ZEMAITIS v. LITHUANIA - 74305/17 (Judgment : Article 3 - Prohibition of torture : Second Section Committee) [2019] ECHR 727 (15 October 2019)

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You are here: BAILII >> Databases >> European Court of Human Rights >> ZEMAITIS v. LITHUANIA - 74305/17 (Judgment : Article 3 - Prohibition of torture : Second Section Committee) [2019] ECHR 727 (15 October 2019) URL: http://www.bailii.org/eu/cases/ECHR/2019/727.html Cite as: [2019] ECHR 727

In the case of Žemaitis v. Lithuania,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Valeriu Griţco, President,
          Egidijus Kūris,
          Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 24 September 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 74305/17) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Augustinas Žemaitis (“the applicant”), on 13 October 2017.

2. The applicant was represented by Ms M. Gušauskienė, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms L. Urbaitė.

3. On 5 September 2018 the complaints concerning the alleged ill-treatment by the police and lack of an effective investigation under Article 3 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1994 and lives in Vilnius.

A. The applicant’s arrest

5. On the night of 30 June 2014, the Vilnius police received a call that a suspected drink-driver was on the streets of one of the city’s residential neighbourhoods. Several police cars were sent to that area. When the police spotted the suspected car, it stopped and four young men ran away from it. Police officers began searching the neighbourhood for the men.

6. That same night, at about 1.30 a.m., the applicant was walking home from his girlfriend’s house in that neighbourhood. He was arrested in relation to the suspected drink-driving offence.

7. On 1 July 2014 the police officers submitted official reports describing the events of the previous night. The content of those reports, in so far as relevant, was as follows:

(i) Officer A.U. stated that after arresting two men (I.J. and A.S.) he and another officer, M.B., had continued looking for more suspects. Then A.U. had noticed another young man who, on seeing him, had started running and had not reacted to A.U.’s command “Stop, police”. The man had only stopped after realising that he would not be able to get away. A.U. had caught up with him and told him to lie down on the ground, at which time a police car had approached and the officers from that car had put handcuffs on the man and had taken him to the police station. A.U.’s report did not indicate the identity of that young man.

(ii) Officer M.B. stated that while he had been running down the street looking for suspects, he had heard A.U. yell “Stop, police” and had seen a man, later identified as the applicant, running away and ignoring A.U.’s order to stop. When A.U. had caught up with the applicant, the applicant had actively resisted the arrest – he had tried to push A.U. away and to escape. Then M.B. had approached them and, using combat wrestling methods, had thrown the applicant to the ground. The applicant had fallen down onto his stomach, had put his hands under his body and had not obeyed an order to pull them out, and therefore his hands had been pulled out from under him by force and twisted, and the applicant had then been handcuffed. He had been put into a police car and taken to the police station.

On a later date M.B. clarified that in his initial report he had mistakenly stated that he had knocked the applicant to the ground, when in fact he had only helped A.U. to arrest the applicant, who had already been lying on the ground.

(iii) Officer E.Z. stated that he had been in the police car which had taken two suspects to the police station – the applicant and Š.M. According to E.Z.’s report, force had been used against Š.M. in order to handcuff him. The report did not specify whether any force or special measures had been used against the applicant.

8. On that same night the applicant gave a written statement to the police. He stated that it had been dark and he had heard someone run after him shouting. He had not realised that it was a police officer and had started running away. When he had seen that he was being chased by an officer, he had stopped and raised his hands in the air. The applicant stated that he had been arrested by one officer. That officer had knocked him down to the ground, hit him several times on the head and in the ribs, and handcuffed him. When the applicant had been lifted up from the ground, his glasses had fallen off, and he had asked the officer to find them. The officer had located the glasses but had deliberately stepped on them. The applicant had been led towards a police car, where another arrested man had been sitting. It had been asked if that man knew the applicant, to which he had answered in the negative, whereupon the officer who had arrested the applicant had hit that man on the head. The applicant had then been put into a different police car.

9. At the police station the applicant took an alcohol test which showed that he was sober. He was released later that night. The applicant went to the hospital as he was suffering from pain in the chest area and underwent an X‑ray scan but no broken ribs were detected.

10. On 1 July 2014 administrative proceedings were instituted against the applicant for disobeying lawful orders of the police.

B. Pre-trial investigation

11. On 2 July 2014 the applicant lodged a complaint with the Vilnius police, seeking to institute criminal proceedings against the officer who had hit him and broken his glasses.

12. In the complaint the applicant stated that he was short-sighted and found it particularly difficult to see in the dark. On his way home, he had heard the sound of a car engine, had felt unsafe and had begun to walk faster. At the same time he had heard a man yelling at him to stop. The man had not said that he was a police officer and the applicant had thought that the man might attack him, which was why he had started running towards a well-lit part of the street. When the applicant had got to the well-lit part of the street, he had turned around and seen that it had been a police officer chasing him – he had then stopped and raised his hands in the air. The officer had told him to lie on the ground. The applicant had not resisted. However, the officer had knocked him down, twisted his arms and hit him several times on the head and on the right side of his chest. While the applicant had been lying on the ground, the officer had asked him why he had been running and the applicant had replied that he had been scared and had mistaken the officer for a robber. The officer had then hit him a few more times on the head and the right side of his chest. Then another police officer had arrived, who had handcuffed the applicant and told him to stand up. After the applicant had stood up, the second officer had left.

