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FOURTH
SECTION
CASE OF PIENIAK v. POLAND
(Application
no. 19616/04)
JUDGMENT
STRASBOURG
24 February 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Pieniak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 3 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19616/04) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Jerzy Pieniak (“the
applicant”), on 3 October 2003.
- The
applicant, who had been granted legal aid, was represented by Ms M.
Wentlandt-Walkiewicz, a lawyer practising in Łodź. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry
for Foreign Affairs.
- The
applicant alleged, in particular, that he had been ill-treated by the
police during his arrest and that no adequate and effective
investigation into his allegations had been carried out by the
authorities.
- On
11 January 2007 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Sieradz.
A. The alleged ill-treatment of the applicant
- On
18 September 2001 the applicant was arrested on charges of rape. He
was transported to the Łuków Police Station and detained
for 48 hours. His detention was subsequently prolonged for a further
24 hours. Upon his arrival the applicant was examined by a doctor,
Z.M., who found only slight superficial scratches, at least some of
which could have been caused by a struggle with another
person. In addition, these scratches must have occurred several hours
earlier.
- According
to the applicant the police officers abused him verbally when
interrogating him and punched him in the stomach, chest, shoulders,
face and arms. The Government did not respond to these allegations.
- On
19 September 2001 the applicant was brought to the prosecutor's
office by two policemen, M.M and T.K. He was then questioned by the
prosecutor. According to the applicant, he reported the alleged
ill-treatment. The Government submitted that during the interview the
prosecutor and the applicant were alone in the room. There was no
note of the applicant's complaint in the minutes of the
interrogation.
- On
the evening of the same day the applicant felt weak and complained of
stomach pain. At the applicant's request, the police officer on duty
called an ambulance. On arrival, the doctor, M.A., administered
a painkiller to the applicant. She noted that the applicant had
a small (2 3 cm) bruise on his chest. He also complained
about pain in his chest, ribs and stomach.
- On
21 September 2001 the applicant was brought before the Łuków
District Court. The court ordered that the applicant be remanded in
custody. According to the applicant, he again complained about the
alleged ill treatment. However, there is no note of the
complaint in the minutes of the hearing.
- On
the same date M.M., a police officer from the Łuków
Police Station, drew up an official report. The report reads as
follows:
“On 18 September 2001 J.P. [the applicant] was
arrested in Celiny Szlacheckie, Stanin commune, on charges of raping
E.C. On his arrest he was examined by a surgeon, Z.M., who did
not observe any marks on his body apart from scratches on his neck
and the upper part of his chest.
On 19 September 2001 J.P was interrogated by the Łuków
District Prosecutor. On the evening of that day he informed the
police officer on duty in the Łuków Police Station, that
he had been beaten by police officers. At his request the officer on
duty called an ambulance and [he] was examined by a doctor.
Today, during the Łuków District Court's
hearing regarding his detention, J.P. complained that he had been
beaten by police officers while being questioned”.
- Later
that day the applicant was admitted to the Siedlce Detention Centre.
On arrival the applicant had visible injuries, and was asked
to explain their origin. He made a written note and stated that
he had been subjected to ill treatment at the police station. He
noted that the police officers had ordered him to keep his arms above
his head and when his arms began to shake they had hit him and told
him that they “would treat his neurosis”. Lastly, he
stressed that he would be able to recognise the officers in question.
- On
24 September 2001 he was examined by a doctor, P.S. In so far as
relevant, the doctor's report read:
“Haematomas and bruises on both arms. Movement
preserved. Haematomas and bruises on the left ribs. Bruises without
oedema on the right eyelid. No changes to the eyeball.”
B. The investigation into the applicant's allegations
- On
4 October 2001, as a result of the applicant's complaint in the
Sieldce Detention Centre, the Police commandant of the Łuków
District initiated an internal investigation.
- On
19 October 2001 T.Z., head of the criminal section of the Łuków
police, was heard. He confirmed that he had been informed of the
applicant's allegations and had seen the applicant's bruises.
- On
30 October 2001 the prosecutor maintained that he had not seen any
visible injuries on the applicant and the applicant had not
complained about ill-treatment during the interview on 19 September
2001.
- The
internal investigation was discontinued on 5 November 2001 on the
ground that the applicant was unable to identify the perpetrators.
- On
8 October 2002, during the hearing held in the course of the criminal
proceedings against the applicant, he testified that he had been
beaten by police officers on 19 September 2001 following the
interrogation at the prosecutor's office.
- On
12 November 2002 the Łuków District Court convicted the
applicant of rape. The judgment was upheld on appeal on a later
unknown date.
- On
16 December 2002 the applicant filed a complaint with the Łuków
District Prosecutor about the actions taken by the police.
- On
17 February 2003 the prosecutor instituted an investigation into the
applicant's allegations.
