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FOURTH
SECTION
CASE OF KARBOWNICZEK v. POLAND
(Application
no. 22339/08)
JUDGMENT
STRASBOURG
27 September 2011
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 Karbowniczek v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
George
Nicolaou,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 6 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22339/08) 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 Jarosław
Karbowniczek (“the applicant”), on 28 April 2008.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, a violation of Article 3 of the
Convention on account of ill-treatment by the police.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and lives in Wałbrzych.
A. The applicant’s
detention and criminal proceedings against him
- On
27 July 2005 the applicant was arrested by the police on suspicion
of having committed battery, uttered threats and intimidated a
witness.
- On
28 July 2005 the Wałbrzych District Court (Sąd Rejonowy)
decided to remand the applicant in custody. The court relied on a
reasonable suspicion that the applicant had committed the offences in
question and the high probability that a heavy sentence would be
imposed on him. The court further considered that there was a risk
that the applicant might interfere with the course of the proceedings
and bring pressure to bear on witnesses, particularly in the light of
the fact that he had previous convictions.
- On
27 October 2005 the applicant’s detention was extended. The
court relied on the grounds given previously. The applicant’s
appeal against this decision was dismissed on 3 November 2005.
- On
23 December 2005 the District Court further extended the pre-trial
detention in respect of the applicant and his two co-accused,
considering it necessary in order to ensure the proper course of
the proceedings. An appeal by the applicant was dismissed on 5
January 2006.
- On
9 March 2006 the applicant and the two co-accused were indicted
before the Wałbrzych District Court.
- On
21 March 19 June, 12 September and 7 December 2006 the trial court
further extended the applicant’s detention, finding that the
original grounds for it remained valid. The court also considered
that there was a risk that the accused would interfere with the
proper course of the proceedings.
- At
a hearing held on 2 March 2007 the Wałbrzych District Court
extended the applicant’s detention, reiterating the grounds
invoked previously.
- The
applicant appealed against this decision.
- On
21 March 2007 the Świdnica Regional Court (Sąd Okręgowy)
dismissed the appeal. The court noted that the applicant had already
“tried to influence the course of the proceedings”, had
tried to abscond while being transported to the court and that he had
already been convicted of offences similar to those with which he was
charged in the present set of proceedings. The court also considered
that the applicant might try to influence the testimony of his
sister, who was accused in the same proceedings but who was not
detained. The court concluded that detention on remand was the only
preventive measure capable of ensuring the proper course of the
proceedings.
- Subsequently,
on 30 May 2007, the applicant’s detention was extended on the
grounds given previously.
- Between
22 June 2006 and 3 July 2007 the applicant was serving a prison
sentence imposed on him in a different set of proceedings.
- On
3 July 2007 the Wałbrzych District Court convicted the applicant
and sentenced him to eight years’ imprisonment. Together with
two accomplices, the applicant was found guilty of, inter alia,
forgery, battery, robbery and uttering threats. However he was not
charged or convicted of membership of an organised criminal group.
- The
applicant lodged an appeal against the judgment.
- On
21 December 2007 the Świdnica Regional Court quashed the
first-instance judgment and remitted the case. On the same day the
court extended the applicant’s detention, finding that the
grounds previously given remained valid.
- On
25 June 2008 the applicant’s detention was further extended.
An appeal by the applicant against that decision was dismissed
on 10 July 2008.
- On
25 July 2008 the Wałbrzych District Court extended the
applicant’s pre-trial detention; however, the court decided
that the applicant could be released, under police supervision,
on bail in the amount of 10,000 Polish zlotys (PLN)
(approximately EUR 3,000 at that time). The court observed
that the majority of the witnesses had been heard, so the
risk that the applicant would try to bring pressure to bear on them
was no longer justified.
- The
applicant submitted that he had no means to pay the bail.
- On
14 August 2008 the applicant was released from detention although he
had failed to pay the full sum specified in the bail decision.
- On
18 October 2010 the Wałbrzych District Court convicted the
applicant and sentenced him to six years’ imprisonment.
- On
22 March 2011 the Świdnica Regional Court partly amended and
partly quashed the judgment and remitted the case. The applicant was
sentenced to seven years’ imprisonment.
