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FOURTH SECTION

 

 

 

 

 

 

 

CASE OF KOVÁCS v. HUNGARY

 

(Applications nos. 21314/15, 21316/15, 21317/15and 21321/15)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

29 January 2019

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Kovács v. Hungary,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Faris Vehabović, President,
Carlo Ranzoni,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 8 January 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in four applications (nos. 21314/15, 21316/15, 21317/15and 21321/15) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by four Hungarian nationals, Mr Róbert Kovács ("the first applicant"), Mr Krisztián Kovács ("the second applicant"), Mr Róbert Kovács Jr ("the third applicant") and Mr Márió Kovács ("the fourth applicant"), on 15 April 2015.

2. The applicants were represented by Mr A. Cech, a lawyer practising in Budapest. The Hungarian Government ("the Government") were represented by their Agent, Mr Z. Tallódi, Ministry of Justice.

3. The applicants alleged, in particular, that they had been ill-treated and discriminated against by the police in breach of Article 3, read alone and in conjunction with Article 14 of the Convention.

4. On 7 December 2017 notice of the complaints concerning Articles 3 and 14 was given to the Government and the remainder of application no. 21316/15was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. On 28 March 2018 third-party comments were received from the European Roma Rights Centre, which had been granted leave by the President of the Section to intervene in the procedure (Article 36 § 2 of the Convention and Rule 44 § 3 (a)).

6. The Government objected to the examination of the applications by a Committee of three judges. Having examined the objection, the Court dismisses it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicants were born in 1976, 1981, 1995 and 1989 respectively and live in Karcsa. They belong to the Roma minority.

8. On 3 September 2013 the applicants, riding in a car driven by the first applicant, arrived at a petrol station in Sátoraljaújhely, at about midnight.

A. The applicants' version of the events

9. At the petrol station two police officers called on the applicants to identify themselves, for no apparent reason. When the first applicant produced his ID, the officers made derogatory remarks about the applicants' Roma origin. Although the applicants offered no resistance, the first applicant was hit in the chest, pressed violently against the car and handcuffed with his hands behind his back. Two additional police cars arrived and the applicants were transported to the Sátoraljaújhely police station.

10. While in the car, the first applicant was hit in the spine and, once at the police station, was dragged, with his bottom against the ground, into the building while being kicked repeatedly. Inside the police station he was hit repeatedly while held in a detention room.

11. At the police station, the second applicant's trousers were pulled off and his testicles squeezed; he was repeatedly hit and kicked and his back was injured with a sharp object. While being assaulted by four or five officers, he was also insulted and told that he, a Roma, should die, or else move away from Sátoraljaújhely.

12. The third applicant was repeatedly hit and kicked at the petrol station and in the patrol vehicle, but not at the police station.

13. The fourth applicant was handcuffed, led to a round table inside the police station, his handcuffs were attached to a leg of the table and his leg was then kicked so that he fell under the table, where he was repeatedly kicked or hit in the head. As a result of the beating, his wrist broke.

14 . When the first applicant asked for a doctor, this was refused by the officers who said that he could have a doctor once he was dead. On release, the officers wanted him to sign a waiver stating he had not been assaulted; since he refused to do so, an officer signed the waiver for him. Intimidated, the other applicants signed the waiver.

B. The Government's version of the events

15. Prior to their arrival at the petrol station, the applicants had had an altercation with the staff of a local night club where they had not been served for apparently being intoxicated. Police Officers Gy.R. and M.P., passing by the petrol station in a patrol vehicle, recognised the car described by the staff of the night club, stopped and proceeded to check the applicants' identities at about 12.45 a.m. The applicants did not co-operate and behaved aggressively towards the officers, calling them names. The officers called in reinforcements. They isolated the first and second applicants from the others, handcuffed them with their hands behind their backs by applying physical restraint, and then placed them in the patrol car. The applicants were yelling gross insults at them.

16. As backup, Police Officers K.L.J., H.Z., M.D., B.R. and D.P.Cs. arrived at the petrol station. They applied physical restraint and handcuffed the third and fourth applicants, and placed them in the police vehicle. All applicants were then transferred to the police station where they were held until after 3 a.m.

17. In the ensuing proceedings, the first applicant stated that he had handed over his wallet containing his ID card to the officers immediately upon being requested to do so. However, two employees of the petrol station testified that the first and second applicants had refused to prove their identities and had addressed the officers in an unacceptable manner, whereas the latter had instructed the applicants in a business-like, official manner.

