CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 13 juin 2019

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POLAND   (Application no. 76505/14)                           JUDGMENT         STRASBOURG   13 June 2019       This judgment is final but it may be subject to editorial revision. In the case of Bednarz v. Poland, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Pere Pastor Vilanova, President,   Krzysztof Wojtyczek,   Pauliine Koskelo, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 21 May 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 76505/14) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Konrad Tomasz Bednarz (“the applicant”), on 28 November 2014. 2.     The applicant was represented by Mr K. Bednarz, a lawyer practising in Stalowa Wola. The Polish Government (“the Government”) were represented by their Agent, Mrs J.   Chrzanowska, and subsequently by Mr   J.   Sobczak, of the Ministry of Foreign Affairs. 3.     The applicant complained under Article 3 of the Convention of ill ‑ treatment during his arrest and the lack of an effective investigation in that respect. 4.     On 17 March 2016 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1990 and lives in Stalowa Wola. A.     The applicant’s arrest and medical treatment 6.     On the night of 23 June 2013 the applicant was drinking alcohol with a group of friends in a public square in Stalowa Wola. At around 11 p.m. a police patrol arrived, reminded them to keep quiet during night hours, checked their documents and ordered them to disperse. Part of the group, including the applicant, moved on to a different spot. Subsequently, following a message received at around 11.50 p.m., two police officers, K.P. and D.Z., found those members of the group and proceeded to arrest them. The officers used truncheons in order to put the applicant and his six friends into a police car. 7.     According to the applicant, he was also punched in the face by one of the police officers during the arrest. 8.     According to the Government, this allegation was not confirmed during the investigation. A doctor who examined the applicant in Stalowa Wola District Hospital noted that he had no facial injuries. 9.     The arrested persons were taken to the Stalowa Wola district police station, where they underwent breathalyser tests. With respect to the applicant, the test revealed an alcohol level of 0.76 mg/l in his breath. 10.     According to the applicant, at the Stalowa Wola district police station he asked to go to the toilet, but instead was taken to a room without closed-circuit television (CCTV). Once there, he was thrown to the ground. One of the officers kicked him on his left knee. He was subsequently beaten by another officer with a truncheon. When leaving the room, one of the officers slammed the door in the applicant’s face. As a result, the applicant injured his nose, broke his tooth and damaged his dental braces. 11.     According to the Government, the applicant was taken to a separate room without CCTV in order for a body search to be carried out. However, he continued to resist, and was aggressive and vulgar towards the officers. The allegations that he had been kicked on his knee and had had the door slammed in his face were not confirmed in the course of the subsequent investigation. 12.     Subsequently, the applicant was examined by a doctor, who found no reasons why he could not be detained. 13.     On 25 June 2013 the applicant was seen by a dentist, who confirmed that he had a broken tooth and damaged dental braces. 14.     On the night of 26 June 2013 the applicant was admitted to Stalowa Wola District Hospital. He was released on the same day. The doctor noted that the applicant had bruising on his left thigh and had twisted his left knee. B.     Criminal proceedings against the applicant 15.     On 24 June 2013 the applicant and two of his friends, K.W. and J.B., were charged with resisting lawful arrest and insulting police officers in the performance of their duty. On 22 November 2013 an act of indictment was lodged with the Stalowa Wola District Court. 16.     On 28 May 2014 the Stalowa Wola District Court gave its judgment. The applicant was convicted of insulting and using violence against the two police officers, K.P and D.Z. 17.     The judgment was upheld by the Tarnobrzeg Regional Court on 28   October 2014. C.     Investigation into the applicant’s allegations of ill ‑ treatment 18.     On 27 June 2013 the Stalowa Wola District Prosecutor severed complaints against the two police officers who had arrested the applicant and J.B. from the proceedings described in paragraphs 15-17 above. 19.     On 30 July 2013 the Mielec District Prosecutor instituted an investigation into the police officers’ alleged abuse of power on the night of 23-24   June 2013. 20.     During the proceedings the prosecutor heard evidence from witnesses (people who had been involved in the incident, police officers and medical staff) and also obtained expert reports. 