- On
19 April 2011 the applicant’s legal-aid counsel refused to
lodge a cassation appeal against the judgment.
B. The events of 21 November 2006
as presented by the applicant
- On
21 November 2006 the applicant was transferred from the Detention
Centre to the Walbrzych District Court to attend a hearing. He was
escorted by police officers, who left the door of the police van open
thereby enabling him to escape. After several minutes he was stopped
and brutally beaten up by the police officers. The applicant was
brought back to the court building where he was handcuffed to a
radiator, stripped naked, and again hit, kicked, strangled and hit
with a gun by the police officers.
- The
applicant was then brought back to the courtroom, where he complained
to the presiding judge about what had happened to him. An ambulance
was called and the applicant was taken to a hospital where he was
examined by a doctor. A medical certificate (which is hardly legible)
issued by a doctor from the emergency room of the Wałbrzych
Hospital, confirm abrasions to the applicant’s head.
- Upon
his return to the court building the applicant was again beaten up by
police officers. Afterwards, he was transferred back to the Detention
Centre, where he requested an examination by a doctor.
The
following is an extract from a note in the “Health book
of a detainee” (Książka Zdrowia
Osadzonego”):
“21.11. 2006
[The applicant] submits that he was arrested by force by
police officers. On his body can be seen: skin abrasion on the left
side of his forehead measuring 5 cm by 3 cm, an abrasion on the
lower part of his chin 3 cm long, two scratches on the right shoulder
blade 10 cm long, a scratch on the right arm 6 cm long, an abrasion
on the left side of his chest 15 cm long, abrasions on the
knee, above the ankle, a blue mark under the right eye, a red mark on
the neck and right knee.”
- A
note in the book dated 22 November 2006 confirmed that a forensic
medical examination had been carried out confirming the injuries as
previously described.
C. The investigation concerning the applicant’s
alleged ill-treatment and facts as established by the domestic
authorities
- On
12 February 2007 the Wałbrzych District Prosecutor opened
an investigation into the applicant’s allegations.
- On
12 June 2007 an expert medical opinion was prepared.
- On
15 June 2007 the Wałbrzych District Prosecutor decided
to discontinue the investigation, finding that there was
insufficient evidence that an offence had been committed. In the
course of the investigation an expert was appointed. The testimony of
T.G., who had been transported with the applicant to the court and
was later present in the court building, was also heard. T.G.
testified that he could not see what happened when the applicant had
run out of the van, but he saw him later in the court, when waiting
for his hearing. T.G. testified that he heard the applicant screaming
in pain, as if he had been beaten.
The
prosecutor gave the following reasons for her decision:
“In the course of the investigation the following
course of events was established.
On 21 November 2006 [the police
officers P.G., D.P. and R.G.] escorted [the applicant] from the
Wałbrzych Police Station to the
Wałbrzych District Court...
Next to the building of the Wałbrzych District
Court [the applicant], having removed his hand from the handcuffs,
pushed open the van door and ran off in the direction of
[other] buildings. The action undertaken [by the police officers] led
to the arrest of the applicant, who took fright at a
warning shot fired by P.G. and lay down on the ground. He was
handcuffed and led to the van and brought to the detainees’
room of the Walbrzych District Court. P.G. and R.G. took part
in the pursuit of [the applicant]. [The third police
officer] stayed in the van to watch over the other detainee. For
their own safety, the police officers searched the applicant and
confiscated money and other small items from him. The applicant was
alone in the detainees’ room.
After having been searched, the applicant was
handcuffed. At that moment he started hitting his head against
the floor and walls and shouting that the police officers had beaten
him up and that it was their fault. Since P.G. had left for Wałbrzych
Police Station, in order to transmit the information about [the
applicant’s] attempt to flee, the remaining [police officers],
seeing [the applicant’s] behaviour, laid him on the floor and
held his hands and legs to prevent him from injuring himself further.
During that time the applicant tried to free himself, rubbed his head
against the floor and shouted at the police officers that he would
inform the prosecuting authorities of the fact that they had beaten
him up. He also threatened to kill them. After about 30 minutes an
ambulance came to give him something to calm him down, but the doctor
decided to take [the applicant] to the hospital.