18. The first applicant also stated in his testimony that he must have been hit on the jaw after he had been seated in the patrol car, for he could not remember anything afterwards until he had been pulled out of the car outside the police station. However, in the original criminal complaint filed by the applicants, no mention had been made of any such blow; and no corresponding injury had been recorded in the ensuing medical report - in which it had, on the other hand, been recorded that the first applicant had not become unconscious and had been able to remember the events clearly. Similarly, the criminal complaint filed by the applicants had not contained any reference to what the first applicant stated in his subsequent testimony, namely that he had been kicked in the head - his left temple - on the flight of steps leading to the entrance of the police station. According to the first applicant, his son, the third applicant, had also seen this. However, the latter had not been able to corroborate this in his testimony.

19. The fourth applicant stated that he had been handcuffed to the leg of a round table. The on-site inspection was unable to confirm this allegation since there had been no round table in the corridor in question at the police station. Furthermore, the fourth applicant alleged that he had suffered a fracture of his left scaphoid bone after he had fallen under the table following being handcuffed to the table leg, where one of the police officers had kept kicking him every ten to fifteen minutes for four to five hours, from the beginning of his detention until his release. He alleged that most of the kicks had hit his head and that there had even been a footprint on his head. His wrist had allegedly been fractured when a kick had hit the handcuff on a hand that he had raised to protect his head. Although the medical examination revealed abrasions of different sizes on various parts of his head, none of those had exceeded 2.5 cm in length and there had been no lesions that had matched a shoe print. In the forensic expert's opinion, the medically documented injuries of the fourth applicant - epithelial abrasions of the forehead, the left eyebrow, the area anterior to the left ear and both knees (see paragraph 24 below) - could have been caused when he had been handcuffed, a measure that he had resisted; the injuries had not been typical of a beating and had only indicated a weak impact. Redness of the wrist had also been observed but had likely been caused by the handcuffing; whereas the left scaphoid bone fracture had been a residual condition of a former fracture that could have occurred years earlier (see paragraph 28 below).

20. The third applicant stated initially that he had been hit by one of the officers at the petrol station, and that his arm had then been tightly squeezed while he had been escorted to the patrol car. Later however, he alleged that he had been hit on the back of the head and his arm while inside the patrol car but had not otherwise been assaulted. He could not give an acceptable explanation for this contradiction.

21. In their testimonies, both the first and the second applicants said that they had been placed in two adjacent detention rooms and repeatedly assaulted every ten to fifteen minutes by several officers for hours on end, involving many blows. However, the medical findings recorded in both cases had indicated only smaller abrasions and bruises. In relation to the first applicant, the fourth applicant mentioned assaults that the first applicant himself had not mentioned during his questioning and which were not described in the criminal report filed by the first applicant either: namely that upon arrival at the police building he had been pulled out of the car and kicked in the spine.

22 . The applicants stated that at the petrol station, one of the officers had said over the radio that "we are taking in gypsies" or "gypsy kids". However, the audio recordings of the radio traffic did not contain such a statement. One officer had said at one point only that "four young Roma men kicked up a fuss at the petrol station".

23. Neither the police officers, nor the security guard on duty at the police station, nor the petrol station staff had provided any support for the allegation that the applicants, who had been under the influence of alcohol and talking to the officers in an extremely rude way, had been assaulted either at the petrol station or in the police building.

C. The applicants' medical examination

24 . The applicants were examined at Sátoraljaújhely Hospital at about 6 p.m. on 4 September 2013. The first applicant was found to have suffusions in his left ear, on his face and chest, on his left arm and elbow, and on his right arm, abrasions on his buttocks, and erythema on both wrists. The second applicant sustained suffusions on his neck and right upper arm, abrasions on his back and lower right arm, and erythema on both wrists. The third applicant was found to have suffusions on his neck and around his right collar bone as well as suffusions and abrasions on both upper arms. The fourth applicant had abrasions on the forehead, above the left eye, next to his ears and on both knees, erythema on both wrists and a fracture of the left scaphoid bone; it was uncertain whether the latter was a recent or an inveterate injury.

D. The ensuing proceedings

25 . The applicants lodged a criminal complaint on 18 September 2013, accusing the officers of ill-treatment. The case was investigated by the Miskolc Investigation Office and, subsequently, by the Debrecen Bureau of the Central Prosecutorial Investigation Office. The public prosecutors in charge of the case obtained video footage, a recording of the police radio traffic, medical reports, police documents, opinions of medical and graphology experts, and testimonies of witnesses, suspects and victims.

26 . On 16 April 2014 the Independent Police Complaints Board, which had been approached by the applicants' lawyer in parallel to the proceedings outlined above, issued a report on the first applicant's case. It found that handcuffing him had not been justified in the circumstances and had been contrary to human dignity, especially since his hands had been handcuffed behind his back. It also found that his prolonged detention at the police station had breached his right to liberty. However, in terms of the entire incident, the Board was not convinced that excessive force had been applied.