21.     On 8 October 2013 an expert surgeon prepared a forensic medical report on the basis of medical documents in the applicant’s file. The expert referred to a certificate from the dentist dated 25 June 2013, the applicant’s medical files from Stalowa Wola District Hospital and two medical certificates of 24 June 2013. He confirmed that the applicant had experienced bruising and swelling to his left knee. While, in his opinion, the injury had occurred earlier than the applicant had alleged, there was no medical documentation in this respect. In addition, the applicant had had bruises on his lower legs and thighs, bruising and abrasions on his nose, a broken tooth and damaged dental braces. As to the origins of these injuries, the expert confirmed that the bruising had been typical of the kind caused by truncheons, while the knee injury could have occurred when the applicant had resisted getting into the police car or going to another room. 22.     On 31   October   2013 a visual technology expert prepared a report. In that report, he confirmed in particular that CCTV footage demonstrated that the applicant had begun to limp after he had left the room without CCTV. There was no footage of him limping before entering the room. 23.     On 12 November 2013 the prosecutor questioned Dr M.B., one of the doctors who had treated the applicant in Stalowa Wola District Hospital on 26 June 2013. The doctor stated that he had diagnosed the applicant with chronic instability of the knee. In his view, the instability had not been acute, and could have occurred earlier due to an injury or illness. The joint had not been swollen and there had been no accumulation of fluid. 24.     On 12 December 2013 the prosecutor questioned Dr H.L., another doctor who had treated the applicant in Stalowa Wola District Hospital on 26   June 2013. The doctor stated that the applicant had had several bruises on his thighs and chest. He had not had any visible injuries on his face or hands. In his view, the applicant had been simulating some of the symptoms, as they had not been confirmed by a medical examination. 25.     Meanwhile, on 21 November 2013 a formal face ‑ to ‑ face confrontation had been held between the applicant and the two police officers, K.P and D.Z. 26.     On 23 December 2013 the Mielec District Prosecutor discontinued the proceedings regarding the applicant’s allegations of ill-treatment. The prosecutor established that, during the police intervention on the night of 23   June 2013, the applicant and his friends had behaved aggressively, insulted the officers and resisted arrest. Since the applicant had refused to get into the police car, the officers had warned him that they would use direct restraint measures ( środki przymusu bezpośredniego ), and eventually they had hit him with truncheons on his lower legs, thighs and forearms. During the intervention the police had arrested seven people, including the applicant. At the police station he had undergone a breathalyser test, which had shown an alcohol level of 0.76 mg/l in his breath. Subsequently, the applicant had been taken to another room in order to undergo a body search. He had resisted the officers while leaving his cell and had continued to behave aggressively towards them. Eventually, four of the people who had been arrested had been released, while the applicant, K.W. and J.B. had been detained on charges of resisting lawful arrest and insulting police officers. 27.     The prosecutor also established that on 26 June 2013 the applicant had been admitted to Stalowa Wola District Hospital, where he had complained of bruising to his thigh and a knee sprain. He had been discharged on the following day. The doctor on duty had diagnosed him with chronic instability of the knee, with no swelling or fluid accumulation in the joint. 28.     The prosecutor further referred to the expert’s report of 8   October 2013 (see paragraph 21 above). 29.     The prosecutor acknowledged that the police officers had used force against the applicant as he had been aggressive during the arrest, but he had not been beaten by the police officers whilst at Stalowa Wola district police station. The prosecutor was of the view that the evidence given by the applicant’s friends was not consistent. On the other hand the officers had clearly and in detail described the course of the events and their statements were coherent and logical. He concluded that the use of force against the applicant had been necessary, in view of his aggressive behaviour. 30.     The applicant appealed, alleging that the prosecution service had failed to correctly establish the course of events. He submitted that the statements of five witnesses, who had all confirmed that he and his friends had not resisted arrest on 23   June   2013, had been ignored. He further relied on the report prepared by the visual technology expert who had analysed the CCTV footage and noted that his injury could have occurred in the room without CCTV (while he had been searched). Lastly, he stated that the discrepancies between the versions presented by the officers and the participants had not been clarified. 