[Three police officers] went with [the applicant] to the
hospital. In the hospital the applicant underwent the necessary
examinations; then, since he was allowed to participate in the
trial, the police officers took him to the Wałbrzych District
Court. The applicant was then transported to the prison because the
hearing had been adjourned.
The injuries sustained by [the applicant] on 21 November
2006 qualified as injuries that could happen in the
circumstances described by both the victim and the police
officers. However, the court expert established categorically that
they could not have happened as a consequence of repeated kicking or
beating with substantial force, as described by the victim.
On the basis of all the material collected in the case
it can be unambiguously established that there is not enough evidence
substantiating the allegations that the police officers
escorting [the applicant] on 21 November 2006 committed an offence.
It should be said that the possibility that the applicant was beaten
up by the police officers cannot be totally ruled out. However,
the evidence collected lends credence to the version of events given
by the police, which differs completely from the one given by [the
applicant] because there were no other witnesses to the event who
could confirm [the applicant’s] version, and it is
impossible to identify any such witnesses.
T.G., who was transported with the applicant, does not
have any information concerning the incident, as from the moment the
applicant escaped, he lost all contact with him.
As a side note it is to be pointed out that, judging
from life experience, it is rather unlikely that the police officers,
after having informed their superiors about the applicant’s
running off, beat him up and subsequently, having brought the
applicant from the hospital back to the court building and knowing
that D.G., their supervisor, was already present in the court
building, ill-treated the applicant yet again.
Since the version of the events given by the applicant
was not confirmed by the evidence collected, his statements
in this respect should be considered as untrue. It is therefore
justified to discontinue the proceedings under Article 17 § 1 of
the Code of Criminal Procedure on the grounds
that there is no evidence sufficiently justifying
the suspicion that an offence was committed.”
- The
applicant lodged an appeal against that decision.
- On
15 June 2007 the prosecutor requested an expert to enlarge on
[his] opinion by answering the question whether the injuries
described below could have occurred in the circumstances as described
by the police officers. The prosecutor stated as follows:
“On 12 June 2007 an expert opinion in forensic
medicine was prepared which established that some of the injuries
[sustained by the applicant], in particular an abrasion on the
forehead, a bruise on the mandible, bruises on the shoulder blade, on
the chest, and on the right thigh could be the result of hitting or
kicking with minor force. When preparing the opinion, the expert was
unaware of the testimonies given by the witnesses D.P. and R.G., the
police officers...”
- On
31 January 2008 the Wałbrzych District Court dismissed the
appeal. The court entirely agreed with the prosecutor’s
findings after having allowed the new evidence requested by the
applicant in his appeal, namely the testimony of K.K., a witness
who was present at the Wałbrzych District Court on 21 November
2006 and who allegedly saw the applicant being beaten by the police
officers, and the additional testimony of T.G., who was transported
with the applicant to a court hearing and was likewise present in the
court building at the time the applicant was ill-treated.
K.K.
submitted that he saw the applicant when he had been waiting for a
hearing in the holding room at the court building. The holding room
led to two cells. K.K. further submitted that there had been another
woman in the room, who had also been transported to the court
building for a hearing. According to K.K., the applicant had been
placed in one of the cells; the door to the cell was left open. He
could see the applicant, partly undressed (without a shirt and
trousers) and handcuffed to a radiator. He saw the police officers
entering the cell and insulting the applicant. He further submitted
that, when leaning out, he had seen one of the police officers
kicking the applicant. Subsequently, K.K. stated that he had seen
some two to four police officers kicking the applicant.
In
his additional testimony, T.G. submitted that at the court building,
through a peep-hole in the door of his cell, he could see the
applicant being pulled about by the police officers. He could not see
whether the applicant had been beaten, but he heard him calling out
in pain, which he associated with the applicant having been hit.
