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FOURTH
SECTION
CASE OF
SAMBOR v. POLAND
(Application
no. 15579/05)
JUDGMENT
STRASBOURG
1 February
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 Sambor v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Ján
Šikuta,
Mihai
Poalelungi,
Nebojša
Vučinić,
Vincent
A. de Gaetano,
judges,
and
Fatoş Aracı, Deputy Section Registrar,
Having
deliberated in private on 11 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15579/05) 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
Dominik Sambor (“the applicant”), on 19 April 2005.
- The
applicant was represented by Mr P. Pelczarski, a lawyer practising in
Wrocław. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that during the incident on
15 August 2003 he had been ill-treated by the police and
that the investigation in his case had not been “thorough”
and “effective”.
- On
17 November 2008 the President of the Fourth Section decided to
communicate the application under Article 3 of the Convention.
An additional question concerning the alleged violation of Article 2
of the Convention was asked to the parties. However, the Court
considers that the application falls to be examined under Article 3.
- Under
Article 29 § 3 of the Convention it was decided to examine the
merits of the application at the same time as its admissibility.
- The
applicant and the Government each submitted written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1974 and lives with
his father and grandmother in a semi-detached house in
Wrocław. He suffers from paranoid
schizophrenia.
A. The police intervention
- On 16 August 2003, after an
argument with his father, the applicant barricaded himself in his
room and threatened his father with a knife and an axe. At about 8
p.m. the father called the police. He informed the police that his
son had thrown him out of the house and had locked himself inside
with a number of different sorts of weapons including an air rifle,
axe and knives. When the police arrived the applicant had an axe in
his hand. He told the police officers to leave the property while
threatening them with an air rifle. The police officers decided not
to continue the intervention. When the applicant's father informed
them that the applicant was under psychiatric care and recently
refused to take the prescribed medications, they called a
psychologist, negotiators and a doctor. Following two-hour
negotiations, which failed – the applicant fired several shots
at the negotiators who were approaching the house with shields - the
police called the anti terrorist brigade. Considering that the
situation posed a threat to the applicant's family members and those
who arrived on the spot, at about midnight a brigade of eight
policemen commenced their intervention, which consisted in forcing
the entrance door to the apartment, deafening the applicant with a
grenade and immobilising him. The applicant was aggressive; he was
armed with an axe, knives and an air rifle and he fired at the
policemen. According to the applicant, the policemen were also
aggressive: they shouted, swore and kicked him and one of them shot
him in the left leg. The applicant, even when hurt on his leg, still
threw the earlier prepared bayonets at the police officers. According
to the police, the shot at the applicant's leg was preceded by one
warning shot. However, the applicant submitted that over twenty
bullets still remain lodged in the walls of the house.
- Subsequently, the applicant was
immobilised and handcuffed. There was an ambulance in front of the
house during the whole intervention, so the applicant's wound was
dressed immediately and the applicant was taken to a hospital. On the
way he was resuscitated three times.
- The doctor who admitted the
applicant to the hospital found that he had been in a state of
post-traumatic haemorrhagic shock (pourazowy
wstrząs krwotoczny) which
constituted a real danger to his life. On 16 August 2003
the applicant underwent an operation on his leg. The wound from the
bullet resulted in necrosis and on 29 August 2003 the
applicant's left leg had to be amputated. On 9 September 2003
the applicant left the hospital.
B. The investigation concerning the police intervention
- On 12 December 2003 the
applicant's grandmother applied to the Wrocław District
Prosecutor requesting the prosecution (wniosek
o ściganie) of the police
officers who had participated in the intervention and wounded the
applicant.
- On
15 April 2004 the Wrocław District Prosecutor discontinued the
investigation, finding that the policemen's actions had not
constituted an offence of abuse of power. In the course of the
proceedings before the Prosecutor, twenty two witnesses were heard
and documentation containing a hundred and eighty five pages
gathered. The Prosecutor obtained an expert report of a doctor of
forensic medicine, who had examined the injuries sustained by the
applicant. She further heard the applicant's grandmother, who
said she knew from her grandson that he had been kicked by the
policemen when he was lying hurt on the floor. All the members of the
anti terrorist brigade denied having kicked the applicant. The
prosecutor also heard the applicant and his father as well as outside
witnesses. She further examined the medical report issued by the
doctor who had admitted the applicant to the hospital and referred to
the medical expert report according to which:
“...the applicant had been admitted to the
hospital on 16 August 2003. He had been shot in the left leg with the
bullet's entry probably above the kneecap and exit in the calf. His
artery and under-knee vein were damaged, with an open comminuted
fracture of his left thigh bone. As a result of the above wounds the
complication developed into necrosis and the applicant's left leg had
to be amputated.”
