BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF MROZOWSKI v. POLAND
(Application
no. 9258/04)
JUDGMENT
STRASBOURG
12 May
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to
editorial revision.
In the case of Mrozowski v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 16 April 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9258/04) 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, Mr Artur Mrozowski
(“the applicant”), on 26 January 2004.
- The
applicant was represented by Ms M. Gąsiorowska, a lawyer
practising in Warsaw. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry for Foreign Affairs.
- The
applicant alleged, in particular, that he had been ill-treated by the
police and that no adequate and effective investigation into his
allegations had been carried out by the authorities.
- On
17 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 1973 and lives in Piastów, Poland.
A. The events of 28 April 2002
- On
28 April 2002 the applicant and a friend were travelling by train
from work to his home in Piastów. Supporters of the Legia
football team, who were celebrating their victory in the Polish
league, were travelling on the same train. Among the football
fans there were some hooligans, who started smashing windows and
vandalising the carriages. The train attendants called the police.
- Around
midnight the train stopped at Warsaw-Włochy station and the
police entered the carriage. The applicant was hit in the face with
a truncheon by police officer K. and dragged out of the train
onto the platform. He was bleeding heavily but was ordered to lie on
the ground. The police officer insulted him. Subsequently, the police
officers called an ambulance and the applicant was taken to
Wolski Hospital in Warsaw.
One
of the supporters, an acquaintance of the applicant, who had
protested against the use of force against the applicant, was
immobilised by the police officers on the platform and
handcuffed.
- The
certificate from the ambulance team stated that the applicant
received assistance on 29 April 2002 at 00.40 a.m. at Warsaw-Włochy
station. It contained the following description of the applicant's
injuries: wound to the right side of jaw 2 cm long, teeth knocked out
(no. 5 upper and nos. 5,6,7,8 lower).
- On
29 April 2002 the medical certificate from Wolski Hospital stated as
follows:
“Condition after being beaten, wound to the jaw.
Head injury. Condition after being beaten yesterday. He states that
he was hit several times with a rubber truncheon on the head. He
did not lose consciousness. Yesterday vertigo and nausea. Today
no complaints. X-ray of the head and face with no changes.
Difficulties in opening mouth, individual teeth knocked out. A
consultation with a face surgeon is recommended. Further care in
the district [hospital]. The wound stitched, examination by a surgeon
in two days. Under observation for eight hours.”
- A
certificate by a dentist, Dr. E. K., dated 29 April 2002, stated:
“The patient came in the day after he had been
beaten. Left cheek swollen. Fractured teeth nos. 4, 6 and 5. Tooth
pulp exposed. Teeth loose, second degree.”
- A
certificate by a doctor, E. T., a court expert, dated 2 May 2005,
provides as follows:
“[The applicant] was examined on 30 April 2002 and
2 May 2002.
Established:
1) Swollen and painful left cheek.
2) Wound to the chin on the right side, about 2 cm long,
stitched.
3) Tooth cavities as described in the dentist's
certificate of 29 April 2002.
[Medical certificates of 29 April 2002 listed and
quoted.]
On the basis of the examination and the above-mentioned
medical certificates it is established that the [period of]
incapacity exceeds seven days.”
B. The criminal proceedings against the police officers
- On
7 May 2002 the applicant requested the Warsaw District Prosecutor
(Prokurator Rejonowy) to initiate criminal proceedings against
the police and in particular police officer K. The applicant asserted
that on 28 April 2002 he had been beaten by the police and had
sustained serious injuries.
- On
10 March 2003 a doctor, L. S., submitted a forensic report in which
he answered questions put by the prosecutor. The report states
as follows:
1. What injuries did the applicant sustain on 28 April
2002?
I establish on the basis of the medical certificates
previously referred to that on 28 April 2002 the applicant
sustained fractures of teeth 4 and 6 on the upper left side and tooth
5 on the lower left side, a chin wound and a swollen left cheek.
2. Could those injuries have been sustained in the
circumstances described by the witnesses?
Yes, the injuries described above could have been
sustained in the conditions and circumstances described by the
witnesses, that is, as a consequence of a blow by a blunt
and solid object that could have been a truncheon of the “tonfa”
type.
3. Could they have been sustained during the arrest by
police officers K. and C.?
Yes, those injuries could have been sustained during the
arrest by those police officers.
4. Did those injuries cause incapacity for a period
exceeding seven days?
The above injuries amounted to bodily harm resulting in
incapacity for a period exceeding seven days within the meaning of
Article 157§1 of the Criminal Code.”