- The
court did not explain why K.K.’s testimony and the additional
testimony of T.G. had been disregarded. The court did not refer
either to the alleged stripping of the applicant. However, the court
mentioned that the evidence obtained by the prosecutor was sufficient
to establish the circumstances of the case. The court also took into
account the supplementary expert opinion and concluded:
“[From the supplementary expert opinion upholding
the conclusions of the original opinion, and after having examined
other evidence requested by the applicant] it is clear that
although the applicant sustained injuries, they do not indicate that
he was repeatedly hit and kicked, and could have occurred when the
applicant forcibly pushed the police van door open, fell, or lay down
after fleeing, or when he struggled with the police officers while in
a lying position and was held down by force; the abrasion on the
forehead could have happened when he was rubbing his head
against the ground, and [all these injuries] were slight and minor in
nature.
In the light of the above and after all possible
investigative actions have been carried out, it is impossible in the
circumstances to establish the existence of evidence to prove that
the offence was committed. Having analysed the material collected in
the case, the court agreed with the prosecutor’s findings in
full and decided as in the operative part.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Use of force by the police
- The
regulations on the permissible use of direct coercive measures by the
police are laid down in section 16 of the Police Act, which provides
that in situations in which a police order is not obeyed, such
measures can be resorted to only in so far as they correspond to the
requirements of the particular situation and in so far as they are
necessary to obtain compliance with that order.
- Article
5 § 1 of the Ordinance of 17 September 1990 on the use of
coercive measures by the police provides that direct physical force
can be used to overpower a person, to counter an attack and to ensure
compliance with an order. When such force is being used, it is
forbidden to strike the person against whom the action is being
carried out, except in self-defence or to counter an attack against
another person’s life, health or property.
B. As regards detention on remand
- The
relevant domestic law and practice concerning the imposition of
detention on remand (tymczasowe aresztowanie), the grounds for
its extension, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) are set out in the Court’s judgments in the
cases of Gołek v. Poland, no. 31330/02, §§
27-33, 25 April 2006 and Celejewski v. Poland, no.
17584/04, §§ 22-23, 4 August 2006.
- For
the latest amendments of the provisions concerning detention on
remand, see the Court’s judgment in the case of Kauczor v.
Poland, no. 45219/06, § 25-33, 3 February 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he had
been kicked and beaten up by police officers while being transported
to the Wałbrzych District Court to attend a hearing and,
afterwards, in the court building itself.
- 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
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Alleged ill-treatment by the police
(a) The applicant’s submissions
- The
applicant submitted in general terms that Article 3 had been violated
by the police officers who had treated him brutally on the day when
he was transported to attend the hearing in the District Court.
(b) The Government’s submissions
- The
Government submitted that it was undisputed that, on 21 November
2006, the applicant had attempted to escape from a police vehicle.
They considered that the use of force had been made necessary by the
applicant’s own conduct; the applicant must have been aware
that his attempt to escape would have led the police to react.
According to the Government, the injuries sustained by the applicant
might have occurred when the applicant forcibly opened the door of
the police van and when the applicant fell to the ground after one of
the police officers had fired a warning shot. They considered that
the measures undertaken by the police officers following the
applicant’s attempt to escape had been lawful, proportionate
and had not exceeded the minimum level of severity required to fall
within the ambit of Article 3 of the Convention.
- As
regards the course of events in the detainees’ room in the
building of the Wałbrzych District Court, the Government
submitted that the applicant’s injuries had been largely
self-inflicted. The applicant had behaved aggressively and the police
officers had had to react by using physical force to stop him from
hurting himself. The Government described as completely unreliable
the applicant’s submissions that he had been beaten up by the
police officers in the detainees’ room. According to the
Government, this was impossible especially since the police officers’
supervisor, D.G., had been present.
- The
Government produced a copy of the minutes of the hearing of 21
November 2006 from which it emerges that the applicant, having been
brought back from hospital to the court building, declared that he
felt well enough to participate in the hearing. However, the court
decided to adjourn the hearing “due to the applicant’s
emotional state”.
- Finally,
the Government submitted that the medical experts who had examined
the applicant’s injuries ruled out the possibility that the
injuries had been caused by kicking and beating.
- The
Government concluded that the facts of the case did not disclose a
violation of Article 3 of the Convention.
