FIFTH SECTION
CASE OF KUMMER v.
THE CZECH REPUBLIC
(Application no.
32133/11)
JUDGMENT
(Merits)
STRASBOURG
25 July 2013
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 Kummer v. the Czech Republic,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 9 July 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
32133/11) against the Czech Republic lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Czech national, Mr Vladimír Kummer (“the applicant”),
on 18 May 2011.
The applicant was represented by Mr D. Netušil,
a lawyer practising in Prague. The Czech Government (“the Government”) were
represented by their Agent, Mr Vít A. Schorm, of the Ministry of Justice.
The applicant alleged, in particular, that he had
been ill-treated while in police custody and that his complaints had not been investigated
effectively.
The application was communicated to the Government
on 9 January 2012.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1956 and lives in Aš.
At about 3 a.m. on 1 May 2010 the applicant was
on his way home from a bar where he had been drinking alcohol when a municipal
police patrol stopped him and asked to see his identity card. He had no identity
documents with him, but told the patrol that he lived just fifty metres away
and that they could accompany him home where he could prove his identity. The
patrol, however, insisted on taking him by car to Aš police station, where he provided
his name and address. He was then told that he had committed the administrative
offence (přestupek) of urinating in a public place. A breathalyser
test gave a result of 2 per mille of alcohol in the applicant’s blood.
The following events at the police station are
disputed between the parties.
A. The applicant’s version of the events
After establishing the applicant’s identity and
the level of alcohol in his blood, the police invited the applicant to enter
another room. He refused to do so and asked why he had been brought to the
police station. A police officer twisted his arm, handcuffed him and led him to
a police cell where the applicant was handcuffed to an iron ring on the wall.
He attempted to free himself but was punched in the chest, the back of his head
and his cheek bone. He was left handcuffed to the wall by one hand.
After some time, the applicant started kicking in
order to attract the attention of some other police officers who might free him.
However, the same police officer entered the cell and knocked him to the
ground. He then knelt on the applicant’s chest and thumped him several times
with both hands. The police officer then stretched the applicant’s free arm and
handcuffed it to an iron ring on the other side of the cell. He kicked the applicant’s
legs so that he was hanging from his stretched arms. Lastly, he shackled the
applicant’s legs and hit him several times on his back. Another police officer
was watching these events in the cell. After being left in this agonising
position for about thirty minutes, the applicant was told to go home.
B. The Government’s version of the events
According to the Government, the applicant was
verbally aggressive when he was taken to the police station and was therefore placed
in a cell. In the cell he started kicking the door and made a hole 6 cm in
diameter. The value of the door was 500 Czech korunas (CZK) (24 euros (EUR)). The
police officers reacted by attaching one of the applicant’s hands to an iron
ring on the wall in order to prevent him from destroying the equipment in the
cell. As the applicant did not stop kicking and shouting, his other hand was
handcuffed to another iron ring on the opposite wall. Since even that did not
prevent the applicant from kicking and trying to reach the door, his hands were
handcuffed behind his back and attached to an iron ring, and his legs were tied
with a leather strap. After fifty minutes in the cell, the applicant calmed
down and was released.
C. The ensuing investigations
While still at the police station, the applicant
called an ambulance and asked for a medical certificate confirming his
injuries. However, the doctor who arrived examined him quickly and concluded
that his injuries were old and that he did not need any medical treatment.
Later in the morning of 1 May 2010 the applicant
went to a hospital. The doctor issued a certificate stating that he had some
old injuries on his back but also fresh injuries on his back, neck and head, bruises
on his wrists and a painful chest. He was given sixteen days’ sick leave.
On the same day, the applicant took the medical
certificate to Cheb police station and lodged a criminal complaint that he had
been ill-treated by the police.
After questioning the applicant, the police sent
the file to the Police Inspectorate (Inspekce Policie) on 3 May 2010.
The file also contained a report on an inspection of the applicant’s cell in Aš
police station conducted by the police officers responsible for the alleged
ill-treatment.
On 19 May 2010 the Police Inspectorate requested
an expert opinion on the origin of the applicant’s injuries. The report of 25
May 2010 by Doctor C. was based on photographs of the applicant and stated that
the injuries to the wrist had probably been caused by the applicant trying to release
his hands from the handcuffs. The expert did not find any other injuries that
could have been sustained at the police station.
