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FOURTH SECTION

Application no 7066/11
Tomasz POKRZYWKA

against Poland
lodged on 25 January 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Tomasz Pokrzywka, is a Polish national who was born in 1985 and lives in Krasnystaw.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 27 September 2008 he went to a hotel in Krasnystaw where he was involved in an altercation with someone. The receptionist called the police. The police arrived by car. As the applicant had in the meantime left the hotel, two police officers followed him and ordered him to get into the car. Subsequently he was taken back to the hotel where the receptionist identified him. Later on he was taken to the police station in Krasnystaw. When he was getting out of the car, he was pushed and shoved. At the police station he was handcuffed behind his back. The other police officer hit him with a truncheon. He was subsequently beaten again. The police took him to the sobering-up centre. On the way to the sobering-up centre, in the police car, he was beaten again. He was thrown on the floor face down and the two police officers trampled on him, stepped on his buttocks and kicked him many times. Later on, a breathalyser test was taken. It showed 0.34 ml of alcohol per litre. He was then placed in restraining belts until the morning of 28 September 2008 when he was released.

After his release he went to a doctor. He submitted a medical certificate (obdukcja) dated 29 September 2008. It reads as follows:

“On 27 September 2008 around 9 p.m. Tomasz Pokrzywka suffered injuries as a result of a beating. The victim has stated that he was hit in the stomach and legs, then knocked over and trampled on. An examination revealed bruises on his right and left temple and on his right cheekbone, bruise on his right elbow and left knee. On palpation, pain in left underbelly. Pain and swelling of the right testicle. X-ray of cranium and left knee have not shown any trauma. Conclusion: Injuries have caused dysfunction of the applicant’s body for a period less than 7 days. They could have originated in the circumstances as described by the victim.”

On 1 October 2008 the applicant was admitted to a hospital in Krasnystaw. He reported the ill-treatment by the police.

On 2 October 2008 he was operated on in connection with a post-traumatic haematoma of his scrotum and rupture of the left testicle (pekniecie lewego jadra). He was discharged from the hospital on 8 October 2008.

Subsequently the prosecution authorities carried out an investigation into his allegations of ill-treatment.

By a decision of 31 March 1009 the Janów Lubelski District Prosecutor discontinued the investigation. It was established that the applicant had been arrested by two police officers as he had committed a breach of public order in the hotel. As he had been aggressive, he had to be physically restrained and had been hit with a truncheon. He had subsequently been handcuffed and taken to the Krasnystaw police station. As he had still been aggressive and apparently drunk, a decision had been taken to take him to the sobering-up centre. In the car he had been aggressive, banging his head against the car’s sides. At the sobering-up centre a breathalyser test had shown that the applicant had 0.34 mg of alcohol per litre of blood. He had been strapped to a bed as he had been aggressive. He was released in the morning of 28 September 2008. Upon his release he had not made any complaints. On 29 September 2008 the applicant went to see a forensic doctor who established his injuries (as per the certificate quoted above). On 1 October 2008 the applicant had been admitted to Krasnystaw hospital complaining about having been beaten up. He was subsequently operated on. A haematoma in his scrotum was evacuated and a ruptured testicle was stitched.

The court referred to an additional opinion prepared by forensic experts for the purposes of the investigation. The experts had found that the applicant’s injuries had caused a dysfunction of his body for a period longer than 7 days. They had found that the injuries could have been caused by kicking, by falling on a hard surface or by a police truncheon. The injury to his testicle could have been caused by kicking. As the applicant had stated that in the police car the police officers had been trampling on his body and stepping on his buttocks while he lay on the floor face down, the injury could not have been caused by their actions.

The prosecutor further referred to the records of the sobering-up centre which did not show that the applicant had complained about any injuries upon his release. It further noted that the use of force by the police had been recorded in an official note. That note referred to the applicant’s aggressive behaviour in that he had been banging his head against the interior side of the car. The court concluded that the available evidence did not support a conclusion that the injuries had been caused by a disproportionate use of force by the police.

The applicant appealed, submitting that the prosecuting authorities had discontinued the investigation despite the fact that the expert opinion indicated that his injuries could have been caused by the applicant being kicked in the scrotum.

On 26 June 2009 the Krasnystaw District Court upheld the prosecutor’s decision. It was of the view that it was correct and that its conclusion that the injury could not have been caused by the police’s conduct described by the applicant (the officers stepping on his buttocks while he had been lying face down) had to be upheld.

The applicant complained to the Ministry of Justice. He complained that he had been ill-treated by the police and that the authorities had conducted a very superficial examination of his case. Subsequently, the investigation was resumed.

His mother, his father and his friend were questioned. They confirmed that the applicant had come back home on 28 September 2008 with injuries which corresponded to his version of events. He had complained about having been beaten up by the police. His testicle had been swollen. He had had difficulty walking. He had told his parents that he had been hit in the stomach with a truncheon and that the officers had stepped on his buttocks when he had been lying face down in the car.

On 1 June 2010 the Janów Lubelski District Prosecutor discontinued the proceedings again. She reiterated the factual findings of the first decision and its reasoning. She noted that at the sobering-up centre the applicant had remained strapped to a bed until 3.25 a.m. It was further reiterated that the injuries suffered by the applicant did not correspond to the police’s conduct as described. The prosecutor observed that the doctors at the sobering-up centre had not recorded any complaints on the applicant’s part. She further referred to the opinion of 29 September 2008 submitted by the applicant and to his medical record made at the time of his admission to the hospital on 1 October 2008. She noted that on the former date the applicant did not have any bruises on his chest, but that he did have bruises on the latter date. She was of the view that the injury to the applicant’s scrotum must have been caused by an unknown person during the period from 27 to 29 September.

The applicant appealed. He essentially argued that the use of force against him had been disproportionate. He submitted that the records of the sobering-up centre were not accurate as he must have already had bruises at the time of his discharge.

On 24 September 2010 the Krasnystaw District Court upheld the contested decision, essentially agreeing with the prosecutor’s conclusions. It reiterated that the available evidence had not made it possible to establish the circumstances in which the applicant had suffered his injuries.

COMPLAINT

The applicant complains, referring to Article 3 of the Convention, that he was ill-treated by the police. The first investigation conducted was very superficial. It was only when the case was re-examined that the authorities questioned his family. The authorities considered that the testimony given by the police was credible but did not explain why evidence indicating that the applicant had been ill-treated should not be taken into consideration. The use of force against him was manifestly disproportionate. He complains that he was tied up by straps at the sobering-up centre, which had caused him considerable pain and he was unable to use the toilet for several.

QUESTIONS TO THE PARTIES

1.  Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?

2.  Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?