- On
12 April 2003 the Warsaw District Prosecutor discontinued the
investigation into the actions of the police. The prosecutor had
questioned several witnesses, including other passengers and police
officers C. and K. Police officer K. stated that the applicant had
not obeyed an order to show his identification card and had started
to struggle with officer C. He had then warned the applicant that he
would use a truncheon and had hit him once on the arm. The prosecutor
established beyond any doubt that police officer K. had used the
truncheon against the applicant. It could not be established
where exactly on the train the events had taken place. The applicant
maintained that he had been hit next to the door of the train, but
other witnesses submitted that he had been inside the carriage or
outside on the platform. The prosecutor concluded as follows:
“It appears from the statements of police officers
C. and K. that the passengers on the train, the majority of them
football supporters, did not comply with their orders. This gave them
a ground to apply coercive measures and to use truncheons
or handcuffs. Given the aggressive behaviour of the passengers
those coercive measures corresponded to the exigencies of the
situation and were necessary to ensure that their orders were obeyed.
[It should be concluded] that there is not sufficient
evidence that the police officers overstepped their powers in breach
of the interest of [the applicant]. Since [the applicant] sustained
the injuries as a consequence of the police actions he could seek
damages in civil proceedings, as the limitation period has not yet
elapsed.”
- On
26 May 2003 the applicant lodged an appeal against the decision. He
submitted that the prosecutor had failed to analyse the facts of the
case and to clarify the circumstances in which he had sustained the
injuries. In particular it was not explained how the applicant
could have sustained head and facial injuries, since the police
officer had admitted only to having hit him once on one arm.
Moreover, he argued that the police officer had overstepped his
powers and that there was no justification for use of the truncheon
against him, as he had not provoked it. The applicant also complained
that the authorities had failed to take into consideration the fact
that he was not a football supporter and had nothing to do with the
hooligans who were travelling on the same train.
- On
22 August 2003 the Warsaw District Court dismissed his appeal. The
court considered that the prosecutor had correctly established the
facts and assessed the circumstances of the case. The decision
further stated:
“While it appears from the opinion of the forensic
expert that the applicant's injuries could have been sustained as a
consequence of the intervention of the police officers on 28 April
2002, nevertheless, in the light of the evidence collected, it cannot
be established that police officers C. and K. overstepped their
powers. They acted within their competence and the use of the
coercive measures of truncheons and handcuffs corresponded to the
exigencies of the situation; that is, to the aggressive behaviour of
the passengers. The court considers that, contrary to the allegations
made in the appeals, all the necessary steps were taken during the
investigation in order to establish the objective truth.
The finding of whether or not [the applicant] had
anything to do with the hooligans' actions, that is, the vandalism of
the train, cannot have any bearing on the decision on the
merits, in a situation where the police officers were intervening in
connection with those events. They were carrying out their duties
given the aggressive behaviour of the passengers on the train.
In the light of the above the court found that the
impugned decision was correct and decided as in the operative part.”
C. The criminal proceedings against the applicant
- On
30 January 2003 the applicant was indicted before the Warsaw District
Court. He was charged with damaging the train carriage and using
violence against the police officers.
- On
14 May 2007 the Warsaw District Court acquitted the applicant of both
charges. The court established that the applicant had been calm and
“in contrast to other defendants had been sober and had been
coming back from work and not from the football match”. As
regards the course of the events the court established that during
the intervention of the police, police officer K had ordered the
applicant, who was standing by the door, to return to the carriage.
The court then stated:
“In reply [the applicant] had asked the police
officer: “would you hit me, sir?” As [the applicant]
had not complied with the order, police officer [K] used a coercive
measure, i.e. the “tonfa” truncheon. A blow to the
stomach caused [the applicant] to bend forward, and the blows which
followed struck his face. Afterwards the
applicant was laid out on the platform.”
On
the basis of the testimonies of the applicant and other witnesses,
which had been considered consistent and truthful, the court
established that during the police intervention the applicant had
displayed passive resistance and had not used force against the
police officers. The court also dismissed the testimonies of the
police officers regarding the circumstances in which they had used
the truncheon against the applicant as lacking credibility and
unconfirmed by other evidence.
It
appears that no appeal was lodged against the judgment and that
it is final.
II. RELEVANT DOMESTIC LAW
- Section
5 of the Ordinance of the Council of Ministers of 17 September
1990 on the Use of Coercive
Measures by the Police (“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...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been ill-treated by the police
officers, and that the authorities had failed to carry out an
effective investigation, in breach of Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- 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. The parties' submissions
- The
applicant submitted that as result of the police officers' actions he
had sustained a number of injuries which were sufficiently serious
to amount to ill-treatment within the scope of Article 3 of the
Convention. The police had used excessive force against him and their
use of the truncheon had been contrary to the domestic law in that he
had been hit on the head with it.