On 26 May 2010 the applicant asked the
Plzeň-město prosecutor’s office to supervise the investigation. He
complained, inter alia, that the police officers had not yet been
questioned, which had given them time to coordinate their statements. He also requested
several other investigative measures.
On 5 June 2010 the
applicant further complained that some colleagues of the police officers
against whom he had lodged his criminal complaint had been threatening him in
order to make him withdraw his complaint. On 22 June 2010 the supervising
prosecutor ordered the Police Inspectorate to commission a complex expert
report on the causes of the applicant’s injuries, and to question the applicant
again in order to explain certain inconsistencies in his statements.
On 21 July and 28 July 2010 the Police Inspectorate
questioned the police officers present at Aš police station on the night in
question. They all testified that they had not ill-treated the applicant and
that they had handcuffed and shackled him in the cell for his own protection
and the protection of police property because he had been drunk and kicking the
cell door.
The Inspectorate further questioned two persons
from the bar, who testified that when the applicant had left the bar in the
morning of 1 May 2010 he had been slightly inebriated but had had no injuries. The
following day the applicant had told them that he had been beaten up by the
police and had shown them his injuries.
The Inspectorate also questioned the doctor who had
gone to the police station after the events. She stated that the applicant had
been drunk and had been insulting the people around him. She had seen injuries
on his back, but they had been of earlier origin. His wrists had been red,
probably from the handcuffs.
In the meantime, on 29 July 2010, the Karlovy
Vary Regional Directorate of Police had written to the applicant stating that
his complaints had been found to be unsubstantiated and that the internal
investigation had therefore been closed. The letter provided very few reasons.
On 28 August 2010, in the Inspectorate’s ongoing
investigation, an expert submitted a report on the nature and origin of the
applicant’s injuries, based on information in the investigation file. He stated
that the fresh injuries must have been sustained at the police station, but he
ruled out that they could have resulted from beatings. In his view, the
injuries to the applicant’s head had been caused by a hard surface, such as a
wall. The bruises on his wrists had been caused by straining to free his hands from
the handcuffs, which were attached to a fixed object.
On 6 September 2010 the applicant asked the
Police Inspectorate to provide him with all the documentation in the file in
order to commission another expert opinion, pointing out the serious
deficiencies of the one commissioned by the Inspectorate. He also complained
that for unknown reasons his notification of 5 June 2010 was missing from the
investigation file.
On 13 September 2010 the Police Inspectorate
closed the investigation, finding that no crime had been committed. According to
them, the events as submitted by the applicant contradicted the version of the events
of all the other witnesses. Moreover, two doctors had found that the applicant’s
injuries had been old. Relying on the expert opinion, it stated that the newer
injuries could not have been caused in the way described by the applicant, that
the wrist injuries had been self-inflicted by straining on the handcuffs and
the other injuries could have been caused by low-intensity aggression.
On 20 September 2010 the applicant appealed
against the decision, challenging in particular the expert opinion as incorrect
and one-sided.
On 18 November 2010 the Plzeň-město district
prosecutor’s office, having reviewed the investigation file, dismissed the
applicant’s appeal, finding the conclusions of the Police Inspectorate correct.
It referred to the facts that were unfavourable to the applicant: it had been
established from an alcohol test that he had been drunk; the ambulance doctor
had testified that he had been insulting everybody around him; and he had
damaged the door of the cell.
On 30 December 2010 the applicant obtained an
opinion by another certified expert whom he had commissioned himself. The
report concluded that the applicant had suffered injuries from hitting a hard
surface. However, it had not been possible to conclude, or rule out for that
matter, whether those injuries had been caused by active force (the applicant being
hit) or passive force (the applicant falling). If they had been caused by
active force, it had been of medium intensity.
On 21 February 2011 the Constitutional Court
dismissed an appeal lodged by the applicant against the decision to discontinue
the investigation, holding that there was no constitutional right to have a
third person prosecuted and that such a decision remained within the exclusive
power of the prosecution.
D. Ombudsman’s report
On an unspecified date the applicant complained to
the Ombudsman about his treatment by the police. On 7 December 2010, the
Ombudsman issued a report finding that the police had violated the Police Act
in several respects.
First, on account of his intoxication, the
applicant should not have been placed in a cell without a prior medical
examination. Secondly, his shackling in the cell had been disproportionate.