- On
12 March 2003 the prosecutor discontinued the criminal proceedings
into the applicant's allegations. The prosecutor held that, according
to the information in the case file, the applicant had not been
interrogated by police officers. In addition, the applicant himself
agreed that the scratch marks on his arms, neck and chest had
occurred when he had cut down bushes on his land. Furthermore, it did
not appear from the doctors' reports (including the report drawn up
by the doctor in the Siedlce detention centre) that the applicant had
been beaten. The prosecutor heard evidence from four police officers.
They testified that they had not noticed whether the applicant had
any abrasions. They also could not have ill treated the
applicant because they had never interrogated him. The prosecutor
heard evidence from M.A – the doctor who had examined the
applicant on 19 September 2001. She testified that she did not
remember whether the applicant had any abrasions or injuries. She had
only prescribed tranquillizers, as the applicant was suffering from
neuralgia. The prosecutor stressed that there was insufficient
evidence to conclude that the applicant had been beaten up by the
police.
- The
applicant appealed against this decision. On an unknown date the
Regional Prosecutor upheld the first instance decision. The
applicant filed an appeal with the Łuków District Court.
- On
13 May 2003 the court refused to institute criminal proceedings
against the police officers allegedly involved in the incident. The
court held that there was no evidence that the applicant had been
beaten by the police. In addition, the applicant had reported the
alleged ill treatment for the first time only on 8 October 2002,
when he testified before the Łuków District Court. Until
that date he had never raised this issue, nor had he complained to
the prosecution authorities. He had further filed an official
notification of the commission of a crime on 16 December 2002.
- On
21 August 2006 the applicant lodged a motion for the reopening of the
proceedings concerning ill-treatment. He argued that additional
documents should be considered in the proceedings, namely M.M.'s
report of 21 September 2001 and his medical files from the
Siedlce detention centre.
- On
6 December 2006 the prosecutor reopened the proceedings.
- On
7 March 2007 the prosecutor heard evidence from the doctor P.S., who
had examined the applicant in the detention centre. The doctor
considered that the applicant's bruises had been unexceptional and
could have occurred 3 to 5 days before the examination. In addition
they could have been caused by squeezing or pushing away. The doctor
stressed that had the applicant complained of ill-treatment he would
have noted it in his medical records.
- On
23 March 2007 the prosecutor discontinued the proceedings.
He considered that the applicant had constantly changed his
version of facts and that there had been no witnesses who could have
described the situation. In addition, there was no medical evidence
that the applicant had been subjected to ill-treatment and, lastly,
there was a high probability that the injuries had occurred in the
course of the [rape] victim's self-defence. The prosecutor concluded
that it was not possible to establish beyond doubt the factual
circumstances in which the injuries had occurred.
- It
would appear that the applicant failed to appeal against this
decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- In so far as relevant, Article 16 of the Police Act of
6 April 1990, as applicable at the material time, provides:
“1. If a lawful order given by a police
authority or police officer has not been complied with, a police
officer may apply the following coercive measures:
(1) physical, technical and chemical means of
restraining or escorting persons or of stopping vehicles;
(2) truncheons;
(3) water cannons;
(4) police dogs;
(5) rubber bullets fired from fire-arms.
2. Police officers may apply only such
coercive measures as correspond to the exigencies of a given
situation and are necessary to ensure that their orders are obeyed.”
- Paragraph
5 of the Ordinance of the Council of Ministers of 17 September
1990 on the Use of Coercive Measures by the Police provides:
“1. Physical force shall be used in
order to restrain a person, to counter an attack or to make [a
person] obey an order.
2. When using physical force, no one shall
hit a person, unless he has to do so in self-defence or in order
to counter an unlawful attack against the life, health or property
of others.”
In so
far as relevant, paragraph 6 of the Ordinance provides:
“Handcuffs
may be used ... in order to prevent an escape or to prevent an active
assault or active resistance. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been ill-treated by the police
following his arrest and that no adequate and effective investigation
into his allegations had been carried out by the authorities. He
relied on Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. Admissibility
- The
Government raised a preliminary objection that the applicant had not
exhausted all available domestic remedies in respect of his
allegations of ill-treatment. They argued that after the
investigation had been discontinued for the second time the applicant
should have lodged a complaint against the prosecutor's decision
of 23 March 2007.
- Secondly,
they alleged that the applicant could have lodged a claim with a
civil court for compensation under Article 417 of the Civil Code.
- The
applicant replied that he had exhausted all available domestic
remedies. He had complained about the decision to discontinue the
investigation of 13 March 2003. He had further filed a motion for the
reopening of the proceedings after they had been discontinued.