- As regards the course of the
events, the Prosecutor established that:
“After
the unsuccessful intervention of the two policemen who had initially
arrived at the scene, negotiators and a psychologist were sent to the
applicant in order to urge him to leave the house. The negotiations
lasted about two hours but they did not lead to the expected result.
The applicant did not react and his only reaction was to fire an air
rifle in the direction of the negotiators, who had to protect
themselves with shields while approaching the applicant's windows”.
When
the negotiations failed, the anti-terrorist brigade was called.
Before their intervention “another attempt to establish contact
with the applicant was made, and when this failed the brigade began
their intervention”.
- In conclusion, the Prosecutor
found that the anti-terrorist brigade had used means proportionate to
the danger posed by the applicant not only to the policemen and
the applicant's family, but also to third persons. It was also
established in the course of the investigation that the policeman who
fired at the applicant had first appealed to the applicant to calm
down and to put the axe down, and had then fired a warning shot.
- On 24 May 2004 the applicant's
grandmother and father lodged an appeal against the decision of
15 April 2004. They complained that the prosecutor had not
thoroughly examined the circumstances of the case and that the
policemen had abused their powers. In particular, they alleged
that the applicant had been shot in such a way that the gun
was first pointed at the applicant's leg and a shot was then fired.
They submitted further that not just one warning shot had been
fired and that eighteen bullets of live ammunition, seventeen plastic
bullets and six deafening grenades remained lodged in the walls of
their house. They also demanded that an expert be appointed to
examine the way the wounds had been inflicted; in particular the
gunshot wound, but also a broken tooth, wounds to the applicant's
head and a partly torn-off ear.
- On 26 May 2004 the Wrocław
District Prosecutor refused to examine the appeal, finding that it
had been lodged by persons who were not parties to the
proceedings. This decision was challenged by the applicant himself as
well as by his father and grandmother.
- On 6 July 2004 the Wrocław
Regional Prosecutor granted the applicant's appeal and quashed the
challenged decision of 26 May 2004,
so allowing the applicant's appeal against the decision to
discontinue the investigation to be examined by a court.
- On 30 September 2004 the
applicant requested the Wrocław District Court (Sąd
Rejonowy) to appoint an expert
witness to examine the clothes he had been wearing at the time of the
intervention in order to find possible traces of gunpowder.
- On 28 October 2004 the Wrocław
District Court dismissed the appeal against the prosecutor's decision
of 15 April 2004. The court found that in the course of the
investigation which had been carried out properly, all relevant
factors had been established and all necessary evidence had been
taken in order to give a decision on the merits. It further found,
essentially summarising the reasoning of the Wrocław District
Prosecutor's decision of 15 April 2004, that the police's reaction
had been proportionate. As regards the allegations concerning the
shot fired at the applicant's leg, the court found that “the
applicant, when heard, did not confirm those circumstances”.
The court did not refer to the applicant's further reservations
regarding the alleged shortcomings of the investigation, especially
as regards the number of bullets allegedly remaining in the walls of
the applicant's house. Neither did it refer to the applicant's
request to appoint an expert who would examine his clothes.
- On an unspecified date the
applicant's father complained to the Ombudsman.
- The
Ombudsman requested the Supervisory Division of the Wrocław
Prosecutor of Appeal (Wydział
Nadzoru) for information on the
respective proceedings. Having obtained the information requested, on
17 May 2005, the Ombudsman did not find grounds for
intervention. He had examined the case-file, reconstructed again the
course of events which was consistent with the version as established
by the prosecutor and court. The Ombudsman confirmed,
inter alia, that when the
anti-terrorist brigade forced the door, the applicant behaved
aggressively, fired with an air rifle towards the policemen, threw an
axe in their direction and, subsequently began to throw knives
towards them. Then one of the police officers, B.N. fired “warning
shots” and, seeing no reaction on the part of the applicant,
fired a shot towards his leg from a distance of 1.5 metres. The
Ombudsman also found that the applicant had already thrown his father
out of their house about two months earlier, and that then he had
threatened him with a bayonet. Finally, the Ombudsman pointed to the
fact that the request for institution of investigation into the
alleged abuse of power by the police officers had been lodged about
six months after the events in question.