(c) The Court’s assessment
- The
Court reiterates that where an individual is taken into police
custody in good health and is found to be injured on release, it is
incumbent on the State to provide a plausible explanation of how
those injuries were caused, failing which a clear issue arises under
Article 3 of the Convention (see, among other authorities, Selmouni
v. France [GC], cited above, § 87). The same principle
applies to alleged ill-treatment resulting in injury which takes
place in the course of an applicant’s arrest (see Klaas v.
Germany, 22 September 1993, §§ 23-24,
Series A no. 269, and Rehbock v. Slovenia, no.
29462/95, §§ 68-78, ECHR 2000-XII).
- According
to the Court’s case-law, Article 3 does not prohibit the use of
force for the purposes of effecting an arrest. However, such force
may be used only if indispensable and must not be excessive (see,
among others, Rehbock, cited above; Altay v. Turkey,
no. 22279/93, § 54, 22 May 2001; and Ivan Vasilev v.
Bulgaria, no. 48130/99, § 63, 12 April 2007). In
respect of a person deprived of his liberty, recourse to physical
force which has not been made strictly necessary by his own conduct
diminishes human dignity and is in principle an infringement of the
right set forth in Article 3 (see Ribitsch v. Austria, 4
December 1995, § 38, Series A no. 336).
- The
Court further recalls that Article 3 of the Convention prohibits, in
absolute terms, torture and inhuman or degrading treatment. However,
ill treatment must attain a minimum level of severity if it is
to fall within the scope of Article 3. The assessment of this minimum
is relative: it depends on all the circumstances of the case, such as
the duration of the ill treatment, its physical and mental
effects and, in some cases, the sex, age and state of health of the
victim. Treatment has been held by the Court to be “inhuman”
because, inter alia, it was premeditated, was applied for
hours at a stretch and caused either actual bodily injury or intense
physical and mental suffering, and to be “degrading”
because it was such as to arouse in its victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them. In
order for a punishment or treatment associated with it to be
“inhuman” or “degrading”, the suffering or
humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a legitimate form
of given treatment or punishment. The question whether the purpose of
the treatment was to humiliate or debase the victim is a further
factor to be taken into account, but the absence of any such purpose
cannot conclusively rule out a finding of a violation of Article 3
(see Labita v. Italy [GC], no. 26772/95, 6.4.2000, §§
119-120, ECHR 2000-IV). Allegations of ill-treatment must be
supported by appropriate evidence. To assess this evidence, the Court
adopts the standard of proof “beyond reasonable doubt”
but adds that such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (loc. cit., § 121).
- The
Court observes that the parties have not disputed that, on
21 November 2006, the applicant absconded from the police van
while being transported to the Wałbrzych District Court. Two of
the three police officers who escorted the applicant started chasing
him. One of them fired a warning shot in the air and the applicant
fell to the ground. He was then apprehended by the police officers
and handcuffed. The applicant submitted that he had been beaten up
and kicked by the police officers immediately afterwards. The
Government submitted in turn that the applicant had been transferred
to the detainees’ room of the Wałbrzych District Court.
The parties likewise disagree as regards the course of events in the
detention room. The applicant submitted that he had again been beaten
up and kicked. According to the Government, the applicant had behaved
aggressively and tried to injure himself and the intervention of the
police officers had been indispensable. The Government’s
version was confirmed by the domestic authorities in their
investigation and by the subsequent judicial proceedings.
- While
the Court is not bound by the findings of the domestic authorities as
to facts alleged to be in breach of the Convention, on the basis of
the parties’ observations and the material in its possession,
it finds it impossible to establish whether any ill-treatment
occurred in the street immediately after the applicant’s
apprehension and, subsequently, in the court building.
- The
Court observes that the applicant was apprehended in the course of an
operation giving rise to unexpected developments to which the police
were called upon to react. The Court considers that the applicant’s
apprehension must have resulted in the applicant having sustained
some minor injuries. The Court further considers that the applicant
must have been aware that the police would chase him and try to
apprehend him and that physical force might have to be used against
him if he resisted arrest.