Moreover, while shackled, the applicant had had no possibility of calling for
assistance other than by shouting or kicking the walls or the door, because he
could not have reached the bell. His access to the bell was blocked when the
police officers closed the cell door in addition to the iron grille of the
cell. Moreover, the tying of his ankles had not been noted in the police
records. In the Ombudsman’s view, there had been no legal grounds for detaining
the applicant at all, so it looked as though he had been detained as a
punishment for his drunken behaviour.
The Ombudsman noted that it was not his primary
task to investigate the alleged ill-treatment of the applicant, as there were
other bodies, such as the Police Inspectorate, to do so. He nevertheless
expressed some doubts about the veracity of the version of the events as
submitted by the police officers. He noted that the doctor who had gone to the
police station and found that the applicant’s injuries had been old had
examined him only very briefly, whereas the following morning another doctor
had found new injuries on the applicant’s body. In his view, assuming that the
injuries had been caused by the applicant himself when straining to free his
hands from the handcuffs and falling to the ground, the question arose as to whether,
given his condition, he should have been placed in a cell and shackled at all.
In reaction to the Ombudsman’s report, the Department
of Internal Inspection of the Karlovy Vary Regional Directorate of Police
reopened the investigation into the applicant’s detention.
In its report of 9 March 2011, it concluded that
police officer J.B. had breached the provisions of the Police Act by placing
the applicant, who had been intoxicated, in a police cell without a prior
medical examination. As a result disciplinary proceedings against J.B. were
instituted.
On 30 March 2011 the head
of the Cheb Police Department found J.B. guilty of placing the applicant, who
had been intoxicated, in a police cell without a prior medical examination and
of not having reported appropriately and fully the circumstances of the
applicant’s detention in the official record. As a punishment he received a
written caution. The operative part of the decision reads:
“[J.B. has been found guilty] of a disciplinary offence of failing
to observe the ‘basic obligations of an officer’ stipulated in section 45(1)(a)
[of Act no. 361/2003] by not complying with ‘service discipline’ under section
46(1) of the Act. On 1 May 2010, while detaining Vladimír Kummer, he
did not secure his medical examination and placed him in a police cell even
though [the applicant] was evidently under the influence of alcohol. He thus
contravened section 31(1) of the Police Act (law no. 273/2008) and section
12(6)(b) of Act no. 159/2009. He further contravened section 109(1) of the
Czech Police Act by not sufficiently describing the facts of the detention in
the official record, in which he did not include all the circumstances of the
detention.”
Subsequently, the ombudsman closed the case under section 18(2)
of Act no. 349/1999.
E. Proceedings for damages
On 13 May 2011 the applicant instituted civil
proceedings against the State under Act no. 82/1998. He requested compensation
for the violation of his right to liberty and freedom from ill-treatment. The
proceedings are pending.
II. RELEVANT DOMESTIC LAW
Under Article 12 § 2 of the Code of Criminal
Procedure in force at the relevant time, the Police Inspectorate was the
investigative body when a crime was allegedly committed by a police officer.
Under section 103 of the Police Act (no.
273/2008) in force at the relevant time, the Police Inspectorate was under the
authority of the Ministry of the Interior. Its director was appointed by the
Government, to which he was responsible. It was composed of police officers who
had been called to perform their duties at the Ministry of the Interior. These
inspectors had the same powers in the carrying out of their duties as police
officers.
Under section 26(1)(b) of the Police Act, a
person present at a police station could be detained if he or she was verbally
insulting a police officer or other person. However, under section 31 a person
who was demonstrably intoxicated could be placed in a police cell only after
being checked by a doctor to determine whether there were reasons for taking the
person to a sobering-up centre or other appropriate medical facility.
III. RELEVANT INTERNATIONAL STANDARDS
For the relevant international instruments see Julin
v. Estonia (nos. 16563/08, 40841/08, 8192/10 and 18656/10, § 95-96, 29 May 2012).
. In addition, the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the
“CPT”) has recently issued several reports on the use of restraints in police
cells.
