In the case of Réti and Fizli v. Hungary,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
FrançoiseTulkens,
President,
DanutėJočienė,
DragoljubPopović,
IsabelleBerro-Lefèvre,
AndrásSajó,
IşılKarakaş,
GuidoRaimondi, judges,
andFrançoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 4 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
31373/11) against the Republic of Hungary lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by twoUS/Hungarian double nationals, Mr Gergely
Miklós Réti and MrsZ. V. Fizli (“the applicants”), on 16 May 2011.
The applicants were represented by Mr G.
Győző, a lawyer practising in Budapest. The Hungarian Government
(“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public
Administration and Justice.
The applicants alleged under Article 3 of the
Convention that they had been subjected to ill-treatment by the police and that
the investigation into it had not been adequate.
On 15 November 2011the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1962 and 1976
respectively and live in Budapest.
At about 3.45 a.m. on 1 October 2006 the
applicants were riding a motorbike in Budapest. Police Officers N. and S.
halted them in order to carry out an identity check. The applicants produced
American passports.
1. The applicants’ version of the incident
According to the applicants, the procedure to
check their identities degenerated as follows. After Mr Réti’s stepping aside
and attempting to make a cell phone call, Officer N. started to behave
aggressively and repeatedly kicked him. Officer S. first tried to restrain his
partner, but following a remark made by Ms Fizli, he also became aggressive;
the officers hit Mr Réti repeatedly and finally handcuffed him, forcing him to
the ground. Subsequently, reinforcement was called in. Several officers arrived
and joined their colleagues in hitting Mr Réti. When Ms Fizli
intervened, an officer pushed her in the chest and then down on the ground,
knelt on her face, ordered her to shut up, and finally banged her head against
the soil. Simultaneously, another officer knelt on Mr Réti’s back, while an
officer forced his truncheon against his neck, thus compressing his throat.
Mr Réti lost consciousness. Eventually, the applicants were driven to the
police station in two separate police vehicles.
2. The Government’s version of the events
The Government gave the following account of the
incident. Despite their understanding of the purpose of the police measure, Mr
Réti and Ms Fizli initially insisted on speaking English and were not
willing to cooperate, therefore the police officers, Officer N. and
Officer S., applied force. As Mr Réti resisted, the police patrol called in
reinforcements and handcuffed him with the help of the officers just arriving.
Ms Fizli questioned in anger the police officers applying force against
her partnerand, in the heat of the argument, suddenly turned againstOfficer P.,
one of the reinforcement officers. It was perceived that she was trying to hit
the officer with the cell phone she held in her hand. Officer P. raised his
handsin defence and pushed her away. Ms Fizli bounced back from the officer’s
hands, lost her balance and fell against the officer standing behind her, who
immobilised her.
Mr Réti was then driven to the police station on suspicion of
drunken driving and violence against an official. In the police car,hefuriously
banged his head against the window and kept kicking the window; therefore,
force had to be used to restrain him. On account of her behaviour and lack of
cooperation, Ms Fizli was also handcuffed, placed in another police car and
taken to the police station.
Committed to the Budapest II District Police
Headquarters, the applicants were tested for blood alcohol levels. Mr Réti was
under very mild influence (0.45 g/l)while Ms Fizli was under none.
Subsequently, the applicants were released.
3. The applicants’ injuries
According to the medical report submitted, Mr
Réti suffered the following injuries: a contusion and a haematoma on the right
cheek, another over the right eye, a further one behind the right knee, several
abrasions and contusions on the chest and the belly, and a brain commotion. Ms
Fizli had haematomas on her right wrist, several contusions on her right palm,
a contusion on her left foot, and a haematoma with a contusion on the right
side of her waist.
4. Subsequent proceedings
On 9 October 2006 the applicants filed a
criminal report for ill‑treatment in official proceedings. In the
subsequent proceedings they maintained in essence the above version of the
events. Officers N., S. and P. were interrogated as witnesses. They stated that
only lawful force had been applied to overcome the applicants’ resistance.
A forensic expert was appointed, according to
whose opinion it could not be determined whether the applicants’ injuries had
been caused as they suggested or according to the officers’ version.
On 11 June 2007 the Budapest Investigation
Office discontinued the investigation, essentially with regard to the
inconclusive medical evidence.
In different proceedings conducted against the
applicants for violence against officials, Officers N., S., P. and V. were
heard as witnesses. Officers N. and S. were also confronted with the
applicants. This procedure was eventually discontinued on 15 May 2007 for want
of conclusive evidence.
The applicants filed a complaint against the
discontinuation of their case (see paragraph 13 above). They submitted a number
of motions in order to have more evidence taken. However, on 24 July 2007 the
Budapest Public Prosecutor’s Office dismissed the complaint.