- The
Court notes in addition that the applicant’s injuries were not
very serious. It further observes that although the first expert’s
report suggested that they could not have been caused by repeated
kicking and beating with substantial force the second report stated
that they could have resulted from kicking and beating with minor
force (see paragraphs 33 and 35 above). Furthermore, the applicant’s
wounds were dressed in the hospital and he was transported back to
the court. As reported by the prosecutor in her decision of 15 June
2007 (see paragraph 33 above) and confirmed in the minutes of the
hearing of 21 November 2006 (see paragraph 48 above) after the events
on that day the applicant was able to participate in the hearing,
which was adjourned because the court considered that the applicant
should not be heard in a state of emotional distress.
- Taking
into consideration the findings made in the course of the domestic
proceedings, the Court for its part finds it impossible to establish
on the basis of the evidence before it whether or not the applicant’s
injuries were caused as alleged. However, it would observe at
the same time that the difficulty in determining whether there was a
plausible explanation for the applicant’s injuries or
whether there was any substance to his allegations of
ill-treatment must be assessed against the background of the adequacy
of the investigation carried out in respect of the applicant’s
allegations (see Veznedaroğlu v. Turkey, no. 32357/96,
§ 31, 11 April 2000). The Court will now examine
this matter further.
2. Adequacy of the investigation
(a) The applicant’s submissions
- The
applicant did not refer to this matter.
(b) The Government’s submissions
- The
Government contended that the investigation and judicial proceedings
in the present case had complied with Article 3 requirements. They
argued that the proceedings had been prompt and thorough. There was
no other evidence that the prosecuting authorities should have taken
into account in order to establish the facts of the alleged
ill-treatment. The circumstances of the case had been examined by the
Wałbrzych District Prosecutor and, subsequently, in the course
of independent judicial proceedings conducted by the Wałbrzych
District Court. All the relevant witnesses had been heard and a
forensic report and a supplementary report had been commissioned.
(c) The Court’s assessment
- The
Court reiterates that where an individual makes a credible assertion
that he has suffered treatment infringing Article 3 at the hands of
the police or other agents of the State, that provision, read in
conjunction with the State’s general duty under Article 1 of
the Convention to “secure to everyone within [its] jurisdiction
the rights and freedoms defined in ... [the] Convention”,
requires by implication that there should be an effective official
investigation. This investigation should be capable of leading to the
identification and punishment of those responsible (see, among other
authorities, Labita v. Italy, cited above, § 131).
The investigation into arguable allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill-founded conclusions to close their investigation or as the basis
of their decisions (see Assenov and Others, cited above, § 103
et seq).
- In
the Labita case cited above, the Court found a violation of
Article 3 on the ground that the authorities had not
investigated the alleged numerous acts of violence, humiliation, and
other forms of torture inflicted on an applicant. It must be noted
however that in that case the Court’s conclusion was reached on
account of the manifest inactivity of the authorities regarding the
investigation of that applicant’s complaints (loc. cit.,
§§ 117-136).
- In
the present case, a number of persons were questioned, including
T.G., who, on 21 November 2006, was transported together with the
applicant to the Wałbrzych District Court and was present in the
court building at the time the applicant was allegedly beaten-up, the
police officers involved and D.G. - the police officers’
supervisor, who was likewise present in the court building at the
time of the alleged ill-treatment. Furthermore, expert opinions as
well as a supplementary expert opinion were produced in the context
of the investigation into the applicant’s allegations of
ill-treatment on 21 November 2006 (see paragraph 35 above).
Also, at the request of the applicant submitted in his appeal against
the decision of 15 June 2008, K.K., a witness who allegedly saw the
applicant being ill-treated in the court building, was heard. It was
apparent thought that this evidence did not reveal any new relevant
circumstances, because the District Court considered on the basis of
the investigation carried out by the prosecutor, that the facts and
circumstances of the case had been properly established and examined
(see paragraph 37 above).
- The
prosecution decided not to charge the policemen and to discontinue
the investigation because of the lack of unequivocal evidence of the
officers’ guilt. It is true that the investigation of the
district prosecutor did not exceed a reasonable time: it was
completed on 15 June 2007 - i.e. some seven months after the impugned
events and four months after the opening of the criminal proceedings
(see paragraphs 34-37 above; see also, by contrast, the
above-mentioned Labita case, loc. cit., § 133
where only photographs of the alleged perpetrators had been taken
during a period of fourteen months). The Court is not, however,
persuaded that this investigation was sufficiently thorough and
effective to meet the requirements of Article 3.