31.     On 3 July 2014 the Stalowa Wola District Court upheld the prosecutor’s decision. The court held that the statements of the applicant’s friends who had been involved in the incident were not coherent. Although they all agreed that the applicant had been beaten by police officers in the car and at the police station, they had not been able to give a consistent version of events. Furthermore, none of the witnesses had seen the incident at the police station. They had only heard noises and noticed the applicant’s bruises and that he had begun to limp. On the other hand, the court considered that the evidence given by the police officers was logical, coherent and consistent. Consequently, the court agreed with the prosecutor that the applicant’s aggressive and provocative behaviour during his arrest had justified the use of force by the police. Furthermore, there were no indications that the police officers had abused their powers or used disproportionate force against the applicant. In so far as the applicant had referred to the visual technology expert’s report, the court noted that, even if the applicant had begun limping after leaving the room where the body search had taken place, the possibility that his knee injury had occurred earlier on and that he had only begun to feel pain in that leg at a later stage could not be excluded. Also, the medical opinion had not been explicit in this respect, since the applicant suffered from chronic instability of the knee, and the swelling might have resulted from the resistance he had demonstrated while getting into the police car. II.     RELEVANT DOMESTIC LAW AND PRACTICE 32.     The relevant part of section 16 of the Police Act of 6   April 1990 ( Ustawa o Policji ) reads: “1.     If a lawful order given by a police authority or police officer has not been complied with, a police officer may apply the following coercive measures: 1)     physical, technical and chemical means to restrain or escort persons or stop vehicles; 2)     truncheons; ... 2.     Police officers may apply only such coercive measures as correspond to the needs exigencies of a given situation and are necessary to ensure that their orders are obeyed.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 33.     The applicant complained of ill-treatment during his arrest and of the absence of an effective investigation in that respect. 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 34.     The Court notes that the application 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.     The parties’ submissions (a)     The applicant 35.     The applicant maintained that on 23-24 June 2013 he had been beaten by police officers at the Stalowa Wola district police station. As a result, he had sustained bruising to his forearm, thighs and right calf, and facial injuries (abrasions, a broken tooth and damaged dental braces). 36.     The applicant further submitted that during the investigation the prosecuting authorities and the domestic court had unconditionally accepted the police officers’ statements. In his view, the investigation had been conducted only superficially, had not been objective and had been terminated by a decision which had not been based on a solid analysis of the facts. 37.     In particular, the applicant pointed to the fact that the statements given by the police officers were formulated identically. The officers had specified the exact addresses of the seven arrested persons, as well as their eleven-digit national identification numbers (PESEL). Those statements had the appearance of police memos which had been rewritten. In the applicant’s view, this had been done in order to present a consistent, common version of events.   The applicant also stated that the essential details regarding his being beaten in the police car and at the station had been confirmed by all witnesses. (b)     The Government 38.     The Government submitted that the use of force by the police officers on 23-24 June 2013 had been adequate and proportionate in the circumstances of the present case. The applicant had resisted the legitimate actions of the police officers. Therefore, the officers, having warned the applicant about such a possibility, had used coercive measures against him. 39.     In relation to the applicant’s injuries, the Government argued that those had not been as serious as the applicant had maintained in the domestic proceedings and the proceedings before the Court. In particular, as regards the knee injury, referring to the statement given by Dr M.B. on 12   November 2013 (see, paragraph 23 above), the Government noted that the applicant had suffered from chronic instability of the knee. In their view the injury could have occurred when he had resisted the officers when they had tried to take him to another room for a body search. 