants' submissions
- The
applicants argued that the investigation had not been sufficiently
thorough and effective to meet the requirements of Article 3. The
prosecuting authorities had not explained the origin of the numerous
injuries sustained by the applicants' son and had unconditionally
accepted the testimonies of the police officers. They had further
disregarded the evidence of D.G., the only witness who had had no
interest in the outcome of the case. The prosecuting authorities had
also failed to hear Dr D.S. who had prepared the medical report of 5
August 2000 and the sister of the applicants' son whom he had
contacted from his mobile at the time of his arrest. The applicants
further submitted that the problem of excessive use of force by law
enforcement officials in Poland had been underlined by the United
Nations Committee Against Torture during its 38th session
on 18 May 2007.
(b) The Government's submissions
- The
Government contended that the investigation in the present case had
complied with Article 3 requirements. The fact that the investigation
had been discontinued for lack of conclusive evidence of
ill-treatment could not be tantamount to a violation of the
Convention. The domestic authorities had shown resolve and spared no
effort to identify those responsible. The District Prosecutor had
heard all witnesses, commissioned two forensic reports and examined
the case files of the proceedings against the applicants' son.
Furthermore, his decision had been examined und upheld by a higher
prosecutor and a court.
- The
Government argued that the investigation 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. In their view, the prosecutors had not
evaluated the evidence before them in an arbitrary manner.
(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 their 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 [GC], no. 26772/95, §
131, ECHR 2000-IV). 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).
- On
the basis of the evidence adduced in the present case, the Court has
found that the respondent State is responsible under Article 3 for
the ill treatment of the applicants' son (see paragraph 66
above). The applicants' complaint in this regard is therefore
“arguable”. The authorities thus had an obligation to
carry out an effective investigation into the circumstances in which
the applicants' son sustained his injuries.
- The
Court notes that following the applicants' son's complaint that on 3
August 2000 he had been ill-treated by police officers, the public
prosecutor carried out an investigation. However, the investigation
appears flawed in several respects. Firstly, the prosecutor failed to
explain the origin of the applicants' son's extensive injuries
despite the medical evidence. Even though the forensic reports relied
on by the prosecuting authorities suggested that the injuries could
have resulted from excessive use of force, they still failed to
address that point and appeared to presume that all of them resulted
from the conduct of the applicants' son. Secondly, the prosecutor
dismissed without giving cogent reasons the evidence of D.G. which
had clearly indicated that the police officers had ill-treated the
applicant. Thirdly, the prosecutor failed to hear evidence from Dr
D.S., who had examined the applicant shortly after his release and
prepared the first medical report in the case.
- The
Court also finds that the prosecuting authorities unconditionally
accepted the statements of the police officers without taking any
note of the fact that they had obviously had an interest in the
outcome of the case and in diminishing their responsibility (see
Dzwonkowski, cited above, § 65).
- In
the light of the above, the Court considers that the investigation
was superficial, lacked objectivity and ended in decisions which
contained conclusions unsupported by a careful analysis of the facts.
- Against
this background, in view of the lack of a thorough and effective
investigation into the applicant's arguable claim that he was
ill treated by police officers, the Court finds that there has
been a violation of Article 3 of the Convention in this respect as
well.
II. 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 claimed 15,000 euros (EUR) in respect of non-pecuniary
damage for suffering and distress occasioned as a result of
ill-treatment of their son. Apart from physical suffering, their son
had also experienced mental suffering that led him to commit suicide.
The parents' anguish could not be underestimated.
- The
Government submitted that the applicants' claim was exorbitant in the
light of the Court's case-law.
- The
Court found above that the applicants' son had suffered relatively
serious injuries at the hands of police officers. Having regard to
the awards made in previous similar cases and to the circumstances of
present case, the Court awards the applicants EUR 10,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicants made no claim in respect of costs and expenses.
C. 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
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention on account of ill-treatment of the applicants'
son;
- Holds that there has been a violation of Article
3 of the Convention on account of the lack of an effective
investigation;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10,000 (ten
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 13 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