13. The applicant also described how his glasses had been broken and how he had been taken to a police car and the police station (see paragraph 8 above). At around 3.30 a.m. that night his father had come to pick him up. On their way home, they had stopped at the location of the applicant’s arrest to look for his glasses and had found that they were completely broken. The applicant submitted a photograph of the broken glasses to the police on a later date.

14. On 3 July 2014 the applicant was examined by a court medical expert who found bruises on his left ear and cheek, multiple scrapes on his forearms, hands and wrists, and bruises on the right side of his chest. The expert stated that the injuries had likely been made using a hard blunt object and that they amounted to a negligible impairment to his health (nežymus sveikatos sutrikdymas).

15. On 7 July 2014, when questioned as a witness, the applicant submitted that after he had stopped and raised his hands in the air, the officer had told him to lie on the ground. He had then taken the applicant’s left arm and twisted it, pushing the applicant towards the ground, so the applicant had lied down by himself and had not resisted because he had not wanted to fall. His right hand had accidentally stayed under his stomach but he had not intended to resist.

16. On 9 July 2014 a special department of the Vilnius police opened a pre-trial investigation into a possible abuse of office.

17. On 14 July 2014 officer A.U. left the police service of his own volition.

18. On 30 July 2014 A.U. gave a statement in the investigation. He stated that on the night of 30 June 2014 he had seen the applicant and yelled “Stop”, whereupon the applicant had turned around, had looked at A.U. and had started running. A.U. stated that the applicant must have seen that A.U. had been a police officer because he had been in a well-lit part of the street and he had been wearing a light-reflecting vest. A.U. had started running after the applicant, yelling “Stop, police”, but the applicant had not stopped or raised his hands in the air. Eventually A.U. had caught him and had grabbed him. The applicant had not resisted when being arrested. Then officer M.B. had approached, A.U. and M.B. had knocked the applicant, who had been flailing his arms around, down to the ground. Then A.U. had left the applicant with M.B. and run off to search for other suspects.

19. On 8 September 2014 one of the individuals who had been arrested on the night of 30 June 2014, Š.M., was questioned as a witness. He stated that after he had been arrested, he had seen officers apprehend a young man whom he not had known. He had seen how the officer had thrown the man down (permetė per save) and twisted his arm.

20. On 11 September 2014 A.U. was officially notified that he was suspected of abuse of office under Article 228 § 1 of the Criminal Code. He was questioned and stated that after he had caught up with the applicant, he had tried to grab the applicant by his sleeve but the applicant had pushed him away. Then M.B. had approached, and A.U. and M.B. together had tried to knock the applicant to the ground. A.U. had kicked the applicant on the legs. When the applicant had fallen down, he had hidden his head and hands under his body. The officers had pressed him to the ground with their knees and had pulled the applicant’s hands out from under his body. Then A.U. had seen another suspect and had run after him, leaving M.B. with the applicant. A.U. had not seen the applicant’s glasses or known whether they had been broken.

21. On 2 October 2014 the administrative proceedings against the applicant (see paragraph 10 above) were discontinued. It appears that in those proceedings A.U. admitted that he had initially yelled “Stop” and not “Stop, police”. The decision to discontinue the administrative proceedings stated that the applicant had not acted deliberately in defiance of the officer’s orders.

22. On 13 October 2014 the applicant was presented with a line-up including A.U. and two other officers who had not been present during his arrest. He recognised A.U. as the officer who had arrested and allegedly assaulted him. On the same day he was granted victim status in the pre-trial investigation.

23. On 19 and 20 March 2015 the applicant was examined by another court medical expert, who identified the same injuries and agreed with the previous assessment that they amounted to a negligible impairment to his health (see paragraph 14 above). The expert stated that the applicant had suffered at least twenty-two injuries (trauminiai poveikiai). According to the expert, the bruise on the applicant’s left ear was likely caused by a punch (one injury), the bruises on his left cheek and left palm were likely caused by falling down onto hard ground (two injuries), the bruises on his chest and the lower part of his cheek were likely caused by being hit by a hand or by fingers pressing hard into him (two injuries), and the scrapes on his wrists and forearms were likely caused by handcuffing and fingernail scratches (seventeen injuries).

24. On an unspecified date the applicant complained to the police that the official report on his arrest had been drawn up retrospectively. He alleged that his arrest had been included in police reports only after he had complained of being assaulted. An appropriate police department carried out a disciplinary inquiry and on 30 April 2015 dismissed the applicant’s complaint. The inquiry established that on the night in question the applicant had been arrested by A.U., who had drawn up an official report on that same day. It found that A.U.’s report had been the basis for opening administrative proceedings against the applicant, I.J. and Š.M. It pointed out that the applicant’s file included the original version of that report, and the files of I.J. and Š.M. included copies.

25. On 28 May 2015 the applicant refused to participate in a confrontation with A.U., stating that he felt unsafe and was worried that A.U. might pressure him to change his testimony.

26. On 20 October 2015 one of the medical experts who had previously examined the applicant (see paragraph 14 above) was questioned. She stated that, taking into account the circumstances of his arrest, the applicant could have seen the face of the police officer who had arrested him because that officer had come into close proximity with the applicant and the arrest had taken place on a well-lit part of the street. According to the expert, in such circumstances it was immaterial that the applicant was short-sighted, and it did not matter whether he had been wearing his glasses at that moment. However, in the expert’s opinion, if the applicant was lying down with his face to the ground, it would have been difficult for him to see the officer or officers who were beating him.

