CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 mars 2003

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Costa , President ,   Mr   A.B. Baka ,   Mr   L. Loucaides ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   W. Thomassen ,   Mr   M. Ugrekhelidze, judges ,   and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged on 21 December 1999, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr   Ágoston Kmetty, is a Hungarian national, who was born in 1946 and lives in Budapest. He is represented before the Court by Mr   J.   Somogyi, a lawyer practising in Budapest. The respondent Government are represented by Mr   L.   Höltzl, Agent. The facts of the case, as submitted by the parties, may be summarised as follows. A.   Particular circumstances of the case The applicant is a merchant with his headquarters at the Budapest Market Hall. On 22 December 1998 the police arrived at the Market Hall in response to a bomb alert and required everyone to evacuate the building so that it could be searched. The applicant and several other persons refused to comply with this instruction. Following a dispute from 4 p.m. until 5.45 p.m. between certain merchants, including the applicant, and the police, the officer in charge decided to detain the applicant, deemed responsible for the general disobedience, at the Budapest IX District Police Department. The Government state that when two police officers grabbed him by his arms and started to hustle him out, the applicant threw himself down on the ground. The applicant states that he did not resist the police officers and that he was grabbed and kicked off his legs without prior notice. Having immobilised the applicant, two police officers dragged him through the Market Hall to the exit. Outside the building he was handcuffed and forced into a police car and driven to the Police Department. The applicant states that, while in the car, he was hit by a police officer repeatedly. On their arrival at the Police Department, police officers lifted the applicant out of their car, hauling him up by the handcuffs on his wrists. The Government state that since the applicant had suffered some bruises on his wrist and face, an ambulance was called to examine him. The applicant did not report any ill-treatment by the police to the ambulance doctor. The applicant states that at the police station he was taken to the basement where at least four police officers repeatedly beat and kicked him. One of them stepped on his belly with such violence that it caused bowel movements. Subsequently he was placed in a cell for about three hours during which time a police lieutenant entered, shouted at him, abused him verbally and spat in his face. Eventually two police officers fetched the applicant and escorted him to the exit. On 22 and 23 December 1998 the applicant was examined at the National Institute of Traumatology and the Central Institute of Stomatology. It was established that he had suffered bruises on both wrists, on the left of the belly wall, on his right hand and on the right side of his chest. As to his dental injuries, traces of impact were found around his upper incisors and part of his bridgework was loose due to trauma. On 23 December 1998 the applicant laid charges of ill-treatment and unlawful detention against the police. On the same day the Directorate of the Market Hall banned the applicant from the premises for a period of three months, on account of his “scandalous behaviour” on 22 December 1998. On 11 March 1999 the Budapest Administrative Office informed the applicant, in reply to his complaint about the ban, that the Directorate’s measure had been in compliance with the relevant Market Regulations. Being within the margin of appreciation of the owner of the Market Hall – i.e. , the City of Budapest represented by the Directorate – the measure had not been subject to the rules of the Code of Administrative Procedure and was not therefore susceptible to any legal remedies. This letter was served on the applicant on 18 March 1999. In the course of the criminal proceedings instituted on the applicant’s request, the Budapest Investigation Office heard the applicant, his wife and son and five other witnesses who had been present in the Market Hall at the time of the incident. These testimonies confirmed that the applicant had been dragged through the Market Hall but they remained inconclusive as to whether the applicant had been kicked off his feet or had thrown himself on the ground in resistance. The Investigation Office also heard a police officer and the directors of the Market Hall. The applicant alleges that in the course of his interrogation he identified two of the police officers who had assaulted him and he selected their photographs from several shown to him. However, the photograph of a third officer allegedly involved was not among those presented to him. The Government state that the prosecutor in charge obtained and watched a video recording shot by a television cameraman outside the Market Hall at the time of the incident but found nothing relevant. According to a medical expert opinion of 24 March 1999 obtained by the Investigation Office, the applicant had signs of trauma on his upper incisors, both wrists and the belly wall, the origin of which could have been either the physical force needed to immobilise him or punches. Moreover, the expert stated that the applicant’s allegations as to the severity of his alleged ill-treatment were implausible. On 27 July 1999 the Investigation Office discontinued the proceedings concerning the applicant’s complaints against the police. Relying on the above medical report, the Investigation Office concluded that the applicant’s allegations of ill-treatment were impossible to prove, whereas his police custody had been justified on account of his resistance to lawful police measures, pursuant to Section 19 of Act no. 34 of 1994 on the Police (“the 1994 Police Act”). On 8 August 1999 the applicant complained to the Budapest Public Prosecutor’s Office against the discontinuation order. On 24 September 1999 the Public Prosecutor’s Office dismissed the applicant’s complaint. It noted that according to the medical documents in the case – and contrary to his statement of complaint – the applicant’s injuries had healed within eight days. Furthermore, since his allegations were impossible to reconcile with some witness testimonies, the Public Prosecutor’s Office saw no reason to depart from the conclusions of the Investigation Office. B.   