C. Proceedings against the applicant
- On
18 August 2003 the Wroclaw District Prosecutor opened an
investigation against the applicant, who had been charged with an
active assault on the police officers (czynna napaść na
policję) and with causing a bodily injury or an impairment
of health for a period exceeding seven days. In the course of the
inquiry the Prosecutor ordered expert reports from a psychologist and
two psychiatrists, obtained evidence including photographic material
and heard fourteen witnesses including the applicant and members of
his family, as well as all policemen who had participated in the
intervention.
- On
30 June 2004 the Wroclaw District Prosecutor gave a decision and
found that during the intervention two policemen had been hurt; one
had a wound on his cheek and the other had been shot in the right
arm. It was also found however that, at the time of the intervention,
because of his mental illness the applicant had been incapable of
understanding the significance of his behaviour. For that reason the
Prosecutor discontinued the investigation.
D. Internal investigatory report
- The Government produced a
detailed report of the intervention prepared by the police following
the internal explanatory proceedings. The report confirms the
applicant's aggressive behaviour and explains the circumstances in
which the shot was given at the applicant. The report, in its
relevant part, reads as follows:
“the police officers breached the entrance door.
The officer B.N. entered the corridor through the hole in the door
and saw a man with an axe in his hand. The man swung his arm towards
B.N. who jumped back and shouted: “Police! Drop it!” The
man swung his arm again and B.N. fired a warning shot at the ground
and then, at the next attack with the axe very close to B.N., B.N.,
facing a direct threat to his life, directed a shot at the
applicant's leg. The man dropped the axe, cowered, and, limping, went
further back into the house”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The regulations on 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 the order of a police officer is not obeyed, such measures can
be resorted to only in so far as they correspond to the requirements
of a 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 or 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
- The
applicant complained that his life was endangered during the police
intervention in breach of Article 2 of the Convention, which
reads as follows:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
- The applicant further complained that he had been
ill treated by the police officers, and that the authorities had
failed to carry out an effective investigation, in breach of
Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The Court notes that the complaints under Articles 2
and 3 of the Convention are not manifestly ill founded within
the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The applicant's lawyer submitted that as result of the
police officers' actions the applicant had sustained a number of
injuries which were sufficiently serious to amount to
ill-treatment within the scope of Article 3 of the Convention.
The police had acted in a manner not appropriate to a person
suffering from mental illness and had used excessive force against
him, especially as regards the shot directed at the applicant's leg.
According to the lawyer, the police should have used a restraining
net to immobilise the applicant.
- The
applicant's lawyer further submitted that the investigation into the
applicant's allegations had not been effective; the prosecutor had
only examined the use of weapons as provided for by the Police Act
but failed to assess the overall situation and the alleged
shortcomings of the police intervention.
- The
Government submitted that intervention had been initiated at the
request of the applicant's family; the applicant had been behaving
aggressively and posed a threat to himself and to other people. The
police action lasted as long as was necessary to immobilise the
applicant. The element of suffering had been inevitable in the
circumstances of the present case. According to the Government, the
police had had recourse to a degree of force which had been made
necessary by the applicant's conduct.
- The
Government further submitted that the investigation in the present
case had been “thorough and effective”. The circumstances
of the case had been examined by the domestic authorities on three
occasions: (1) internal police inquiry concerning the use of
weapons, (2) two independent sets of investigations and (3)
judicial proceedings. All these sets of proceedings had been prompt
and exhaustive; in the proceedings concerning the alleged abuse of
power by the police officers the domestic authorities had heard
twenty two witnesses, including the applicant. What is more,
extensive documentation was gathered amounting to 185 pages of
documents and three expert reports (two psychologists and one
psychiatrist) were obtained.
2. The Court's assessment
a) Alleged ill-treatment by the police
- The Court reiterates that ill-treatment must attain a
minimum level of severity if it is to fall within the scope of
Article 3. The assessment of this minimum is relative: it
depends on all the circumstances of the case, such as the
duration of the treatment, its physical and/or mental effects and,
in some cases, the sex, age and state of health of the victim
(see Ireland v. the United Kingdom, judgment of
18 January 1978, Series A no. 25, p. 65, § 162).
- Where a person is injured while in detention or
otherwise under the control of the police, any such injury will give
rise to a strong presumption that the person was subjected to
ill-treatment (see Bursuc v. Romania, no. 42066/98,
§ 80, 12 October 2004). The Court also points out that
where an individual when taken into police custody is in good
health, but is found to be injured at the time of release,
it is incumbent on the State to provide a plausible
explanation of how those injuries were caused, failing which a clear
issue arises under Article 3 of the Convention (see Tomasi
v. France, judgment of 27 August 1992,
Series A no. 241-A, pp. 40-41, §§ 108 11,
and Selmouni v. France [GC], no. 25803/94, § 87,
ECHR 1999-V).