In its 2012 report on a visit
to Germany (CPT/Inf (2012) 6), the CPT commended Saxony for not using any
restraints inside police cells. The CPT recommended that all the police
authorities in Germany take the same approach and put an end to the resort of
fixation in police establishments. It acknowledged that in the event of a
person in custody behaving in a highly agitated or violent manner, the use of
handcuffs may be justified. However, the person concerned should not be shackled
to fixed objects but should instead be kept under close supervision in a secure
setting and, if necessary, police officers should seek medical assistance and
act in accordance with the doctor’s instructions.
The CPT issued the same recommendation to the French
authorities and noted that restraints have no place in an already secure
environment (see CPT/Inf (2012) 13), paragraph 32).
The CPT had already
criticised the use of restraints on people in police cells in the past and
opined that a medical doctor should be called if the detainee was agitated or
violent (see, for example, report on a visit to Slovakia (see CPT/Inf (97) 2, paragraph
45)). Following a visit to Austria (see CPT/Inf (2005) 13, paragraph 16), it
stated the following:
“In a custodial setting, the practice of restraining a person
in a hyper-extended position with hand and ankle cuffs linked together behind
the back is not acceptable. Staff should be trained to use other, less
hazardous, methods for controlling detained persons who represent a danger to
themselves or to others, such as verbal instruction and manual control
techniques. Further, the police should call in a medical doctor whenever it is
found necessary to restrain an agitated or violent detainee, and act in
accordance with his opinion. If recourse is had to means of physical restraint
vis-ŕ-vis such a detainee, they should be removed at the earliest opportunity;
means of restraint should never be applied, or their application prolonged, as
a punishment.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION IN ITS SUBSTANTIVE ASPECT
The applicant complained that he had been
ill-treated by police officers while detained at a police station. He relied on
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 Government considered the complaint
premature, as proceedings for damages against the State under Act no. 82/1998
were pending. They argued that the applicant had a good chance of success in
those proceedings and of being compensated for his injuries because his detention
in a police cell had been acknowledged as illegal by the domestic police
authorities.
The applicant disagreed.
The Court observes that the present complaint
concerns not the issue of the applicant’s detention but his alleged
ill-treatment. Therefore, the fact that the illegality of the applicant’s
detention was acknowledged by the domestic authorities has no bearing on the
present complaint. It reiterates its well-established case-law that in cases
where an individual has an arguable claim under Article 3 of the Convention,
the notion of an effective remedy entails, on the part of the State, a thorough
and effective investigation capable of leading to the identification and
punishment of those responsible (see Selmouni v. France [GC], no.
25803/94, § 79, ECHR 1999-V). Proceedings that can only result in the award of
compensation to be paid by the State, but not in the punishment of those
responsible for the ill-treatment, cannot be considered as satisfying the
procedural requirement of Article 3 in cases of wilful ill-treatment of persons
who are within the control of agents of the State (see Krastanov v. Bulgaria,
no. 50222/99, § 60, 30 September 2004, and Kopylov v. Russia, no.
3933/04, § 130, 29 July 2010). Consequently,
civil proceedings for damages are not an effective remedy that needs to be
exhausted for the present complaint.
The Court notes that the Police Inspectorate
closed the investigation regarding the alleged ill-treatment and the applicant
used all available remedies against that decision. Both his appeal to the
prosecutor and his constitutional appeal were dismissed.
Accordingly, the Court dismisses the Government’s
objection.
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Arguments of the parties
The applicant complained that he had been beaten
up by a police officer while in a cell and that he had been handcuffed to the
wall even though he had not behaved aggressively. He admitted to kicking the
door, but alleged that that had been in order to call for help, as the position
in which he had been handcuffed had been extremely painful. He considered that
his version of the events had been supported by the expert opinion of 30 December
2010. He also referred to the inconsistencies in the police officers’
statements, which had made their version of the events less credible.
Furthermore, he considered that the expert report of 28 August 2010 had
been biased, as the expert concerned was often employed by the police and was economically
dependent on them.
The applicant further stated that the police
officers had had a motive to ill-treat him: he had had a long-term dispute with
the municipal police, who were friends of the police officers, about parking fines.
The fines had been quashed by the administrative authorities, as a result of
which he was unpopular with the municipal police and had suffered verbal
attacks from them on many occasions.
The Government argued that any suffering the
applicant had sustained had not reached the minimum level of severity for the
application of Article 3 of the Convention.