27. Over the course of the pre-trial investigation, the applicant lodged several complaints with the head of the Vilnius police, alleging that the investigation was protracted, that he had had pressure applied to him by various officers, and that the real aim of the investigation was to help the police officers avoid liability. All his complaints were dismissed as unfounded.

28. On 4 December 2015 the applicant was informed that the pre-trial investigation had been completed. A.U. was charged with abuse of office under Article 228 § 1 of the Criminal Code and the case was transferred to the Vilnius District Court for examination on the merits.

C. Proceedings before the Vilnius District Court

29. During the hearings before the Vilnius District Court, A.U. stated that it was common practice that all official reports were written by a junior officer, so on the night of the applicant’s arrest he had written all the reports and the relevant officers had only signed them.

30. One of the medical experts who had previously examined the applicant testified that the bruise on the applicant’s left ear had most likely been caused by a punch rather than by a hand or fingers pressing down hard, whereas the bruises on his left cheek, left palm and chest could have been caused either by pressing down hard or by punching (see paragraphs 14 and 23 above).

31. On 27 April 2016 the Vilnius District Court found A.U. guilty of abuse of office. The court held that A.U.’s statements about the circumstances of the applicant’s arrest had been inconsistent and contradictory. In particular, in his initial report he had not mentioned any resistance on the part of the applicant and had stated that the applicant had stopped running after realising that he would not be able to escape (see paragraph 7 above). However, when questioned later, A.U. had stated that he had caught the applicant and grabbed him by the sleeve, that the applicant had tried to push him, that he, together with M.B., had kicked the applicant on the legs and knocked him down (see paragraph 20 above).

32. The court noted that the applicant had testified both during the pre-trial investigation and at trial that he had seen and memorised the face of the officer who had arrested him, and he had recognised A.U. in a line-up (see paragraph 22 above). The court found no reasons to doubt the applicant. Furthermore, the applicant’s statement that he had stopped running after he had seen that it had been a police officer chasing him (see paragraphs 8, 12 and 15 above) was confirmed by A.U.’s initial report (see paragraph 7 above). The court concluded that A.U.’s actions – knocking the applicant down to the ground and handcuffing him – had been excessive and unnecessary because the applicant had stopped and had not actively resisted. There were thus no lawful grounds to arrest him in such a way.

33. A.U. was given a fine of 3,766 euros (EUR). The applicant was awarded EUR 196 in respect of pecuniary damage for his broken glasses and EUR 5,000 in respect of non-pecuniary damage.

D. Proceedings before the Vilnius Regional Court

34. A.U. lodged an appeal against his conviction. In the appeal he argued, inter alia, that the applicant’s identification of him in the line-up (see paragraph 22 above) could not be considered credible because it had occurred more than three months after the applicant’s arrest, and in the line-up A.U. had been wearing civil clothing rather than a police uniform. A.U. also submitted that during the time which had passed between the arrest and the line-up, the applicant had never been questioned about the appearance of the officer who had arrested him.

35. On 26 September 2016 the Vilnius Regional Court overturned the lower court’s decision, acquitted A.U. and left the applicant’s civil claim unexamined.

36. The court reasoned that the police officers, who on the night in question had been searching for several men suspected of drink-driving, had had the right to stop the applicant who had been in the relevant neighbourhood and had matched the description of a suspect. As the applicant had disobeyed the officers’ lawful orders, physical force had had to be used against him, which might have resulted in a negligible impairment to his health. The court found no evidence that A.U. or any of the other officers had intended to cause harm to the applicant.

37. The court observed that the reports of the court medical experts on the injuries sustained by the applicant (see paragraphs 14 and 23 above) had not precluded the possibility that those injuries might have resulted from a struggle during his arrest and have been caused by the combat wrestling methods used against him, such as knocking him down, pressing him into the ground using knees and handcuffing. The court stated that there was “no indisputable evidence that the applicant had been beaten up for no reason”.

38. In the Vilnius Regional Court’s view, the lower court’s decision had been based exclusively on the applicant’s statements. However, the applicant’s version of events was refuted by the testimony of all the police officers who had been present during his arrest and there were no grounds not to believe them. The court also observed that when questioned during the appellate proceedings, the applicant had refused to answer questions or provide any more details.

39. The Vilnius Regional Court further stated that the lower court had incorrectly referred to A.U.’s report describing the arrest of another suspect, Š.M. (see paragraph 7 above), and had erroneously understood that report to be describing the applicant’s arrest. Furthermore, the lower court had erred when assessing Š.M.’s testimony (see paragraph 19 above) – according to the Vilnius Regional Court, Š.M. could not have witnessed the applicant’s arrest from a police car because he had, in fact, been arrested after the applicant. It observed that Š.M. had not been questioned at trial because he had fled.

40. The Vilnius Regional Court also held that the lower court had not examined the circumstances in which the applicant’s glasses had been broken. It stated that the glasses could have broken when the applicant had fallen down and that their breaking could have been the cause of the bruises on the applicant’s face and ear. Nor could it be excluded that the applicant himself might have stepped on the glasses. The court noted that the applicant’s broken glasses had not been obtained and examined during the pre-trial investigation and the applicant had only provided a photograph of the glasses a week after the investigation was opened.