Relevant domestic law and practice According to Article 349 of the Civil Code, the official liability of the State Administration may be established only if the relevant ordinary remedies have been exhausted or would not have been fit to prevent damage. According to Section 98 of Act no. 1 of 1968 on Regulatory Offences, as in force in the material period, a person who deliberately impedes the lawful procedure of an official commits a regulatory offence. Section 19 of the 1994 Police Act provides as follows: “(1) Everyone shall submit to a police measure, aimed at the implementation of the law [...], and obey the instructions given by a police officer. In the course of police action, the lawfulness thereof shall not be called into question unless its unlawfulness is manifest. (2) In the case of resistance against a lawful measure taken by a police officer, the measures and means of coercion set forth in this Act may be applicable.” Section 33 of the 1994 Police Act in its relevant part provides as follows: “(2) In the interests of public security, a police officer may bring before the competent authority a person ... f) who carries on with a regulatory offence despite a call to discontinue doing so ... (3) The Police shall restrict personal freedom to bring a person before the authority only for the necessary period of time but not exceeding 8 hours...” COMPLAINTS 1.   The applicant complains under Article 3 of the Convention of ill-treatment by the police and, under Articles 6 and 13, that the investigations of his complaints were inadequate. 2.   The applicant also complains under Article 5 of the Convention that his detention at the Budapest IX District Police Department was unjustified. 3.   Lastly, the applicant complains under Articles 6 and 13 of the Convention that no remedy was available to him to challenge the measure banning him from the Market Hall. THE LAW 1.   The applicant complains that in the course of his committal to the Police Department he was abused and ill-treated by police officers and that the investigations into his related complaints were inadequate. The Court considers that this complaint falls to be examined under Article 3 of the Convention which provides:   “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” a.   The Government maintain that the applicant failed to exhaust the domestic remedies available to him. They submit in particular that the applicant did not file an official liability action under Section 349 of the Civil Code. The applicant contends that Article   35 §   1 does not require him to have submitted a civil action for damages after having sought the prosecution of the police officers concerned. Moreover, a civil claim for damages could not have produced an effective and timely result. Article 35 § 1 of the Convention, in its relevant part, provides: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, e.g. , Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275–76, §§ 51–52). The Court reiterates that in respect of alleged ill-treatment contrary to Article 3 of the Convention raising criminal charges against the officials concerned, or filing a civil action for compensation, are effective remedies to be exhausted pursuant to Article 35 § 1 (see William John McQuiston and others v. the United Kingdom , no.   11208/84, Commission decision of 4   March 1986, Decisions and Reports (DR) 46, p. 182; M. v. France , no.   10078/82, Commission decision of 13 December 1984, DR 41, p. 103; X. v. Federal Republic of Germany , no. 5964/72, Commission decision of 29 September 1975, DR 3, p. 57). In the present case, the Court notes that the applicant requested to have criminal investigations opened against the police officers concerned and subsequently filed a complaint about the prosecution authorities’ decision to discontinue those proceedings, insisting that a full examination of his allegations of ill-treatment be carried out. In these circumstances the Court considers that, having exhausted all the possibilities available to him within the criminal justice system, the applicant was not required, in the absence of a criminal prosecution in connection with his complaints, to embark on another attempt to obtain redress by bringing a civil action for damages (see Assenov and others v. Bulgaria , judgment of 28 October 1998, Reports 1998-VIII, p. 3286, § 86). It follows that the complaint cannot be rejected for non-exhaustion of domestic remedies. b.   As to the substance of the complaints, the Government submit that no conclusive evidence supports the applicant’s allegations of ill-treatment by the police. In particular, they point out that, according to the medical expert opinion of 24 March 1999, the applicant’s injuries could be caused by force applied to surmount his resistance to a lawful police measure, rather than by ill-treatment, and his allegations as to the severity of his alleged ill-treatment were implausible. As to the adequacy of the investigations of the applicant’s complaints, the Government emphasise that a proper examination was carried out, which involved several witnesses and a medical expert, and that it was discontinued on account of inconclusive evidence. In sum, the Government maintain that neither the substantive nor the procedural requirements of Article 3 of the Convention were breached. The applicant submits that several persons witnessed the incident at the Market Hall and that the injuries which he subsequently suffered in the course of police custody were recorded in a medical report. He emphasises that the expert opinion did not exclude the veracity of his allegations. Concerning the adequacy of the investigations, the applicant points out that the criminal proceedings against the suspected perpetrators were discontinued despite the fact that he had identified two of the police officers who allegedly assaulted him and he had selected their photographs from several which were shown to him; the photograph of a third suspected officer was not amongst these. In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. 2.   The applicant also complains under Article 5 of the Convention that his detention at the Budapest IX District Police Department was unjustified. Article 5 § 1 of the Convention, in its relevant parts, provides: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...   (b)     the lawful arrest or detention of a person ... in order to secure the fulfilment of any obligation prescribed by law; ...” The Court observes that the applicant, by refusing to obey police instructions given in the context of a bomb alert to evacuate the Market Hall, hindered the police in carrying out the legitimate task of searching the building. To overcome disobedience, the police were forced to take him into custody, pursuant to Sections 19 and 33 §   2   f) of the 1994 Police Act. The Court is therefore satisfied that, in the absence of any appearance of arbitrariness, this measure was taken in accordance with a procedure prescribed by law and thus justified under Article 5 § 1 (b) of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention. 3.   Lastly, the applicant complains under Articles 6 and 13 of the Convention that no remedy was available to him to challenge the measure banning him from the Market Hall. The Court observes that the final decision in these proceedings was given, at the latest, by the Budapest Administrative Office on 11   March   1999, whereas the application was only lodged on 21   December   1999. It follows that this part of the application was introduced outside the six-month time-limit prescribed by Article 35 § 1 and must be rejected under Article 35 § 4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint that he suffered ill-treatment by the police; Declares inadmissible the remainder of the application.   S. Dollé   J.-P. Costa   Registrar   President