- Turning to the circumstances of the present case, the
Court observes that it is undisputed that in the course of the police
intervention the applicant sustained an injury to his left leg, which
caused necrosis and subsequently that the leg had to be amputated
(see paragraph 10 above). Those injuries were sufficiently serious to
amount to inhuman and degrading treatment within the scope of
Article 3 (see, for example, Afanasyev v. Ukraine,
no. 38722/02, § 61, 5 April 2005). It remains
to be considered whether the State should be held
responsible for them under Article 3.
- The
burden rests on the Government to demonstrate with convincing
arguments that the use of force which resulted in the applicant's
injuries was not excessive (see, mutatis mutandis, Rehbock
v. Slovenia, no. 29462/95, § 72,
ECHR 2000-XII, and Matko v. Slovenia,
no. 43393/98, § 104, 2 November 2006.
- The
Court observes that the parties have not disputed that the impugned
injuries were caused by the police officers, who had fired at the
applicant. It is also uncontested that the police officers used force
on 15 August 2003. The parties disagree however on whether the
applicant was kicked in the head after having been immobilised (see
paragraph 8 above). It must be noted that the applicant's
allegations that he had been kicked had not been confirmed following
the domestic investigation of his complaints at two levels (see
paragraph 12 above). While the Court is not bound by the
findings of the domestic authorities as to facts alleged to be in
breach of the Convention, the Court, on the basis of the parties'
observations and the material in its possession, finds it impossible
to establish whether any ill-treatment, apart from the shot directed
at the applicant, occurred in the present case.
- The
Court observes further that it is undisputed between the parties that
the applicant behaved aggressively, threatened his father and
subsequently the negotiators and the police officers with various
weapons and dangerous objects such as axes, knives and bayonets,
shoot towards the negotiators and, subsequently, threw bayonets,
knives and other dangerous weapons and objects at the police
officers. The Court considers it uncontested that the applicant posed
a threat to himself, his family and all persons taking part in the
intervention. As was found by the expert psychologist later during
the investigation, the applicant was incapable of understanding the
significance of his behaviour. Thus, his behaviour could have given
rise to unexpected developments. By calling the police negotiators
the domestic authorities first took steps to calm down the applicant
and only when these methods proved ineffective did they have recourse
to physical force. As regards the shot fired at the applicant's leg,
the Court is persuaded by the Government's arguments that it was
unavoidable in the circumstances of the present case and that the
police officer who wounded the applicant took the shot while facing a
direct threat to his life. The Court finds it impossible to assess,
as the applicant claims, that the use of the restraining net would
have been sufficient in the circumstances of the present case.
- The
Court also notes that, as found by the Ombudsman, a similar, although
less drastic event, however, also involving threats and use of
dangerous objects by the applicant, had taken place some two months
earlier (see paragraph 21 above).
b) Adequacy of the investigation
- The Court reiterates that where an individual makes a
credible assertion that he has suffered treatment infringing Article
3 at the hands of the police or other agents of the State, that
provision, read in conjunction with the State's general duty under
Article 1 of the Convention to “secure to everyone within
their jurisdiction the rights and freedoms defined in ... [the]
Convention”, requires by implication that there should be an
effective official investigation. As with an investigation under
Article 2, such an investigation should be capable of leading to
the identification and punishment of those responsible. Otherwise,
the general legal prohibition of torture and inhuman and
degrading treatment and punishment would, despite its fundamental
importance, be ineffective in practice and it would be possible in
some cases for agents of the State to abuse the rights of those
within their control with virtual impunity (see, among other
authorities, Labita v. Italy [GC], no. 26772/95, §
131, ECHR 2000-IV).
- An
investigation into serious allegations of ill-treatment must
be thorough. That means that the authorities must always make a
serious attempt to find out what happened and should not rely on
hasty or ill founded conclusions to close their
investigation or as the basis of their decisions (see Assenov and
Others v. Bulgaria, 28 October 1998, §§ 103
et seq, Reports of Judgments and Decisions 1998-VIII).
They must take all reasonable steps available to them to secure the
evidence concerning the incident, including, inter alia,
eyewitness testimony and forensic evidence (see Tanrıkulu
v. Turkey [GC], no. 23763/94, ECHR 1999-IV, §§ 104
et seq., and Gül v. Turkey, no. 22676/93,
§ 89, 14 December 2000). Any deficiency in the
investigation which undermines its ability to establish the cause of
injuries or the identity of the persons responsible will risk falling
foul of this standard.