41. Furthermore, the court criticised the line-up during which the applicant had identified A.U. (see paragraph 22 above) – it noted that of all the officers who had been present on the night of the applicant’s arrest, only A.U. had been part of the line-up. The court therefore concluded that the line-up had not been organised in accordance with the Code of the Criminal Procedure (see paragraph 52 below). It also referred to the testimony of the court medical expert that the applicant, while lying with his face to the ground, would have had difficulties seeing who had been beating him (see paragraph 30 above).

42. The court lastly stated:

“The chamber takes a critical view of [the applicant’s] statement that after this event he no longer trusts police officers and is afraid to go outside in the dark, because the factual circumstances of the case, supported by his own testimony, demonstrate that even before the events in question [the applicant] was affected by phobias, as a result of which he did not assess the situation appropriately. That is confirmed by his actions during the incident and during the pre-trial investigation – after hearing some unknown noise, he got scared and began walking faster; after hearing someone running after him, he started running and was afraid to turn around; he did not see a police officer wearing a light-reflecting uniform in a well-lit place and did not hear his repeated lawful order “Stop, police”; when being arrested, he struggled and resisted being handcuffed. Later ... during the pre-trial investigation he was scared to participate in a confrontation with [A.U.]. It must be highlighted that, in the light of his age and education, [the applicant] should have understood that he was being ordered to stop by a police officer ... The chamber dismisses as unfounded [the applicant’s] lawyer’s arguments that [A.U.] did not shout “Stop, police” because they are refuted by the material in the case file.

It must be underlined that the first-instance court did not assess the fact that immediately after [the applicant’s] arrest, administrative proceedings were opened against him [for disobeying the lawful orders of police officers], and that only after that, at [the applicant’s] request, was a pre-trial investigation opened concerning his allegations that a police officer ... had beaten him up and had broken his glasses. Following [the applicant’s] requests and complaints, internal inquiries and pre-trial investigations were unjustifiably opened ... all [his] complaints and requests were dismissed as unfounded. In [the applicant’s] actions ... the chamber sees an attempt to turn the investigation in a direction favourable to him and thereby to avoid administrative liability ...

In the chamber’s view, there are grounds to reopen the administrative proceedings against [the applicant] ... because they were discontinued on the sole ground that [he] had been arrested by mistake. However, that does not absolve him of liability for disobeying the lawful orders of police officers ... Having reasons for disobeying a police officer’s lawful orders – such as ... fear, hostility or mistrust towards the officer, or confidence in one’s own righteousness – does not affect the legal classification of the actions but can only be taken into account when determining the penalty.

...

The chamber will not examine whether [the applicant], when claiming that [A.U.] had beaten him up and broken his glasses, acted deliberately in order to avoid administrative liability, was motivated by personal hostility towards the officer who had arrested him, or made an honest error. Those questions have to be answered in the course of a pre-trial investigation.”

E. Proceedings before the Supreme Court

43. The applicant lodged an appeal on points of law. He submitted that the Vilnius Regional Court had presumed that A.U. had had the right to use physical force against him and had not examined whether it had been necessary for a well-trained police officer to resort to physical force of such an extent – causing twenty-two injuries to various body parts (see paragraph 23 above) – in order to arrest him.

44. The applicant also submitted that the Vilnius Regional Court had chosen to blame the victim and had made “unethical” statements concerning his personality, had described him as vengeful and riddled with phobias and had interpreted his lawful use of his procedural rights as “an attempt to turn the investigation in a direction favourable to him” (see paragraph 42 above).

45. The prosecutor lodged an appeal on points of law as well. He argued, inter alia, that the Vilnius Regional Court had failed to take into account the findings by a court medical expert that the bruise on the applicant’s left ear had most likely been caused by a punch, and not as a result of a fall (see paragraph 30 above). The prosecutor also submitted that the applicant’s version of events had corresponded with A.U.’s initial report, and that, contrary to the findings of the Vilnius Regional Court (see paragraph 39 above), A.U. himself had never claimed that his report had referred to the arrest of Š.M. and not the applicant.

46. On 3 May 2017 the Supreme Court dismissed the applicant’s appeal on points of law and upheld the Vilnius Regional Court’s decision in its entirety.

47. The Supreme Court acknowledged that a person who was in a stressful situation could not be expected to give very precise testimony and that during subsequent interviews such testimony might vary slightly because the victim or witness might remember new details. It nonetheless considered that the applicant’s statements had been inconsistent with regard to certain important details, such as how many officers had arrested him, in which body parts he had been hit, which officer had looked for his glasses and had broken them and which officer had led him to a police car. Therefore, the appellate court had correctly concluded that the applicant’s statements had not been capable of refuting the other testimony given in the case.

48. The Supreme Court held that the applicant’s argument that the use of physical force against him had been unnecessary and disproportionate because he had stopped and had not resisted was not supported by the material in the case file. It also stated that the appellate court had carried out a comprehensive analysis of all the witness evidence and had reached a well-founded conclusion that A.U.’s actions when arresting the applicant –chasing him, yelling at him to stop and knocking him down to the ground when he had failed to do so – had been necessary in the circumstances.