The
applicant further submitted that the investigation into his
allegations had not been effective as the prosecutor had discontinued
the investigation against the police.
- The
Government decided not to comment on the merits of the application.
They confirmed that regard being had to the 1990 Ordinance, which
lays down the rules on the use of force and, in particular,
truncheons, the actions of the police officers had been in breach of
the relevant domestic law. However, the Government submitted that the
applicant had been arrested in the course of an unplanned
operation which could have given rise to unexpected developments
to which the police had had to react without prior preparation.
According to the Government, the police had had recourse to a degree
of force which had been made necessary by the applicant's conduct.
2. The Court's assessment
a) Alleged ill-treatment by the police
- The Court reiterates that 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/or mental effects and,
in some cases, the sex, age and state of health of the victim
(see Ireland v. the United Kingdom, judgment of
18 January 1978, Series A no. 25, p. 65, § 162).
- The
Court reiterates that where a person is injured while in detention or
otherwise under the control of the police, any such injury will give
rise to a strong presumption that the person was subjected to
ill-treatment (see Bursuc v. Romania, no. 42066/98,
§ 80, 12 October 2004). The Court also points out that where an
individual, when taken into police custody, is in good health,
but is found to be injured at the time of 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 Tomasi v. France, judgment of
27 August 1992, Series A no. 241-A, pp. 40-41,
§§ 108-11, and Selmouni v. France [GC],
no. 25803/94, § 87, ECHR 1999-V).
- 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).
- Turning to the circumstances of the present case, the
Court observes that the applicant sustained an injury to his face,
which required stitches, and that three of his teeth were knocked out
(see paragraphs 8 - 11 and 13 above). Those injuries were
sufficiently serious to amount to inhuman and degrading treatment
within the scope of Article 3 (see, for example, Afanasyev v.
Ukraine, no. 38722/02, § 61, 5 April 2005).
It remains to be considered whether the State should be
held responsible under Article 3 for the injuries.
- The
burden rests on the Government to demonstrate with convincing
arguments that the use of force which resulted in the applicant's
injuries was not excessive (see, mutatis mutandis, Rehbock
v. Slovenia, no. 29462/95, § 72, ECHR 2000-XII,
and Matko v. Slovenia, no. 43393/98, § 104,
2 November 2006.
- However,
the Government avoided expressing their opinion on the merits of the
case. They did not contest the applicant's account of the events,
particularly his allegations of having been hit in the face several
times with a police truncheon (see paragraphs 7 and 9 above).
The
Government acknowledged that the domestic law prohibited hitting a
person in the face with a truncheon. However, they considered that
the use of force by the police had been made necessary by the
applicant's conduct.
- The
Court considers nevertheless that the Government did not advance any
argument that would allow the Court to establish that the applicant's
conduct was of such character as to justify recourse to the
considerable physical force that, judging by the seriousness of the
injuries, must have been employed by the police (see Dzwonkowski
v. Poland, no. 46702/99, § 55, 12 April 2007).
- The
Court further observes that the prosecutor in the investigation
against the police officers found that they had hit the applicant
with the “tonfa” type truncheon, but only on his arm.
No consideration had been given as to how the serious injuries
to the applicant's face could have occurred (see paragraph 37 below).
It was only in the criminal proceedings against the applicant that
the domestic court established on the facts that the applicant had
been on his way home and that he had been calm and had not struggled
with the police officers. The domestic court found that the applicant
had been hit by police officers several times with a truncheon in the
face (see paragraph 18 above). These facts and conclusions were not
contested as they were not taken on appeal by the prosecutor.
- Regard
being had to the above findings, the Court can only conclude that the
applicant was violently assaulted by the police officers without any
justification, and contrary to the domestic law, causing him serious
injury.
There
has accordingly been a substantive violation of Article 3 of the
Convention.
b) Adequacy of the investigation
- 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. As with an investigation under
Article 2, such investigation should be capable of leading to
the identification and punishment of those responsible. Otherwise,
the general legal prohibition of torture and inhuman and
degrading treatment and punishment would, despite its fundamental
importance, be ineffective in practice and it would be possible in
some cases for agents of the State to abuse the rights of those
within their control with virtual impunity (see, among other
authorities, Labita v. Italy [GC], no. 26772/95, §
131, ECHR 2000-IV).
- An
investigation into serious 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 v. Bulgaria, 28 October 1998, §§ 103
et seq, Reports of Judgments and Decisions 1998 VIII).