They maintained that the applicant’s version of
the events was not credible as he had kept changing it. Any use of force
against the applicant had been proportionate and justified by his conduct. It had
been necessary to protect the police property, as the applicant had damaged the
cell door, and later to protect the applicant from harming himself, as he had tried
to free himself from the handcuffs, which had caused him the injuries and pain.
The Government submitted that any injuries the
applicant had sustained had been caused by his handcuffing and his behaviour in
the cell. This conclusion had been supported by the medical experts, who had ruled
out that the applicant’s injuries could have been sustained in the way that he
had described.
2. The Court’s assessment
The Court reiterates that in respect of a person
deprived of his liberty, any 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 of the Convention
(see Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336).
Accordingly, Article 3 of the Convention is engaged in the present case, as the
applicant alleged that he had been subjected to physical force while detained
in a police cell.
. The
Court has held that where an individual is taken into police custody 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, Selmouni
v. France, cited above, § 87; and Ribitsch v. Austria,
cited above, § 34).
The Court observes that the applicant was
detained at a police station in the early hours of 1 May 2010. Immediately
after release an ambulance doctor did not see any fresh injuries on the
applicant. The Court notes, however, that the ambulance doctor examined the
applicant only very briefly. Afterwards, the applicant went to see a doctor at
a local hospital, who undertook a detailed examination of the applicant and
confirmed that he had fresh injuries on his back, neck and head, bruises on his
wrists and a painful chest. This examination took place the very morning and so
there was not any unnecessary delay between release and the examination that
could cast doubt on the relevance of the issued medical certificate (compare Balogh
v. Hungary, no. 47940/99, § 49, 20 July 2004). It is thus incumbent on the
Government to provide a plausible explanation as to how the applicant sustained
those injuries and whether they were caused by an illegal use of force, in
violation of Article 3 of the Convention.
The Government relied on two expert medical
opinions commissioned by the Police Inspectorate that ruled out that the
injuries could have resulted from beatings. The opinions concluded that the
injuries could have been caused by the applicant himself hitting or falling
against a hard surface, such as a wall or the ground. The injuries to the
wrists had been caused by straining to release his hands from the handcuffs. The
expert opinion submitted by the applicant was more complete and did not rule
out that the injuries could have been caused by beatings. On the other hand, it
also admitted that the injuries might have been caused by passive force, namely,
the applicant falling against hard surfaces.
The Court further takes into account the state
of intoxication of the applicant, which makes the Government’s version of the
facts - that the applicant fell and hit himself - even more plausible.
Accordingly, the Court is unable to conclude,
based on the evidence in the case file, that the applicant was attacked and
beaten by the police officers at the police station. However, assuming the
plausibility of the Government’s version of the facts - that the injuries the
applicant sustained were self-inflicted by his own violent behaviour in the
cell - it remains to be decided whether restraining the applicant in the cell
itself was in breach of Article 3 of the Convention.
. The
Court reiterates that measures depriving a person of his liberty may often
involve an inevitable element of suffering or humiliation. Nevertheless, it is
incumbent on the State to ensure that a person is detained in conditions which
are compatible with respect for his human dignity, that the manner and method
of the execution of the measure do not subject him to distress or hardship of
an intensity exceeding the unavoidable level of suffering inherent in detention
and that, given the practical demands of imprisonment, his health and
well-being are adequately secured (see Valašinas
v. Lithuania, no. 44558/98, §§ 101-02, ECHR
2001-VIII).
The Court has stated before that handcuffing does not normally give rise to an issue under Article
3 of the Convention where the measure has been imposed in connection with
lawful arrest or detention and does not entail use of force, or public
exposure, exceeding what is reasonably considered necessary and proportionate in
the circumstances. In this regard, it is of importance, for instance, whether
there is reason to believe that the person concerned would resist arrest or
abscond, cause injury or damage, or suppress evidence (see Raninen v.
Finland, 16 December 1997, § 56, Reports of Judgments and Decisions
1997-VIII; Hénaf v. France, no. 65436/01, § 56, ECHR 2003-XI;
and Kashavelov v. Bulgaria, no. 891/05, § 38, 20 January 2011). In any case, the Court attaches
particular importance to the circumstances of each case and examines whether
the use of restraints was necessary (see Gorodnitchev v. Russia, no.
52058/99, § 102, 24 May 2007).