49. The court further observed that of the twenty-two injuries sustained by the applicant, seventeen had been caused by the handcuffing, two had been caused by his falling down and three appeared to have been caused either by a blow from a hand or fist or by fingers pressing down hard (see paragraph 23 above). It upheld the appellate court’s conclusion that the court medical expert’s findings had not ruled out the possibility that those injuries might have resulted from the struggle and the combat wrestling methods used during the applicant’s arrest. The Supreme Court emphasised that there was no undisputable evidence that the injuries had been caused by hitting the applicant and not by arresting and handcuffing him.

50. The Supreme Court lastly stated that the applicant’s behaviour before, during and after his arrest was relevant for the assessment of the necessity and proportionality of the physical force used against him and thus the appellate court’s references to the applicant’s behaviour had been justified.

II. RELEVANT DOMESTIC LAW

51. For the relevant domestic law concerning the use of force by the police, valid at the material time, see Gedrimas v. Lithuania (no. 21048/12, § 49, 12 July 2016).

52. Article 191 § 2 of the Code of the Criminal Procedure provides that an individual who is asked to identify a person or an object has firstly to be questioned about the circumstances in which he or she saw or otherwise memorised the person or object in question, as well as about any marks or features by which he or she would be able to identify that person or object.

53. The Rules on the Activity of Police Patrols, adopted on 19 July 2011 by order no. 5-V-673 of the Police Commissioner General, provided at the material time that when an arrested person was delivered to a police station, an official report on the arrest had to be drawn up. That report had to indicate, inter alia, who had arrested the person in question, the reason for and the circumstances of the arrest, whether physical force had been used, and if so, the type of force and the consequences of its use (rule 60).

III. relevant international material

54. In its report to the Lithuanian Government on the visit to Lithuania from 27 November to 4 December 2012, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) stated:

“13. ... [T]he delegation did receive a few allegations from detained persons, including from juveniles, of excessive use of force (such as kicks and punches) by the police at the time of apprehension, after the person concerned had been brought under control. In this connection, the CPT was informed by the Ministry of the Interior that two police officers in 2011 and one officer in 2012 had been found guilty of having used excessive force during apprehension and had been given administrative sanctions.

The Committee trusts that the Lithuanian authorities will continue their efforts to ensure that police officers use no more force than is strictly necessary when effecting an apprehension. Once apprehended persons have been brought under control, there can be no justification for striking them.”

55. In its report to the Lithuanian Government on the visit to Lithuania from 5 to 15 September 2016, the CPT stated:

“12. ... [T]he delegation did receive a few allegations of physical ill-treatment by the police, consisting of punches, kicks and truncheon blows.

13. Virtually all of the allegations referred to excessive force having been applied upon apprehension, while the person concerned had already been brought under control. The Committee recommends that the Lithuanian authorities continue their efforts to ensure that police officers use no more force than is strictly necessary when effecting an apprehension. Once apprehended persons have been brought under control, there can be no justification for striking them.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

56. The applicant complained that he had been ill-treated by the police and that the domestic authorities’ investigation into his allegations of ill‑treatment had not been effective. He relied on Articles 1, 3, 6, 13 and 17 of the Convention. The Court, being the master of the characterisation to be given in law to the facts of a case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the applicant’s complaints fall to be examined under the substantive and procedural limbs of Article 3 of the Convention. This provision reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

57. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Alleged inhuman and degrading treatment

(a) The parties’ submissions

(i) The applicant

58. The applicant submitted that he had been subjected to inhuman and degrading treatment – he had been beaten up by a police officer without any grounds and suffered multiple injuries, and his glasses had been deliberately broken. He submitted that he had not resisted the officers arresting him but had stopped and raised his hands in the air immediately after realising that it had been the police chasing him, and he had not posed any danger. Therefore, it could not have been reasonably necessary for a well-trained police officer to inflict twenty-two injuries on the applicant, and thus the force used against him was not proportionate.

(ii) The Government

59. The Government firstly submitted that the treatment sustained by the applicant did not attain the minimum level of severity necessary to fall within the scope of Article 3 of the Convention. The use of force against the applicant had not been premeditated, it had been carried out with the lawful purpose of arresting him, and it had caused only a negligible impairment to his health, with no long-lasting consequences (see paragraph 14 above). The Government pointed out that out of the twenty-two injuries sustained by the applicant, seventeen had been caused by handcuffing (see paragraph 23 above). Furthermore, the domestic courts had not ruled out the possibility that the applicant’s injuries might have resulted from the struggle and the combat wrestling methods used during the arrest (see paragraphs 37 and 49 above). The courts had come to their conclusions after hearing from the medical expert, and the Government contended that there were no reasons to doubt those findings.

60. The Government further submitted that, as established by the domestic courts, nothing in the case file supported the applicant’s claim that he had not resisted the arrest. They argued that, when arresting the applicant, officer A.U. had had to rapidly resort to the use of physical force, as he could not have known the applicant’s intentions or whether he had had been armed. The Government emphasised that A.U. had not used physical force against the other suspects arrested that night, who had not resisted.

(b) The Court’s assessment

61. The general principles concerning the substantive limb of Article 3 of the Convention, relevant in cases involving alleged ill-treatment by law‑enforcement authorities, are summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90, ECHR 2015).

62. The Court reiterates, in particular, that in respect of a person who is deprived of his or her liberty, or, more generally, is confronted with law‑enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (ibid., § 88, and the cases cited therein).