- The
Court finds it particularly unsatisfactory that the domestic court
failed to give reasons as to why it had not found the testimonies
given by K.K. and T.G. to be credible. Furthermore, it failed to
explain convincingly the reasons for accepting the version of the
events submitted by the police officers involved. In particular, the
Court does not find convincing the argument that the police officers
would not have beaten the applicant up in the court building, knowing
that their superiors had been informed about the applicant’s
escape and that their supervisor D. G. - was present in the
building. The prosecution authorities and the court embraced 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. In that respect the Court
would underline the importance of critical assessment of police
officers’ testimonies (see Dzwonkowski v. Poland,
no. 46702/99, § 65, 12 April 2007).
-
The Court further notes that in the light of the expert opinions, in
particular according to the first expert opinion, the injuries
sustained by the applicant qualified as injuries that could have
occurred in the circumstances described by both the victim
and the police officers. The court expert had categorically
ruled out any possibility that the injuries happened as a consequence
of repeated kicking or beating with substantial force – that is
in the manner the applicant had alleged to have been ill-treated by
the police officers. However, the authorities did not to give any
plausible explanation as to how the applicant could have sustained
his injuries in the circumstances described by him, if they were not
caused by some form of ill-treatment by the authorities.
- The
Court also notes that according to K.K., another woman, a potential
witness, was present in the court building at the time of the alleged
ill treatment of the applicant. It appears that no effort was
ever made to confirm K.K.’s submission, or to identify the
woman.
- Regard
being had to the above findings, the Court concludes that there has
been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF
THE CONVENTION
- The
applicant complained that the length of his pre-trial detention had
been excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Period to be taken into consideration
- The
applicant’s detention started on 27 July 2005, when he was
arrested on suspicion of having committed battery, uttered threats
and intimidated a witness. Between 22 June 2006 and 3 July 2007 the
applicant was serving a prison sentence imposed on him in another set
of proceedings (see paragraph 16 above). Subsequently, on 3 July 2007
the Wałbrzych District Court convicted the applicant and
sentenced him to eight years’ imprisonment. On 21 December 2007
the Świdnica Regional Court quashed the first-instance judgment
and remitted the case. Thus, between 22 June 2006 and 21
December 2007 the applicant was “convicted by a competent
court” within the meaning of Article 5 § 1 (a) of the
Convention. The applicant was released from detention on 14 August
2008.
- The
term between 22 June 2006 and 21 December 2007, being covered by
Article 5 § 1 (a), must therefore be subtracted from the period
of the applicant’s detention pending trial for the purposes of
Article 5 § 3.
- Accordingly,
the period to be taken into consideration amounts to one year,
six months and nineteen days.
B. The parties’ submissions
1. The applicant
- The applicant submitted that the
length of his detention had clearly been unreasonable and that it
could not be justified on the grounds relied on by the authorities.
2. The Government
- The Government submitted that
the length of the applicant’s detention had been justified
throughout its entire period. They relied on the gravity of the
charges against the applicant, on the fact that the applicant already
had a criminal record and on the risk that he might abscond.
C. The Court’s assessment
- The
Court observes that the general principles regarding the right “to
trial within a reasonable time or to release pending trial”, as
guaranteed by Article 5 § 3 of the Convention, were have been
stated in a number of its previous judgements (see, among many other
authorities, Kudła v. Poland [GC], no. 30210/96,
§ 110 et seq, ECHR 2000 XI).
- In
their decisions regarding the applicant’s detention, the
authorities, in addition to the reasonable suspicion against the
applicant, relied principally on four grounds, namely (1) the serious
nature of the offences with which he had been charged, (2) the
severity of the penalty to which he was liable; (3) the need to
secure the proper conduct of the proceedings; (4) the risk that
the applicant, having previous convictions, might tamper with the
evidence and the risk that he might abscond.
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant his
detention.