Moreover, in order to fall within the scope of
Article 3, the handcuffing, like any other treatment, must attain a minimum
level of severity. Treatment is considered to be “degrading” when it humiliates
or debases an individual, showing a lack of respect for, or diminishing, his or
her human dignity, or arouses feelings of fear, anguish or inferiority capable
of breaking an individual’s moral and physical resistance
(see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 220,
ECHR 2011). Publicity may be a relevant factor in
assessing whether a treatment is “degrading” within the meaning of Article 3,
but the Court does not consider that absence of publicity will necessarily
prevent a given treatment from falling into that category: it may well suffice
that the victim is humiliated in his own eyes, even if not in the eyes of
others (see Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26). Application of
measures of restraint to an applicant in a non-public setting may still give
rise to a violation of Article 3 in a situation where no serious risks to
security could be proved to exist (see Ashot Harutyunyan v. Armenia,
no. 34334/04, § 125, 15 June 2010,
referring to Hénaf v. France, cited above, §§ 51 and 56).
Recently, the Court has had occasion to decide
on the use of restraints in a cell, and noted that the application of such a
measure calls for a thorough scrutiny of its lawfulness as well as of the
grounds for, and the manner of, its use (see Julin v. Estonia, cited
above, § 124).
Turning to the present case, the Court first
notes that there are minor factual disputes about the restraining of the
applicant in the police cell. The Government denied that the applicant had been
shackled to an iron ring immediately upon placement in the cell. However, the
parties agree on the ensuing nature of the restraints used on the applicant.
First, one hand was shackled to an iron ring in order to prevent him, according
to the Government, from kicking the door, which he had damaged. Later, as the
applicant was still agitated, his other hand was also shackled to an iron ring
on the opposite wall. This stretched position was later changed when the applicant’s
hands were secured behind his back and handcuffed to one of the iron rings. Lastly,
his legs were tied with a leather strap to prevent him from kicking the cell
door. This treatment lasted for about fifty minutes. As a result of his stay in
the cell, the applicant sustained injuries to his back, neck, head and chest, and
bruises on his wrists, which prevented him from working for sixteen days.
As to the justification of the treatment, the Court considers that using restraints on a
person already in a police cell, namely a secure environment, can be justified
only in exceptional circumstances (see also the recommendations of the
CPT in paragraphs 41-43 above and Julin, cited above, § 127). The Court
cannot accept the argument that the small hole which the applicant made in the cell
door constituted serious damage to property, justifying the use of restraints to
such an extent (see, mutatis mutandis, the European Prison Rules, paragraph
68.2). In this context, it is crucial to note that the applicant’s banging on
the door was not a wilful act of destruction. Rather, as noted by the Ombudsman,
it was the only way in which the applicant could call for assistance, given
that his access to the bell was blocked when the police officers closed the
door in addition to the iron grille. Furthermore, instead of ensuring that the
applicant would be subjected to the least intrusive measure available in the circumstances
(see Julin v. Estonia, cited above,
§ 127), he was increasingly restrained: in the end, both his hands were tied
behind his back and shackled to an iron ring, and his legs were tied together
with a leather strap.
. As
regards the Government’s argument that the restraints were aimed at preventing
the applicant from harming himself, the Court notes that not only were the handcuffs ineffective in
keeping the applicant from causing harm to himself, but they caused bruising to
his wrists at least.
As to the severity of the treatment, the Court
notes that the shackling of the applicant lasted only a limited time, that is a
maximum of fifty minutes. In Kazakova v. Bulgaria (no. 55061/00, § 53,
22 June 2006) a likewise limited duration of the shackling of the
applicant was one of the reasons why the Court found that the minimum level of
severity of the ill-treatment had not been reached. Unlike in that case, however,
here the restraints were applied in an environment that was already secure and
were far more intrusive. The police
officers in the present case, in breach of the domestic law (see paragraphs 30,
33 and 34 above), placed the applicant, who due to his drunkenness was in a
vulnerable state, in a cell with no possibility of asking for assistance other
than by banging on the door. When he did so, he was handcuffed to an iron ring.
As the applicant did not calm down, the police officers continued to apply
increasingly intrusive restraints. The Court considers that such a situation must
have aroused in the applicant feelings of fear, anguish
and inferiority and was an attack on his dignity.