63. In the present case, it was established by two court medical experts that during his arrest the applicant had sustained at least twenty-two injuries: a bruise on his left ear which had likely been caused by a punch with a fist (one injury), bruises on his left cheek and left palm which had likely been caused by falling down onto hard ground (two injuries), bruises on his chest and the lower part of his cheek which had likely been caused by being hit with a hand or pressed with fingers (two injuries), and scrapes on his wrists and forearms which had likely been caused by handcuffing and fingernail scratches (seventeen injuries) (see paragraphs 14 and 23 above). The findings of the medical examinations were never disputed at the domestic level.

64. The Government argued that all the aforementioned injuries had resulted from the police officers’ lawful actions when arresting the applicant, who had been resisting the arrest (see the statements given by the officers in the domestic proceedings in paragraphs 7, 18 and 20 above and the judgments of the Vilnius Regional Court and the Supreme Court in paragraphs 37 and 49 above). The applicant, however, denied having resisted the officers (see paragraphs 8, 12 and 15 above).

65. The Court considers that in the circumstances of the present case it is not required to rule on whether the applicant resisted his arrest. Even were the Court to accept that he did resist and, as a result, the police officers had had to knock him down, press him to the ground and handcuff him, thereby causing the bruises on his arms, chest and left cheek, that would not explain one other injury – namely, the bruise on the applicant’s left ear.

66. According to one of the medical experts who examined the applicant, the bruise on his left ear was most likely caused by a punch and not by a hand or fingers pressing down hard (see paragraph 30 above). In all of his statements given before the domestic authorities, the applicant consistently claimed that he had been punched in the face by the police officer when he had already been lying on the ground (see paragraphs 8, 12 and 15 above). None of the police officers questioned during the domestic proceedings were explicitly asked about that particular injury and nor did they offer any alternative explanations. Although the Vilnius Regional Court stated that the injuries on the applicant’s face could have resulted from his glasses having broken when he had fallen to the ground (see paragraph 40 above), in the Court’s view, that hypothesis was not supported by any evidence, including the conclusions of the medical experts, who never established that any of the applicant’s injuries might have been caused by breaking glass (see paragraphs 14, 23 and 30 above, and see, mutatis mutandis, Gablishvili and Others v. Georgia, no. 7088/11, § 57, 21 February 2019).

67. In this connection, the Court reiterates that 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. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Bouyid, cited above, § 83, and the cases cited therein).

68. In the present case, neither the authorities in the domestic proceedings, nor the Government in their submissions before the Court provided a satisfactory and convincing explanation for the bruise on the applicant’s left ear. In view of the failure of the Government to cast doubt on the account of events given by the applicant, the Court considers it established that during his arrest the applicant was punched in the face, and that the punch was inflicted in the circumstances described by him – that is to say, after he had already been knocked down to the ground by the police (see, mutatis mutandis, Adnaralov v. Ukraine, no. 10493/12, § 45, 27 November 2014).

69. The Court has previously held that a blow to an individual’s head during his arrest, which had caused swelling and a bruise on his forehead, was, “particularly because of its location”, sufficiently serious to raise an issue under Article 3 of the Convention (see Samüt Karabulut v. Turkey, no. 16999/04, §§ 8 and 41, 27 January 2009). It has also held that a slap to the face, inflicted by a law-enforcement officer, even when unpremeditated and devoid of any serious or long-term effect on the person receiving it, may be perceived as humiliating by that person and thus amount to degrading treatment within the meaning of Article 3 (see Bouyid, cited above, §§ 105-06 and 112).

70. In the present case, the Court observes that none of the police officers questioned in the domestic proceedings argued that it had been necessary to punch the applicant in the face in order to subdue him, or for any other reason. It therefore does not find it established that the punch was made strictly necessary by the applicant’s own conduct (see the recommendations of the CPT in paragraphs 54 and 55 above). Accordingly, in the Court’s view, after the applicant was knocked down and pressed to the ground by a police officer, even a single punch in the face would have been able to arouse in him feelings of arbitrary treatment, injustice and powerlessness (see Bouyid, cited above, § 106, and Csonka v. Hungary [Committee], no. 48455/14, § 30, 16 April 2019). In such circumstances, the Court is unable to accept the Government’s argument that the treatment sustained by the applicant did not attain the threshold of severity under Article 3 of the Convention.

71. The foregoing considerations are sufficient to enable the Court to conclude that, irrespective of the relatively minor bodily harm sustained by the applicant, a punch to the face by a police officer after the applicant had already been knocked down to the ground diminished the applicant’s dignity and amounted to inhuman and degrading treatment (see Samesov v. Russia, no. 57269/14, § 62, 20 November 2018).

72. Accordingly, there has been a violation of Article 3 of the Convention under its substantive head.

2. Alleged lack of an effective investigation

(a) The parties’ submissions

(i) The applicant

73. The applicant submitted that, in accordance with the Court’s case-law, in cases concerning the use of force by police officers, there had to be an assessment of whether their actions had been strictly necessary and proportionate in the circumstances (see Yusiv v. Lithuania, no. 55894/13, § 61, 4 October 2016). However, the courts which examined the case against A.U. disregarded his admission that he had beaten up the applicant (see paragraph 20 above), as well as other evidence in the case. In the applicant’s view, the judgments of the Vilnius Regional Court and the Supreme Court reflected the judges’ belief that the use of force by a police officer was always justified, by virtue of him being a police officer.