- Turning to the circumstances of the instant case, the
Court notes that, following the applicant's grandmother's complaint
lodged some six months after the events in question, the public
prosecutor carried out an investigation and established the
course of events. During the proceedings a medical report was
produced, documentation containing a hundred and eighty five pages
was gathered and twenty two witnesses were heard, including the
applicant, the members of his family and police officers (see
paragraphs 12 and 33 above).
- Subsequently,
the prosecution decided not to charge the policemen and to
discontinue the investigation because of the lack of unequivocal
evidence of the officers' guilt. The investigation of the district
prosecutor was completed on 15 April 2004 - i.e. nine months after
the impugned events and only four months after the applicant's
grandmother's request for criminal proceedings to be instituted
against the police officers – a period which cannot be
considered excessive, especially given the number of procedural acts
carried out by the authorities (see paragraphs 11 and 12
above; also see, by contrast, Labita v. Italy [GC],
no. 26772/95, § 33, ECHR 2000 IV where only
photographs of the alleged perpetrators had been taken during the
period of fourteen months).
- Furthermore,
the applicant's family had the subsequent opportunity to have the
decision of the district prosecutor reviewed before the court. The
applicant's father and grandmother complained that the circumstances
of the case had not been thoroughly examined. They alleged a number
of shortcomings of the relevant proceedings (see paragraph 15 above).
The District Court found their appeal ill-founded and upheld the
prosecutor's decision. The fact that the appeal was unsuccessful
cannot be considered pertinent. There is no evidence that the
prosecution should have taken any other steps in order to establish
the facts alleged by the applicant. The Court considers that the
procedural shortcomings relied on by the applicant's family were not
crucial for establishing the responsibility of the police officers.
By way of example, as regards the applicant's allegations concerning
the number of bullets still remaining in the walls of his house the
Court notes that this circumstance has not been confirmed by the
domestic authorities. What is more, the request
for institution of investigation into the alleged abuse of power by
the police officers had been lodged about six months after the events
in question (see paragraph 21 above). As regards the
distance from which the shot was fired, it was examined and
established in the proceedings before the Ombudsman, who, in fact,
had conducted additional examination of the circumstances of the
present case (see paragraph 21 above).
- The
Court further notes that the circumstances of the present case were
examined independently in another set of proceedings, namely in the
investigation against the applicant. In that case too the District
Prosecutor had to establish the circumstances of the case. She
ordered three expert reports; from a psychologist and two
psychiatrists, obtained evidence including photographic material and
heard fourteen witnesses including the applicant and members of his
family, as well as all policemen who had participated in the
intervention. The investigation was discontinued due to the
applicant's mental state (see paragraph 23 above).
- The
case was also examined by the police, which, in its internal
investigatory report, confirmed the applicant's aggressive and
dangerous behaviour and explained the circumstances in which the shot
was fired at the applicant (see paragraph 24 above).
- The
Court concludes that the investigation of the applicant's allegations
of ill-treatment was thorough and effective and that the domestic
authorities managed to examine and clarify all relevant circumstances
of the present case. There has thus been no breach of Article 3 of
the Convention in this respect.
- As
regards the complaint under Article 2 of the Convention the
Court considers that in the light of the conclusion which it reached
in respect of the complaint under Article 3 it is not necessary
to examine separately the complaint under Article 2.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 2 of the Convention
that his life had been in danger during the police intervention. He
also claimed a violation of Article 5 § 1 (e) of the
Convention, stating that other means than firing with live ammunition
could be used to immobilise a mentally ill person. He further alleged
a breach of Article 8 of the Convention, submitting that part of
his house had been demolished as a result of the police intervention.
Finally he complained under Article 13 of the Convention that
his appeals had not been effective because the domestic authorities
had failed to thoroughly examine the course of the police
intervention and under Article 17, without further explanation.
- The
Court has examined these complaints as submitted by the applicant.
However, having regard to all the material in its possession and
in so far as the matters complained of are within its competence, the
Court finds that there is nothing in the case file which would
disclose a violation of Articles 5
§ 1 (e), 13 or 8 of the Convention.
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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares
the complaints under Articles 2 and 3 of the Convention
admissible and the remainder of the application inadmissible;
- Holds
that there has been no violation of Article 3 of the Convention.
- Holds
that there is no need to examine the application separately under
Article 2 of the Convention.
Done in English, and notified in writing on 1 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas
Bratza
Deputy Registrar President