With regard to the remainder of the issues, namely the first applicant's rights to health, human dignity, equal treatment and non-discrimination, the Board identified no breach of his fundamental rights, essentially for want of conclusive evidence and because there had been differing versions of events that could not be reconciled.

27 . On 15 May 2014 the Board issued a report on the fourth applicant's case. Its conclusions were similar to those in the first applicant's case.

28 . On 22 and 29 May 2014 the opinions of two forensic experts were obtained in the fourth applicant's criminal case. One expert was of the view that the abrasions and erythema he had sustained could be explained by the melee that had occurred when he had resisted being handcuffed or by his immobilisation. As regards the broken scaphoid bone, the expert found that it was an inveterate lesion that had occurred at least six to eight months prior to the incident. In sum, the expert stated that the fourth applicant's allegation that he had been assaulted for hours on end was not supported by the medical findings. In the other expert opinion, a radiologist stated that the broken scaphoid bone could not have been related to the incident and had occurred years earlier.

29 . On 10 July 2014 the Board issued reports on the second and third applicants' cases. Its conclusions were again similar to those in the first applicant's case.

30. On 21 August 2014 the Investigation Office discontinued the prosecution against the police officers. It held that the testimonies of the applicants had been exaggerated, contradictory and modified several times, and that the findings of fact could not enable it to establish, beyond reasonable doubt, that the injuries had been deliberately caused by the officers exceeding the use of force necessitated by the applicants' own conduct.

31. On 14 October 2014 the Attorney General's Office rejected a complaint by the applicants against the discontinuation order. It pointed out that the witness testimonies and the audio recordings refuted the applicants' allegations of racist motivation and utterances. It further underlined that the applicants' injuries had not provided evidence of any use of force exceeding that which had been prompted by the applicants' own conduct; it also observed that in the forensic medical expert's opinion (see paragraph 28 above), the fourth applicant's scaphoid bone fracture had been a pre-existing condition. As regards the lawfulness and proportionality of the use of force, the Attorney General's Office held that the information available on the case was insufficient to reconcile the opposing versions.

32 . The applicants' attention was drawn to the possibility of pursuing their complaint as substitute private prosecutors, but they did not avail themselves of this legal avenue.

THE LAW

I. JOINDER OF THE APPLICATIONS

33. Given the similarity of the applications, the Court decides to join them in accordance with Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

34. The applicants complained that they had been ill-treated by the police, 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

35. The Government argued that the applicants had not exhausted the available domestic remedies in that they had not pursued a substitute private prosecution (see paragraph 32 above). The applicants disagreed.

36. The Court notes that this legal avenue has already been examined in cases such as M.F. v. Hungary (no. 45855/12, §§ 35-36, 31 October 2017) and Tarjáni v. Hungary (no. 29609/16, §§ 31-32, 10 October 2017). In those cases, it was held that the applicants could not be reproached for not pursuing this remedy. The Court finds no reason to reach a different conclusion in the present applications. The Government's preliminary objection of non-exhaustion of domestic remedies must thus be rejected.

37. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

38. The applicants argued that they had suffered injuries at the hands of the police, for which the Government must account. Their own conduct had not been of the kind that warranted coercion, let alone the use of excessive force. Furthermore, the ensuing investigation had been insufficient, in particular because more weight had been given to the police officers' version of events than to theirs; no adequate efforts had been made to secure the closed circuit television recordings of inside the police station; no conclusive forensic medical opinion had been procured on the fourth applicant's injuries but the persisting doubt had been held against all the applicants; and the reliability of the signatures on the waivers signed by the applicants on their release (see paragraph 14 above) had not been investigated.

39. The Government submitted that the light injuries sustained by the applicants had been caused by the lawful application of handcuffing and physical restraint. The force applied had not been excessive.

40. The European Roma Rights Centre submitted that members of the Roma minority suffered institutional racism, especially when encountering police officers - a phenomenon that it stated was best called "anti-Gypsyism". When a number of similar cases of police brutality against Roma come before the Court from the same State, this represented a worsening situation, which should be treated as such. The current case was an example of anti-Gypsyism and institutional racism; and the Court was invited not to shy away from using those terms. According to the intervener, there was an institutional failure in Hungary to deal with police brutality against Roma.

41. The Court's relevant case-law has recently been summarised in, among many other authorities, the M.F. v. Hungary case (cited above, §§ 42-45).

42. In the present application, the Court observes that it has not been disputed by the parties that the applicants were in good health before the incident in question.