They must take all reasonable steps available to them to secure the
evidence concerning the incident, including, inter alia,
eyewitness testimony and forensic evidence (see Tanrıkulu
v. Turkey [GC], no. 23763/94, ECHR 1999-IV, §§ 104
et seq., and Gül v. Turkey, no. 22676/93,
§ 89, 14 December 2000). Any deficiency in the investigation
which undermines its ability to establish the cause of injuries or
the identity of the persons responsible will risk falling foul of
this standard.
- Turning
to the circumstances of the instant case, the Court notes that
following the applicant's complaint the public prosecutor carried out
an investigation. It is not, however, persuaded that this
investigation was sufficiently thorough and effective to meet the
above requirements of Article 3.
- The
Court finds it particularly unsatisfactory that the prosecutor was
prepared to conclude that the police officers had not overstepped
their duties even though he established that the applicant had been
hit by a police officer with a truncheon, apparently only on the arm,
yet had sustained serious injuries to his face. The Court finds that
the prosecutor did not make any attempt to give a logical explanation
as to how the applicant could have sustained serious injuries to his
face, in particular fractures of his teeth, other than as a
consequence of being hit in the face and on the head with
a truncheon. Nor was any consideration given to the fact that
domestic law forbids the use of a police truncheon against a person
who has been displaying passive resistance and, in any event, against
anybody's head.
- Secondly,
the Court notes that the prosecutor did not find it necessary to
establish how the applicant's behaviour had apparently prompted the
police to use force. The Court recalls that in the subsequent trial
against the applicant the domestic court established that he had not
been violent and had not belonged to the group of hooligans damaging
the carriages.
- The
prosecuting authorities unconditionally accepted the statements of
the police officers without taking any note of the fact that they
obviously had an interest in the outcome of the case and in
minimising their responsibility (see Dzwonkowski, cited above,
§ 65).
- The
Court is struck by the fact that when the case was brought to a court
in criminal proceedings instituted against the applicant, the
findings were completely different. The court was able to establish
that the applicant had not been under the influence of the alcohol,
had been coming home from work and, although he had been calm, had
been assaulted by the police officer. Moreover, it found that the
statements of the police officers, on which the prosecutor had based
his assessment, had lacked credibility. The Court considers that the
very fact that, once the domestic court had a chance to examine
the evidence during the trial, it reached such clearly contrasting
findings shows that the prosecutor's investigation into the
applicant's allegations had been deficient.
It
should also be noted that there is no indication that since the
applicant's acquittal in May 2007 the prosecuting authorities have at
least considered resuming or re-opening the investigation into the
applicant's allegations that he had been beaten up by the police
officers.
- Finally,
the Court is unable to endorse the prosecutor's opinion, expressed
when winding up the investigation, that the applicant's appropriate
recourse lay with the civil courts (see paragraph 14 above).
According to the Court's established case-law, when an individual
makes a credible assertion that he has suffered treatment
infringing Article 3 at the hands of agents of the State, it is the
duty of the national authorities to carry out “an effective
official investigation” capable of establishing the facts and
identifying and punishing those responsible and this obligation
cannot be fulfilled merely by awarding damages (see Kaya v.
Turkey, 19 February 1998, § 105, Reports
1998 I and Assenov and Others v. Bulgaria, cited
above, § 102). Accordingly, in examining the applicant's
arguable claim that his injuries had been sustained at the hands
of the police, the prosecutor should have displayed particular
diligence and the availability of civil proceedings for damages did
not absolve him from the obligation to conduct a thorough and
effective investigation.
- 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.
- It
is true that the domestic court in the criminal proceedings against
the applicant had found that the police officers, without any
justification, had severely beaten the applicant. However this
finding cannot be considered to compensate for the woeful failure to
investigate the applicant's own complaint in a manner compatible with
Article 3 requirements.
- In
view of the lack of a thorough and effective investigation into the
applicant's arguable claim that he had been beaten by police
officers, the Court finds that there has been a procedural violation
of Article 3 of the Convention.
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
applicant claimed 15,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government did not comment on this claim.
- The
Court awards the applicant EUR 10,000 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed EUR 1,700 for the costs and expenses incurred
before the domestic courts and the Court. According to the bills
submitted by the applicant's representative, this sum included
890 Polish zlotys (PLN) for the representation of the
applicant before the domestic court in 2003 and PLN 5,000 for the
costs of the applicant's representation before the Court.
- The
Government did not comment on these claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum claimed in full. It thus
awards EUR 1,700 covering costs under all heads.
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 the applicant's ill-treatment;
- Holds that there has been a violation
of Article 3 of the Convention on account of the
absence of an effective investigation into the applicant's
allegations of ill-treatment;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into Polish zlotys at the rate applicable at
the date of settlement:
(i) EUR
10,000 (ten thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage,
(ii) EUR
1,700 (one thousand seven hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 May 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