On 27 September 2007 the applicants, acting as
substitute private prosecutors, filed a motion with the Budapest Regional Court.
The court held five hearings and heard the applicants as well
as Officers N., S. and P., along with several witnesses. It took testimonies
from the other officers present at the incident and the medical expert. In
these proceedings, no confrontation took place, although Ms Fizli by then
stated that an Officer M. – rather than the accused Officer P. – had
brutalised her. For the court, this amounted to aninconsistency.
In his final address to the court, the applicants’ lawyer
pointed out that several contradictions in the file and the testimonies were
not resolved. In particular, it remained unclear how many times and under what
circumstances the officers had forced the applicants to the ground, and how the
applicants could strongly smell of alcohol (as reported by the officers) given
the very low blood values.
On 5 October 2009 the court acquitted the
accused, observing inter alia that the medical evidence was
inconclusive.
The applicants appealed. On 21 October 2010 the Budapest Court
of Appeal held a hearing and upheld the acquittal (service: 29 November 2010).
II. RELEVANT DOMESTIC LAW
Act no. XIX of 1998 on the Code of Criminal
Procedure provides:
Chapter IX
Title III – Conduct of the
investigation
Discontinuation of the investigation
“Section 190 (1) The public prosecutor shall, by decision,
discontinue the investigation:
a) if the action does not constitute a criminal offence,
b) if, on the basis of the results of the investigation, the
commission of a criminal offence cannot be established and no result can be
expected from the continuation of the procedure,
c) if the criminal offence was not committed by the suspect, or
on the basis of the results of the investigation it cannot be established
whether or not the criminal offence was committed by the suspect,
d) if a ground excluding punishability occurs, unless it
appears necessary to order involuntary treatment in a mental institution,
e) due to the death of the suspect, lapse of time or pardon,
f) due to other statutory grounds eliminating punishability,
g) if there has been no private motion, request or complaint,
and none can be submitted subsequently,
h) if the action has already been adjudicated by a final
decision, including the case regulated in section 6 of the Criminal Code,
i) if the identity of the perpetrator could not be established
in the investigations,
j) [the prosecutor shall discontinue the investigation and
issue a reprimand] if the action committed by the suspect no longer poses a
threat – or poses such an insignificant level of threat – to society that even
the imposition of the most lenient punishment allowed under the law or the
application of any other measure is unnecessary.”
“Section 191 (1) Unless an exception is made in this Act,
discontinuation of the investigation shall not prevent the subsequent
resumption of the proceedings in the same case.
(2) Resumption of the proceedings shall be ordered by the
public prosecutor or, if the investigation was terminated by a public
prosecutor, by a senior prosecutor. If the suspect was reprimanded (section 71
of the Criminal Code), the public prosecutor or the senior prosecutor, respectively,
shall quash the decision discontinuing the investigation. Against the decision
ordering resumption of the investigation, no objection shall lie.
(3) If no objection was filed against the discontinuation of
the investigation or the senior prosecutor did not order the resumption of the
investigation, subsequently only a court can order the resumption of the
investigation against a person in respect of whom the investigation had
previously been discontinued.
(4) If the court rejected the motion for the resumption of the
investigation, a repeated motion for resumption on the same ground shall not be
allowed.”
“Section 207 (1) Prior to the preferment of the bill of
indictment, the responsibilities of the court shall be performed at first
instance by the judge designated by the president of the county court
(‘investigating judge’).
(2) The investigating judge shall...
c) decide on the resumption of an investigation after its
discontinuation (section 191(3)).”
Title IV – Remedy during
the investigation
“Section 195 (6) A motion for review may be filed with the
public prosecutor’s office against [certain] decisions ..., and against a
decision rejecting a complaint against a prosecutorial decision ... within
eight days of delivery. The prosecutor’s office shall forward the motion for
review and the case file to the court [i.e. the investigating judge] within
three days.”
“Section 198 (1) If the criminal report was filed by the
aggrieved party, he may submit a complaint against the rejection of the report
within eight days of its delivery in order to have the investigation ordered.
(2) If the prosecutor terminated the investigation, the
aggrieved party may file a complaint with a view to the continuation of the
procedure within eight days of the delivery of the decision on
discontinuation.”
“Section 199 (1) On the basis of the complaint, the prosecutor
or the senior prosecutor may:
a) quash the decision rejecting the report or terminating the
investigation, and deliver a decision on ordering or continuing the
investigation or on pressing charges;
b) reject the complaint if he finds it unfounded.
(2) After the rejection of his complaint, the aggrieved party
may act as a supplementary private prosecutor if:
a) the report was rejected under section 174(1) a) or c), or
b) the investigation was terminated under section 190(1) a) to
d) or f).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicants complained that they had sustained
ill-treatment by the police and that the ensuing investigation had not been
adequate. They relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested that argument.