- The
Court reiterates that the aim of the rule of exhaustion of domestic
remedies referred to in Article 35 § 1 of the
Convention is to afford Contracting States an opportunity to put
matters right through their own legal system before having to answer
to an international body for their acts. However, although Article 35
§ 1 requires that the complaints intended to be brought
subsequently before the Court should have been made to the
appropriate domestic body, it does not require that in cases where
the national law provides for several parallel remedies in the sphere
of both civil and criminal law, the person concerned, after a
sustained but eventually unsuccessful attempt to obtain redress
through one such remedy, must necessarily try all other means (see
H.D. v. Poland, no. 33310/96, 7 June 2001, and
Olszewski v. Poland (dec.), no. 55264/00,
13 November 2003).
- The
Court notes that the applicant appealed the decision to discontinue
the investigation of 12 March 2003. In addition he filed a motion
for reopening of the proceedings (see paragraphs 23 and 25 above).
The Court does not therefore consider that, after the prosecuting
authorities had discontinued, for the second time, the investigation
instituted at the applicant's request, he was still required to use
further remedies in order to fulfil his obligation under
Article 35 § 1 (see, mutatis mutandis, the
decision in the H.D. case, cited above).
- 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 parties' submissions
- The
applicant submitted that during the police interrogation on 18 and
19 September 2001 police officers had beaten him in order to obtain
a confession. They had punched him in the stomach and also slapped
his face. As a result he had suffered a swollen and bruised eye, his
nasal septum was broken and he had injuries to the chest and stomach.
He submitted that there had been a violation of Article 3.
- The
Government maintained that the applicant had not been subjected to
treatment contrary to Article 3 of the Convention. They
submitted that there was no evidence that the applicant's injuries
were caused by misconduct on the part of the police officers. In
addition, the evidence had led to the conclusion that the applicant's
injuries had been inflicted by the rape victim, who had tried to
defend herself during the assault.
- In
any event, the Government submitted that the injuries suffered by the
applicant did not fall within the scope of Article 3. In their
opinion the scratches and bruises complained of by the applicant
could not be considered sufficiently serious to have amounted to
ill-treatment contrary to Article 3.
- In
conclusion, the Government submitted that no substantive violation of
Article 3 had occurred in the present case.
(b) The Court's assessment
- The
Court reiterates that where a person is injured while in detention or
otherwise under the control of the police, any such injury will give
rise to a strong presumption that the person was subjected to
ill-treatment (see Bursuc v. Romania, no. 42066/98,
§ 80, 12 October 2004). Where an individual, when taken
into police custody, is in good health, but is found to be
injured at the time of release, it is incumbent on the State to
provide a plausible explanation of how those injuries were
caused, failing which a clear issue arises under Article 3 of
the Convention (see Tomasi v. France, 27 August 1992,
§§ 108-11, Series A no. 241-A, and Selmouni
v. France [GC], no. 25803/94, § 87, ECHR 1999-V).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no.
25). However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie
wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. Indeed, the burden of proof
may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Ribitsch v.
Austria, 4 December 1995, Series A no. 336, § 34,
and Salman v. Turkey [GC], no. 21986/93, § 100,
ECHR 2000-VII).
- The
Court further reiterates that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this minimum is relative: it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and/or mental effects and, in some cases, the sex, age and
state of health of the victim (see Ireland v. the United
Kingdom, cited above, p. 65, § 162).
- 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, cited
above, § 38). Thus, the burden rests on the Government to
demonstrate with convincing arguments that the use of force which
resulted in the applicant's serious and numerous injuries was not
excessive (see, mutatis mutandis, Rehbock v. Slovenia,
no. 29462/95, § 72, ECHR 2000-XII, and Matko
v. Slovenia, no. 43393/98, § 104, 2 November
2006
- Turning to the circumstances of the present case, the
Court observes that the applicant sustained visible injuries such as
haematomas and bruises, established by a medical examination (see
paragraph 13 above). The degree of bodily harm indicates that the
applicant's injuries were sufficiently serious to amount to inhuman
and degrading treatment within the scope of Article 3 (see,
for example, Afanasyev v. Ukraine, no. 38722/02, § 61,
5 April 2005). It remains to be considered whether the State
should be held responsible under Article 3 for these injuries.
- The
Government submitted that the applicant's injuries could have been
caused by the struggle with the victim and that the medical experts
could not categorically establish the origin of the applicant's
injuries. In contrast, the applicant claimed that he had been
beaten by police officers in order to obtain a confession.
- The
Court notes that in the proceedings instituted following the
applicant's allegations of ill-treatment, the public prosecutors
maintained that there had been insufficient evidence to conclude that
the applicant had been beaten up by the police. Furthermore, there
was a probability that the injuries had occurred in the course of the
rape victim's self-defence.
- The
Court notes that, although the medical reports established
conclusively the presence of injuries on the applicant's body, they
did not determine the exact time that they were sustained (see
paragraphs 9 and 13 above).