. The Court also accepts, as evidenced
by the injuries noted in the medical reports (see paragraphs 12, 22 and 27
above), that the shackling and stretching of the applicant must have caused him
considerable pain, which is an important factor to take into account in
assessing the severity of the treatment (see Archip v. Romania,
no. 49608/08, § 55, 27 September 2011; conversely,
Kuzmenko v. Russia, no. 18541/04, § 45, 21 December 2010, where the Court did not find a violation of
Article 3 in respect of the handcuffing of the applicant because, inter alia,
she had not contended that the handcuffing had affected her physically; and Raninen,
cited above, §§ 57-59, where the Court did not find a violation, in spite
of the fact that the handcuffing had not been justified, because it had not
affected the applicant physically or mentally).
. The
Court also cannot lose sight of the whole picture. The events unrolled from a
minor offence when the applicant was allegedly urinating in a public place. The
applicant was apprehended only because he did not carry any identity documents
with him, even though there is no obligation under domestic law to carry
identity documents at all times.
. In the
final analysis, the Court considers that the national authorities’ treatment of
the applicant was not compatible with the provisions of Article 3 of the
Convention. It concludes in the instant case that the use of restraints in the
conditions outlined above amounted to degrading treatment.
. There
has therefore been a violation of Article 3 of the Convention in its
substantive aspect.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION IN ITS PROCEDURAL ASPECT
The applicant complained that the investigation
of his ill-treatment had been ineffective. He relied on Articles 6 and 13 of
the Convention. The Court, however, considers that his complaint is to be
examined under 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 this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Arguments of the parties
The applicant argued that the investigation had
been one-sided and its conclusions had given too much weight to the police
officers’ statements and the expert opinion of 28 August 2010, which was biased
and unreasoned. At the same time, the prosecuting authorities had ignored his
requests for the admission of additional evidence, including a reconstruction
of the events.
The applicant further maintained that the
investigation had not been independent because, like the police, the Police
Inspectorate was under the authority of the Ministry of the Interior. Furthermore,
the inspectors were members of the police who had been only temporarily assigned
to perform the duties of the Police Inspectorate.
The Government maintained that the investigation
had satisfied all the requirements of an effective investigation under Article
3 of the Convention, despite some minor delays in questioning the police
officers present at the police station. The Police Inspectorate had questioned
all the relevant witnesses and gathered all the necessary evidence.
The Government further maintained that the independence
and impartiality of the Police Inspectorate were beyond doubt. Although officially
under the authority of the Ministry of the Interior, the Inspectorate was fully
independent from the Minister of the Interior because its director had been appointed
by the Government. Furthermore, its independence and impartiality had been guaranteed
by the fact that the present investigation had been closely supervised by a prosecutor.
2. The Court’s assessment
The Court reiterates that where an individual
makes a credible assertion that he has suffered treatment infringing 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 (see Labita v. Italy
[GC], no. 26772/95, § 131, ECHR 2000-IV).
. In its case-law the Court has
established that for an investigation to be considered effective it must be capable
of leading to the establishment of the facts of the case and to the identification
and punishment of those responsible. The authorities must have taken the
reasonable steps available to them to secure the evidence concerning the
incident, including, inter alia, eyewitness testimony, forensic
evidence, and so on. 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 (see Denis Vasilyev v. Russia, no. 32704/04, § 100, 17
December 2009). A requirement of promptness and
reasonable expedition is implicit in this context (see Yasa v. Turkey, judgment of
2 September 1998, Reports 1998-VI, pp. 2439-40, §§ 102-04, and Çakici v. Turkey [GC], no.
23657/94, §§ 80, 87 and 105-06, ECHR 1999-IV).
. In
the past, the Court has found a violation where police officers were not kept
separated after the incident and were not questioned until nearly three days
later, notwithstanding the fact that no evidence indicated any collusion among
them or with their colleagues. It was found that the mere fact that appropriate
steps were not taken to reduce the risk of such collusion amounted to a
significant shortcoming in the adequacy of the investigation (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 330, ECHR 2007-VI).