- Furthermore,
according to the authorities, the serious nature of the offences in
question and the likelihood of a severe sentence being imposed on the
applicant created a presumption that the applicant would obstruct the
proceedings. However, the Court would reiterate that, while the
severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or re-offending, the gravity of
the charges cannot by itself justify long periods of detention on
remand (see Michta v. Poland, no. 13425/02, §§
49, 4 May 2006).
- The
Court would reiterate that, with the passage of time, those grounds
became less and less relevant. The Court must then establish whether
the other ground adduced by the courts – namely, the risk of
the applicant’s going into hiding – was “relevant”
and “sufficient” (see, Kudła cited
above, § 111).
In
this connection the Court notes that on 21 November 2006 the
applicant made an attempt to abscond while being transported to the
court hearing. The Court considers that, from that date on, this
fact, taken together with the other grounds for the applicant’s
detention relied on by the domestic authorities, especially the risk
of tampering with evidence resulting from the applicant’s
previous criminal convictions, constituted grounds for a reasonable
fear that the applicant might try to abscond again.
- The
Court also notes that, on 25 July 2008, the domestic court, having
examined the reasons for the applicant’s continued detention,
found some of them no longer valid and considered that the applicant
could be released on bail (see paragraph 21 above). The
applicant was released three weeks later although he had not paid the
amount ordered by the court by way of bail.
- The foregoing considerations are sufficient for the
Court to conclude that the grounds given for the applicant’s
pre-trial detention were “relevant” and “sufficient”
to justify holding him in custody for the entire relevant period.
- The
Court has considered whether the authorities, when examining the
case, showed the diligence required in cases in which the accused is
detained. It is to be noted that the applicant was indicted on 9
March 2006 which is some seven months after his arrest. The
first-instance judgment was given on 3 July 2007− that is
sixteen months after the indictment. The appellate proceedings lasted
about five months (see paragraph 19 above). The Court notes that the
proceedings involved three co-accused and a number of witnesses had
to be heard. It should not be overlooked that, while an accused
person in detention is entitled to have his case given priority and
conducted with particular expedition, this must not stand in the way
of the efforts of the judges to clarify fully the facts in issue, to
provide both the defence and the prosecution with all necessary
facilities for putting forward their evidence and stating their case
and to give judgment only after careful reflection on whether the
offences were in fact committed and on the sentence to be imposed.
- The
Court concludes that the Polish authorities showed the diligence
required in cases concerning a detained person.
- It
follows that this part of the application must be rejected as being
manifestly ill-founded in accordance with Article 35 §§ 3
and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 § 1 of a violation
of his right to have his case heard within a reasonable time and
under Article 6 § 2 of a breach of the principle of presumption
of innocence. Lastly, the applicant invoked Article 13 of the
Convention, maintaining that his right to an effective remedy had
been violated.
- As
regards the complaints concerning the excessive length of the
criminal proceedings the Court notes that, by virtue of section 5 of
the Law of 17 June 2004 on complaints about a breach of the
right to a trial within a reasonable time (Ustawa o skardze na
naruszenie prawa strony do rozpoznania sprawy w postępowaniu
sądowym bez nieuzasadnionej zwłoki), it is open to
persons such as the applicant in the present case to lodge a
complaint about the unreasonable length of the proceedings with the
relevant domestic court. The applicant failed to make use of that
domestic remedy.
- Accordingly, this complaint must be rejected under
Article 35 §§ 1 and 4 of the Convention
for non-exhaustion of domestic remedies.
- The Court has examined the
remaining complaints. However, having regard to all the material in
its possession, it finds that the applicant has failed to
substantiate them. It follows that this part of the application must
be rejected as being manifestly ill-founded in accordance with
Article 35 §§ 3 and 4 of the Convention.
IV. 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 10,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government considered this sum unreasonable.
- The
Court considers that the applicant has suffered non-pecuniary damage
which is not sufficiently compensated by the finding of a violation
of the Convention. Considering the circumstances of the case and
making its assessment on an equitable basis, the Court awards the
applicant EUR 5,000 under this head.
B. Costs and expenses
- The
applicant did not specify his claim for 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 complaint concerning Article 3
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds unanimously
(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, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into the 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 27 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