74. The applicant further submitted that the Vilnius Regional Court had been biased and had made insulting statements of a personal nature about him, implying that he suffered from various psychological problems (see paragraph 42 above), which had been unrelated to the case and not based on any evidence.

(ii) The Government

75. The Government submitted that the investigation had identified all the officers who had been involved in the applicant’s arrest and had determined the actions taken by each of them. The authorities carried out all the necessary investigative measures in order to establish the factual circumstances of the case – they had questioned multiple witnesses, organised a line-up, carried out a medical examination, and obtained other relevant information. The Government stated that the applicant had not lodged any requests for additional investigative measures to be carried out.

76. The Government also submitted that the applicant himself had provided inconsistent testimony about the essential circumstances of his arrest, and as a result, his allegations could not be considered credible. To the contrary, the statements of officer A.U. had essentially been consistent, and the domestic courts had had no reason to doubt them.

(b) The Court’s assessment

77. The general principles concerning the procedural limb of Article 3 of the Convention are summarised in Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, §§ 314-26, ECHR 2014 (extracts)).

78. Turning to the circumstances of the present case, the Court firstly observes that the pre-trial investigation into the alleged ill-treatment of the applicant was opened promptly after he lodged a complaint (see paragraph 16 above). Furthermore, having examined the material submitted to it by the parties, the Court is satisfied that the persons responsible for carrying out the investigation enjoyed practical independence from those targeted by it and that the applicant was able to participate in it effectively. Nor can the total length of the domestic proceedings – less than three years between the opening of the investigation and the final judgment of the Supreme Court (see paragraphs 16 and 46 above) – be considered excessive.

79. Therefore, the main question in the present case is whether the investigation was thorough – that is to say, whether it was capable of leading to the identification and punishment of those responsible (ibid., § 321). In this connection, the Court reiterates that although the procedural obligation under Article 3 of the Convention is not an obligation of result, but of means, any deficiency in the investigation which undermines its ability to establish the circumstances of the case or the person responsible will risk falling foul of the required standard of effectiveness (ibid., § 322).

80. The task of the domestic authorities in the present case was to elucidate the circumstances of the applicant’s arrest – in particular, whether he had resisted the officers and what actions those officers had taken. As required by the domestic law, immediately after the arrest all the officers involved submitted official reports describing the events in question (see paragraph 7 above). The domestic law provided that when an arrested person was delivered to a police station, an official report on the arrest had to indicate, inter alia, who had arrested that person, the reason for and the circumstances of the arrest, whether physical force had been used, and if so, the type of force and the consequences of its use (see paragraph 53 above).

81. However, the Court cannot fail to notice that none of the reports drawn up by police officers on the night of the applicant’s arrest accurately described the circumstances of that arrest. It turns first and foremost to the report submitted by A.U., the officer who arrested the applicant. His report described the arrest of three individuals: I.J., A.S. and an unnamed young man (see paragraph 7 above). It has not been explained why A.U. provided the identities of only the first two arrested individuals and not the third, since it transpires from the reports of the other officers that all the individuals arrested that night, including the applicant, had been identified (see paragraph 7 above).

82. In any event, there is material in the Court’s possession indicating that the third man mentioned in A.U.’s report must have been the applicant. In particular, that report served as the basis for opening administrative proceedings against the applicant, and the original version was included in the applicant’s file (see paragraph 24 above). However, the Vilnius Regional Court held that A.U.’s report had described the arrest of another individual, Š.M. (see paragraph 39 above). Although in the proceedings before the Supreme Court the prosecutor argued that A.U. himself had never claimed that his report had referred to the arrest of Š.M. (see paragraph 45 above), the Supreme Court upheld the appellate court’s judgment. At no stage of the domestic proceedings was A.U. explicitly asked to clarify whose arrest he had described in his report.

83. In this connection, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 190, ECHR 2006-V, and Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015). It considers that in the present case it does not have sufficient grounds to find that the Vilnius Regional Court and the Supreme Court, by holding that A.U.’s report described the arrest of Š.M. and not the applicant, made a manifest error of assessment. This, in turn, leads the Court to conclude that A.U., who acknowledged that he had arrested the applicant, kicked him in the legs, knocked him down, pressed him to the ground with his knees and pulled his hands from under his body (see paragraphs 18 and 20 above), did not make any mention of any of those circumstances in his official report drawn up on the night of the arrest. In the Court’s view, such a serious omission was not only inexcusable on principle but also undermined the ability of the investigation to credibly establish the circumstances of the applicant’s arrest (see Konyanev v. Russia [Committee], no. 9759/09, § 55, 26 March 2019, and the cases cited therein).

84. The Court also notes that the report of officer E.Z., who had taken the applicant to the police station, indicated that force had been used against Š.M. but made no mention of any force or special measures having been used against the applicant (see paragraph 7 above), and no reasons for this omission were provided during the domestic proceedings.

85. The Court further points out that although each police officer submitted a report under his own name and signed it, during the hearing before the first-instance court, A.U. stated that it was common practice for all official reports to be written by a junior officer, and that on the night in question it had been A.U. who had written all the reports, whereas the other officers had only signed them (see paragraph 29 above). In the Court’s view, the fact that all the reports were drawn up by a single officer seriously undermined their credibility (see, mutatis mutandis, Gedrimas v. Lithuania, no. 21048/12, § 82, 12 July 2016, and the cases cited therein) – especially having regard of the fact that that same officer was subsequently charged with the ill-treatment of the applicant. However, that issue was never explicitly addressed by any of the domestic courts and the credibility of the officers – unlike that of the applicant – was never called into question by the courts which dismissed the applicant’s complaint (see Gedrimas, § 82, and Yusiv, § 73, both cited above).