The investigation must also be independent, in
that it may generally be regarded as necessary for the persons responsible for
and carrying out the investigation to be independent from those implicated in
the events. This means not only a lack of hierarchical or institutional
connection but also a practical independence (see Đurđević
v. Croatia, no. 52442/09, § 85, ECHR 2011 (extracts)). In Eremiášová and Pechová v.
the Czech Republic (no. 23944/04, 16
February 2012), the Court found that the Supervision
Department, a predecessor of the Police Inspectorate, was not independent from the
police. It based its conclusion on the fact that the Supervision Department
was, like the police, under the authority of the Ministry of the Interior and
directly managed by the Minister of the Interior.
. Turning to the present case, the
Court notes that the applicant lodged his criminal complaint on the day of the alleged
ill-treatment. However, the police officers who were allegedly responsible for
it were questioned almost three months later, after the applicant had
complained about the inactivity of the Police Inspectorate. Such an approach by
the Police Inspectorate can hardly be reconciled with their obligation to
conduct the investigation with exemplary diligence
and promptness (see Tarkan Yavaş v. Turkey, no. 58210/08, § 35, 18 September 2012).
. Regarding the question of the independence
of the Police Inspectorate, the Court notes that it was still a unit of the
Ministry of the Interior. Yet, unlike the Supervision Department considered by
the Court in Eremiášová and Pechová, cited above, the head of the
Police Inspectorate was appointed by, and responsible to, the Government and
not to the Minister of the Interior. While the Court agrees that this aspect
increased the independence of the Police Inspectorate vis-ŕ-vis the police, the
Court does not consider that this sole difference can justify reaching a
different conclusion from the one reached in the case of Eremiášová and
Pechová.
The Court must also take into account that members
of the Police Inspectorate remained police officers who had been called to
perform duties in the Ministry of the Interior. This fact alone considerably
undermined their independence vis-ŕ-vis the police. In the Court’s view, such
an arrangement did not present an appearance of
independence and did not guarantee public confidence in the State’s monopoly on
the use of force (see Eremiášová and Pechová, cited above, § 154,
and Ramsahai and Others, cited above, § 325).
. The
Court notes that in this case the investigation by the Police Inspectorate was
supervised by the prosecutor. However, while the prosecutor was independent
from the police, his merely supervisory role was not sufficient to make the
police investigation comply with the requirement of independence (compare with Ramsahai
and Others, cited above, §§ 342-346, which concerned an investigation under
the direct responsibility of the public prosecution service).
. Accordingly,
the Court considers that the investigation in the present case did not comply
with the requirements of an effective investigation under Article 3 of the
Convention and that there has been a violation of that provision in its
procedural aspect as well.
III. 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 CZK 5,040 (EUR 198) in
respect of pecuniary damage for the injuries he had sustained at the police
station and CZK 100,000 (EUR 3,935) for non-pecuniary damage.
The Government considered that the medical
reports the applicant submitted did not prove any causal link between the alleged
treatment of the applicant and the injuries sustained. Furthermore, they
disputed the accuracy of the medical reports. Regarding non-pecuniary damage,
the Government considered that the Court should award a maximum of EUR 2,000.
The Court notes that domestic proceedings in
which the applicant claims damages for his ill-treatment are pending. Consequently, the question of the application of Article 41 is
not yet ready for decision and should be reserved pending a final domestic
decision on this matter, due regard being had to the possibility that on this
point and during the domestic proceedings a friendly settlement may be reached
between the respondent State and the applicant (Rule 75 § 1 of the Rules of
Court; see Salah v. the Netherlands, no. 8196/02, § 82, ECHR 2006-IX
(extracts)).
B. Costs and expenses
The applicant also claimed CZK 4,800 (EUR 189) for
the cost of the expert medical report which he had commissioned.
The Government accepted that the amount claimed was
justified and supported by the relevant documents.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court awards the
applicant EUR 189 under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 3 of the Convention in its substantive aspect;
3. Holds that there has been a violation of
Article 3 of the Convention in its procedural aspect;
4. Holds that as far as
any damage resulting from the violations found in the present case is
concerned, the question of the application of Article 41 is not ready for
decision and accordingly,
(a) reserves the said question in this respect;
(b) invites the parties to submit, within three months of the date on
which the judgment becomes final in accordance with Article 44 § 2 of the
Convention, their written observations on the matter and, in particular, to
notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if
need be;
5. Holds
(a) that the respondent State is to pay the
applicant, within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 189
(one hundred and eighty-nine euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, to be converted into Czech korunas
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.
Done in English, and notified in writing on 25 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark
Villiger
Registrar President