- In
the instant case, it does not appear from the documents contained in
the case file that the injuries found on the applicant's body had
been sustained prior to his detention in police custody. In this
connection, the Court observes that the applicant was examined on his
arrest by a doctor, who observed only superficial scratches on the
applicant's body (see paragraph 6 above). When he was admitted
to the detention centre three days later, his injuries were so
visible that he was asked to explain their origin (see paragraph 12
above).
- In the light of the foregoing, the Court reiterates
that a State is responsible for the welfare of all persons held
in detention. Such persons are in a vulnerable situation and the
authorities have a duty to protect them. Bearing in mind the
authorities' obligation to account for injuries caused to persons
within their control, the Court considers that the Government have
failed to provide a plausible
explanation of how the
applicant's injuries were sustained. It therefore concludes that the
injuries in question were the result of treatment for which the
Government bore responsibility.
- There
has accordingly been a substantive violation of Article 3 of the
Convention.
2. Adequacy of the investigation
(a) The parties' submissions
- The
applicant maintained that the investigation into his allegations had
not been effective and thorough. He stressed that although he
reported the incident for the first time in September 2001, an
investigation had only been instituted when he filed an official
complaint on 30 December 2002.
- The
Government did not agree. They considered that the investigation into
the applicant's allegations had been thorough, effective and capable
of leading to the identification and punishment of those responsible.
The fact that the investigation had eventually been discontinued was
not tantamount to a violation of the Convention. They stressed that
the applicant's allegations had been investigated in three separate
sets of proceedings. An internal police investigation had been
conducted in October 2001. Subsequently, the prosecution
authorities had examined the allegations on two occasions. One of
these decisions had been reviewed by the Łuków District
Court on 15 May 2003.
(b) The Court's assessment
- The Court reiterates that where an individual raises
an arguable claim that he has been seriously ill-treated by the
police in breach of Article 3, that provision, read in
conjunction with the State's general duty under Article 1 of the
Convention to “secure to everyone within their jurisdiction the
rights and freedoms defined in ... [the] Convention”, requires
by implication that there should be an effective official
investigation. This investigation should be capable of leading to the
identification and punishment of those responsible (see Assenov
and Others v. Bulgaria, 28 October 1998, § 102,
Reports of Judgments and Decisions 1998-VIII, and Labita
v. Italy [GC], no. 26772/95, § 131,
ECHR 2000-IV).
- The
investigation into serious allegations of ill-treatment must
be thorough. That means that the authorities must always make a
serious attempt to find out what happened and should not rely on
hasty or ill founded conclusions to close their
investigation or as the basis of their decisions (see Assenov and
Others, cited above, § 103 et seq.). They must take all
reasonable steps available to them to secure the evidence concerning
the incident, including, inter alia, eyewitness testimony and
forensic evidence (see, Tanrıkulu v. Turkey [GC],
no. 23763/94, § 104 et seq., ECHR 1999-IV, and
Gül v. Turkey, no. 22676/93, § 89,
14 December 2000). Any deficiency in the investigation which
undermines its ability to establish the cause of injuries or the
identity of the persons responsible will risk falling foul of this
standard.
- Turning
to the circumstances of the instant case, the Court notes that
following the applicant's complaint the public prosecutor carried out
an investigation. It is not, however, persuaded that this
investigation was sufficiently thorough and effective to meet the
above requirements of Article 3.
- The
Court observes that the applicant informed the authorities of the
alleged ill-treatment for the first time on 21 September 2001.
However, the investigation was instituted only in February 2003 (see
paragraph 21 above). In addition, during the first stage the
prosecution authorities did not consider all available evidence and,
on the applicant's motion, the investigation was reopened (see
paragraph 26 above). In this respect the Court notes that doctor
P.S., who examined the applicant on his admission to the detention
centre, had been heard only in March 2007, that is, five and a half
years after the examination.
- The
Court further observes that there was a series of delays in the
investigation, the total duration of which cannot be reasonably
justified. These delays in the investigation significantly diminished
the prospect of its success and completion.
- Having
regard to these numerous flaws and omissions, the Court finds that no
effective investigation was carried out into the applicant's
allegations of ill-treatment. Accordingly, there has been a
violation of Article 3 of the Convention on that account.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim.
- The
Court awards the applicant EUR 10,000 in respect of non pecuniary
damage.
B. Costs and expenses
- The applicant, who
received
legal aid
from the Council of Europe in connection with the presentation
of his case, did not claim any sum 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 application admissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the ill-treatment of the
applicant;
- Holds that there has been a violation of Article
3 of the Convention as regards the absence of an effective
investigation into the applicant's allegations of ill-treatment;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10,000 (ten
thousand euros) plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Polish zlotys 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 24 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