86. The Court therefore considers that the absence of an accurate and credible record of the applicant’s arrest made it extremely difficult from the very beginning for all the circumstances of that arrest to be established.

87. Those were not, however, the only deficiencies of the investigation. The Court has already found that the investigation failed to examine the origin of the bruise on the applicant’s left ear and to assess the necessity and proportionality of the use of force which had caused that injury (see paragraphs 66, 68 and 70 above).

88. It further observes that on the night of his arrest the applicant complained that his glasses had been deliberately broken by an officer (see paragraph 8 above). It reiterates that, according to the Court’s well‑established case-law, the authorities must take all reasonable steps available to them to secure the evidence concerning the incident at issue (see Hentschel and Stark v. Germany, no. 47274/15, § 94, 9 November 2017, and the case-law cited therein). However, there is no indication that any effort was made to secure any evidence relating to the glasses, either by going back to the location of the arrest to look for them, or at least by warning the applicant not to remove his glasses from that location until the authorities had had the opportunity to examine them. The failure of the authorities to promptly secure evidence concerning the glasses precluded that part of his complaint from being objectively verified and led to its dismissal by the courts in a summary fashion (see paragraph 40 above).

89. The Court further reiterates that in so far as an investigation leads to charges being brought before the national courts, the positive obligations under Article 3 of the Convention extend to the trial stage of the proceedings. In such cases the proceedings as a whole, including the trial stage, must meet the requirements of the prohibition enshrined in Article 3 (see N.D. v. Slovenia, no. 16605/09, § 58, 15 January 2015, and the cases cited therein).

90. In the present case, the applicant complained that the Vilnius Regional Court had made insulting and unethical statements about his personality, implying that he was vengeful and suffered from various psychological problems (see paragraphs 44 and 74 above). Indeed, that court stated that “even before the events in question, [the applicant had been] affected by phobias, as a result of which he [had] not assess[ed] the situation appropriately”; that the complaints and requests lodged by the applicant during the proceedings demonstrated “an attempt to turn the investigation in a direction favourable to him and thereby avoid administrative liability”; and that it did not wish to “examine whether [the applicant], when claiming that [A.U.] had beaten him up and broken his glasses, [had] acted deliberately in order to avoid administrative liability, [had been] motivated by personal hostility towards the officer who had arrested him, or [had] made an honest error” (see paragraph 42 above). That judgment was upheld by the Supreme Court in its entirety and the applicant’s arguments concerning the wording employed by the Vilnius Regional Court were dismissed (see paragraph 50 above).

91. The Court emphasises that in the proceedings in question the domestic courts were called upon to examine whether A.U. had abused his office by using excessive force against the applicant, and not any allegations against the applicant. It considers it unacceptable that the aforementioned judgment appears to have proceeded on the assumption that the applicant made his complaint against the police in bad faith, seeking to avoid his own administrative liability. The Court also fails to see how speculations about the applicant’s phobias or personal hostility towards the police officer, which had not been assessed at any point during the proceedings, were relevant to the courts’ procedural obligation under Article 3 of the Convention to establish the circumstances of the case (see, mutatis mutandis, Thuo v. Cyprus, no. 3869/07, § 139, 4 April 2017, and D.M.D. v. Romania, no. 23022/13, §§ 49 and 52, 3 October 2017).

92. In the light of the foregoing, the Court concludes that the investigation into the applicant’s allegations concerning his ill-treatment at the hands of police officers fell short of the required standard of effectiveness under Article 3 of the Convention. There has accordingly been a violation of that provision under its procedural head.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

93. 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

94. The applicant asked the Court to make an award in respect of non-pecuniary damage in accordance with its case-law.

95. The Government submitted that any such award should be made on an equitable basis and should not exceed the amounts awarded in similar cases against Lithuania.

96. The Court observes that it has previously made awards in respect of non-pecuniary damage in cases where the applicants asked for such an award to be made but left the precise amount at the Court’s discretion (see Nagmetov v. Russia [GC], no. 35589/08, § 72, 30 March 2017, and the cases cited therein, and Ābele v. Latvia, nos. 60429/12 and 72760/12, §§ 85 and 86, 5 October 2017). It considers that the circumstances of the present case warrant making an award in respect of non-pecuniary damage.

97. Having regard of the violations found in the present case of the substantive and procedural limbs of Article 3 of the Convention and making its award on an equitable basis, the Court awards the applicant 15,000 euros (EUR) under this head.

B. Costs and expenses

98. The applicant also claimed EUR 1,000 for the costs and expenses incurred before the domestic courts. He provided a copy of an invoice showing that his lawyer had charged him that amount for the preparation of an appeal on points of law (see paragraphs 43 and 44 above).

99. The Government submitted that the applicant had not provided any proof that he had actually paid that amount.

100. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 1,000 for costs and expenses in the domestic proceedings.

C. Default interest

101. 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 under its substantive head;

3. Holds that there has been a violation of Article 3 of the Convention under its procedural head;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts:

(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 15 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Valeriu Griţco
Deputy Registrar President