43. On their release from custody, all of them had injuries, namely, numerous bruises, abrasions, suffusions and erythema (see paragraph 24 above), which, for the Court, attain the minimum level of severity required to bring Article 3 of the Convention into play. This is so even if the issue of the fourth applicant's broken scaphoid bone is discarded, given the forensic opinion pointing to its inveterate nature (see paragraph 28 above).

44. It remains to be considered whether the State should be held responsible under Article 3 for these injuries.

45. The Court observes that the applicants were apprehended in the midst of a melee which had evolved in the context of an identity check. It also notes the applicants' allegation that their ill-treatment started at the petrol station, continued in the police cars and persisted afterwards inside the police building. It notes, on the other hand, 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, the Court takes cognisance of the Independent Police Complaints Board's reports, according to which the applicants' handcuffing - around which the Government's explanation revolves - had been unjustified and contrary to human dignity (see paragraphs 26, 27 and 29 above). The use of coercive force in order to apply a measure which has been found to be in breach of the applicants' fundamental rights to liberty and to human dignity cannot, in the Court's opinion, provide valid justification for the injuries sustained by the applicants. The Court would also note that apparently the police officers did not sustain any injuries or recount physically violent behaviour on the applicants' side; rather, it was only verbal aggression that was reproached to them. For the Court, however, such conduct cannot provide justification for use of force entailing injuries such as in the present case (see, mutatis mutandis , Bouyid v. Belgium [GC], no. 23380/09, § 108, ECHR 2015).

46. Since the Government have not shown evidence to 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 unjustified. Such use of force resulted in injury to the applicants, amounting to degrading treatment.

47. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention. It considers that it is not necessary to address separately the parties' further arguments about the details of the investigation.

III. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION

48. The applicants further complained of a violation of Article 14 read in conjunction with Article 3 of the Convention.

Article 14 reads as follows:

"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

49. The applicants submitted that their ill-treatment by the police had been the result of racial discrimination, that is to say, it had been due to their Roma origin, attested by the numerous racist verbal insults voiced by the officers during the incident. Furthermore, the ensuing investigations had not adequately addressed this particular issue.

50. The Government submitted that it was the applicants' own conduct rather than their ethnic origin that had led to the incident. The authorities in the investigation had paid due attention to the possibility of racial bias in the case.

51. The European Roma Rights Centre submitted that the Court should not apply the "beyond reasonable doubt" test to determine whether there was a violation of Article 14 taken in conjunction with the substantive limb of Article 3 in cases such as the present one; rather, the burden of proof should shift to the respondent State.

52. The Court observes that there is no convincing evidence in the case file disclosing any appearance of discriminatory conduct on the part of the police (contrast Moldovan and Others v. Romania (no. 2) , nos. 41138/98and 64320/01, § 139, ECHR 2005-VII (extracts)). It is true that, in the Government's submission, one officer said at one point that "four young Roma men kicked up a fuss at the petrol station" (see paragraph 22 above). However, the Court is not persuaded by this element alone, in contrast with the fact that the racist insults referred to by the applicants are not supported by any evidence and that the Independent Policing Complaint Board was, for its part, unable to identify any appearance or element of racial discrimination. Moreover, the Court notes that the investigation addressed this question and included, in particular, an examination of the audio recordings of the police radio traffic (see paragraph 25 above), but revealed no evidence in support of the applicants' complaint.

53. This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

54. 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

55. Each applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

56. The Government contested this claim as excessive.

57. The Court awards, on the basis of equity, each applicant EUR 9,000 in respect of non-pecuniary damage.

B. Costs and expenses

58. The applicants jointly claimed EUR 1,500 plus VAT for the costs and expenses incurred before the domestic courts, and EUR 7,765 plus VAT for those incurred before the Court. The latter amount corresponded to 51 hours of legal work billable at an hourly rate of EUR 150 plus VAT and to 2.3 hours of paralegal work billable at an hourly rate of EUR 50 plus VAT. Moreover, they jointly claimed EUR 500 for the costs of medical examinations undertaken for the purposes of the domestic proceedings.

59. The Government contested these claims.

60. 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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award to the applicants, jointly, the sum of EUR 6,000 covering costs under all heads.

C. Default interest

61. 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. Decides to join the applications;

 

2. Declares the complaint concerning Article 3 admissible and the remainder of the applications inadmissible;

 

3. Holds that there has been a violation of Article 3 of the Convention;

 

4. Holds

(a) that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 9,000 (nine thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 6,000 (six thousand euros) to the applicants jointly, plus any tax that may be chargeable to them, 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;

 

5. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 29 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Faris Vehabović
Deputy Registrar President