A. Admissibility
The Government argued that the applicants should
have requested the investigating judge to re-open the case under section 191(3)
of the Code of Criminal Procedure. By not availing themselves of this
procedural avenue, they did not exhaust domestic remedies.
The applicants pointed out that section 191 of
the Code of Criminal Procedure concerned cases where the investigation was
discontinued without an indictment. In the present case, however, substitute
private prosecution had taken place, followed by a criminal court procedure
resulting in a final and binding judgment, not susceptible to a resumption of
the investigation by the investigation judge. Therefore, this legal instrument
could not be considered effective in the circumstances.
The Court recalls that the obligation to exhaust
domestic remedies requires that an applicant make normal use of remedies which
are effective, sufficient and accessible in respect of his Convention
grievances. To be effective, a remedy must be capable of remedying directly the
impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20
July 2004). The existence of the remedies in question must be sufficiently
certain not only in theory but in practice, failing which they will lack the
requisite accessibility and effectiveness (see Akdivar and Others v. Turkey,
16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV).
In the present circumstances, the Court however considers
that it is not necessary to embark on a closer scrutiny of the parties
arguments’ about the effectiveness of a motion to be submitted to the
investigating judge, since in any case, the Government have not produced any
evidence to show that such a request has proved effective in similar cases and
would consequently constitute a remedy to be exhausted in the circumstances.
Moreover, the Court notes that the applicants
filed a criminal report concerning the alleged ill-treatment and pursued
substitute private prosecution as well.
It follows that the application cannot be
rejected for non-exhaustion of domestic remedies (see Gubacsi v. Hungary, no. 44686/07, §§ 30 to 33, 28 June
2011). Furthermore, the Court considers that it 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
a. The Government
The Government stressed, as a cardinal
consideration, that the medical evidence in the case was inconclusive (see
paragraph 12 above). Moreover, they argued that the applicants had been under
the influence of alcohol and resisteda lawful police measure, which had
necessitated the use of force. However, the nature and severity of the injuries
sustained did not indicate that the officers had had recourse to excessive
force. Nor did those injuries attain the level of severity which is required to
bring Article 3 into play.
Furthermore, the authorities had carried out an
effectiveinvestigation into the applicants’ allegations of ill-treatment,
during the course of which the protagonists could freely present their
positions and the authorities, including two court instances, addressed their
arguments in detail. In the Government’s view, the fact that the proceedings
had resulted in no criminal conviction did not undermine the effective
character of the investigation.
b. The applicants
The applicants also noted that the forensic
expert’s opinion was inconclusive. They emphasised nevertheless that it did not
exclude their version of the incident. As regards the injuries sustained, they
maintained that they were serious enough to bring Article 3 into play. They
further stressed that Mr Réti had been under mild and Ms Fizli under no
influence of alcohol; therefore, no aggressive conduct on their part, caused by
intoxication, warranted the use of force. Concerning Ms Fizli’s contradictory
statements about the identity of the officer who had allegedly ill-treated her
(see paragraph 16 above), the applicants argued that this was due to the absence
of an identification parade during the investigation – an omission ignored by
the trial court.They also drew attention to the fact that the criminal
proceedings conducted against them had been discontinued for want of conclusive
evidence (see paragraph 13 above) and moreover, that some contradictions in the
testimonies of the officers had not been resolved (see paragraph 16 above).
As to the adequacy of the investigation into their complaints,
the applicants submitted that the public prosecutor had failed to pursue the
case, and it could reach the court only by virtue of their motion of private
prosecution. Furthermore, they argued that in cases of alleged police
brutality, the burden of proof was on the State, and it should not have been up
to them to produce “conclusive evidence”, as expected by the domestic court. In
particular, the State should prove that the use of force was indispensable and
that it did not exceed the degree necessary in the circumstance.
2. The Court’s assessment
Article 3 of the Convention, as the Court has
observed on many occasions, enshrines one of the fundamental values of
democratic society. Even in the most difficult of circumstances, such as the
fight against terrorism or crime, the Convention prohibits in absolute terms
torture or inhuman or degrading treatment or punishment. Unlike most of the
substantive clauses of the Convention and of its Protocols, Article 3 makes no
provision for exceptions and no derogation from it is permissible under Article
15 even in the event of a public emergency threatening the life of the nation.
The Court recalls 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. 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 Tekin v. Turkey, 9 June 1998, §§ 52 and 53, Reports of Judgments
and Decisions 1998–IV).
The Court notes that as a result of the police
intervention, Mr Réti sustained a contusion and a haematoma on the right
cheek, another over the right eye, a further one behind the right knee, several
abrasions and contusions on the chest and the belly, and a brain commotion,
whereas Ms Fizli had haematomas on her right wrist, several contusions on
her right palm, a contusion on her left foot, and a haematoma with a contusion
on the right side of her waist(see paragraph 10 above).
The Court considers that the injuries suffered
by the applicants were serious enough to bring the matter within the scope of
Article 3.It remains to be considered whether the State should be held
responsible under Article 3 for these injuries.
The Court observes that the applicants were
apprehended in the course of an identity check carried out by the police on the
suspicion of their drunken driving. It notes the Government’s assertion that
the coercion applied by the police was necessitated by the applicants’ alleged
resistance to a lawful measure. However, it takes the view that the Government
have not furnished any convincing or credible arguments which would provide a
basis to explain or justify the degree of force used during the operation. In
particular, it has not been clarified what particular conduct on the applicants’
side warranted a reaction in the course of which Mr Réti suffered numerous
haematomas, contusions and a commotion, and Ms Fizli sustained several
haematomas and contusions as well. Especially in the face of the fact that the
applicants eventually proved to be respectively under very mild and no
influence of alcohol, the Court finds that the Government’s explanation for the
incident sitsuncomfortably with the circumstance that several law enforcement
agents were involved in the scene, who should have been able to master the
situation without causing such injuries. For the Court, this is so even if the
applicants were unwilling to cooperate with those officers or if Ms Fizli’s
sudden gesture (see paragraph 8 above) was mistaken for an attempted hit – an
assumption hardly conceivable in the circumstances.
It is true that the forensic evidence was inconclusive as to
the origins of the applicants’ injuries (see paragraph 12 above); however, for
the Court, the fact remains that the applicants were released from custody with
a range of injuries not accounted for convincingly by the Government.
The Court would further note that the criminal proceedings
conducted against the applicants were eventually discontinued for want of
evidence (see paragraph 14 above).
Since the Government have not shown the contrary, the Court
cannot but conclude that, even assuming that the situation objectively required
the use of force, the extent to which it was applied was excessive. Such use of
force resulted in injuries and suffering of the applicants, amounting to
degrading treatment.
Moreover, as regards the applicants’ complaint
about the adequacy of the investigation, an issue falling under the procedural
limb of Article 3 (see Labita v. Italy [GC], no. 26772/95, § 131,
ECHR 2000-IV), the Court notes at the outset that no internal investigation or
disciplinary procedure appears to have been carried out within the police force
concerning the appropriateness of the police action.
It further observes that in pursuit of the criminal report
filed by the applicants, a criminal investigation was launched but then
discontinued. Substitute private prosecution was required on the applicants’
side to have the case examined by a court. In these proceedings, several
witnesses were heard and testimonies were obtained from the protagonists. However,
these testimonies were, for the domestic court, irreconcilable with the
inconclusive medical evidence and the principle of presumption of innocence
favouring the accused officers. No genuine effort, in particular in the form of
confrontations, was made to resolve the contradictions in these proceedings.
Finally, no individual criminal responsibility of any particular police officer
could be established.
In these circumstances, the Court finds that there has been no
sufficiently adequate investigation into the applicants’ allegations, capable
of leading to the identification of the alleged perpetrators. For the Court,
this cannot be regarded as having been substituted for by the investigation
into the parallel case conducted against the applicants.
Having regard to the above considerations, the
Court concludes that the applicants have been subjected to degrading treatment
and that no adequate investigation has been carried out into their allegations.
There has, accordingly, been a breach 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
Eachapplicant claimed 10,000 euros (EUR) in
respect of non‑pecuniary damage.
The Government contested this claim.
The Court considers that the applicants must
have suffered some non-pecuniary damage and awards each of them EUR 5,000 in
respect of under this head.
B. Costs and expenses
The applicants also claimed EUR 3,350 for the
costs and expenses incurred before the Court. This sum corresponds to 33 hours
of legal work billable by their lawyer at an hourly rate of EUR 100, plus EUR
50 of clerical costs.
The Government contested this claim.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regardbeing had to the documents
in its possession and the above criteria, the Court considers it reasonable to
award the full sum claimed, that is, EUR 3,350.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holdsthat there has been a violation of
Article 3 of the Convention;
3. Holds
(a) that the respondent State is to pay the
applicants, within three monthsfrom the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, the
following amounts, to be converted into Hungarian forints at the rate
applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros) to each
applicant, plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR 3,350 (three thousand three hundred and
fifty euros) to the applicants jointly, plus any tax that may be chargeable to
the applicants, 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;
4. Dismissesthe remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 25 September
2012, pursuant to Rule77§§2 and3 of the Rules of Court.
Françoise
Elens-Passos Françoise
Tulkens
Deputy Registrar President