40.     The Government maintained that the investigation had been conducted by an independent and impartial prosecutor who had promptly undertaken all necessary activities relating to evidence and had made a reasonable assessment of the circumstances of the case. In particular, numerous witnesses had been heard, including the police officers, the applicant’s friends who had been involved in the events, and the doctors who had examined the applicant. Moreover, the prosecutor had obtained a medical report and ordered a CCTV analysis by a forensic research institute. 41.     The Government concluded that the investigation had been carried out without unreasonable delay.   In their view, the prosecutor’s decision to discontinue the investigation could not be regarded as arbitrary or biased. After hearing all the witnesses in the case, the prosecutor had decided that the statements given by the applicant’s friends were not consistent, while the statements given by the police officers were coherent and logical. In order to clarify the contradictory statements, the prosecutor had ordered a formal confrontation between the applicant and the two police officers. 2.     The Court’s assessment 42.     The Court observes that the applicant’s complaints concern both the substantive and the procedural aspects of Article 3 of the Convention. As regards the former aspect, the Court notes that the parties disagreed as to whether some of the applicant’s injuries (particularly the knee injury) had been caused during his arrest on 23-24 June 2013, and whether they had been the result of the use of proportionate force. 43.     The Court is sensitive to the subsidiary nature of its task, and recognises that it must be cautious in taking on the role of a first ‑ instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case. Therefore, the Court considers it appropriate to firstly examine whether the applicant’s complaint of ill-treatment on the night of 23 ‑ 24   June 2013 was adequately investigated by the authorities (see, for example, Dzhulay v. Ukraine , no. 24439/06, § 69, 3 April 2014; Chinez v.   Romania , no. 2040/12, § 57, 17 March 2015; and Chatzistavrou v.   Greece , no. 49582/14, §   45, 1 March 2018). It will then turn to the question of whether the alleged ill-treatment took place, bearing in mind the relevant domestic findings. (a)     General principles 44.     The Court reiterates its general principles concerning the States’ duty to conduct an effective investigation of arguable claims concerning ill ‑ treatment set out in, among other judgments, El ‑ Masri v.   the former Yugoslav Republic of Macedonia ([GC] no. 39630/09, §§   182 ‑ 185, ECHR   2012), and Mocanu and Others v. Romania ([GC] nos.   10865/09 and   2   others, §§ 316-326, ECHR 2014 (extracts)). 45.     The principles concerning the prohibition of ill-treatment have been recently summarised in the case of Bouyid (see Bouyid v.   Belgium [GC], no.   23380/09, §§ 81-90, ECHR 2015). (b)     Application to the present case 46.     In the present case, it was not disputed that, at the time of his arrest, the applicant had sustained bruising to his thighs and lower legs, bruising and swelling to his left knee, bruising and abrasions to his nose, a broken tooth and damaged dental braces (see paragraphs 21, 35 and 39 above). 47.     The Court finds that the injuries in question were sufficiently serious and that the applicant’s complaint of ill-treatment was “arguable” for the purposes of Article   3. (i)     Procedural aspect of Article 3 48.     The Court observes that the investigation into the alleged abuse of powers by the police officers in the present case was formally instituted on 30   July 2013 (see paragraph 19 above). It was subsequently discontinued by the prosecutor, whose findings were upheld by the Stalowa Wola District Court on 3 July 2014. The prosecutor established that the police officers had used force against the applicant but had not beaten him at the Stalowa Wola district police station. The use of force against the applicant had been justified by his aggressive behaviour. 49.     However, the Court is not persuaded that the investigation was sufficiently thorough and effective to meet the above-mentioned requirements of Article 3. 50.     It finds it particularly unsatisfactory that the prosecuting authorities unconditionally accepted the statements of the police officers without taking any note of the fact that they obviously had an interest in the outcome of the case and in diminishing their responsibility. 51.     In this respect, the Court observes that the authorities considered the officers’ statements to be coherent and logical. However, those statements were worded identically. In addition, the officers had included very detailed information in their statements, such as the addresses of the applicant’s friends who had been involved in the events and their national identification numbers (see paragraph 37 and above). Such statements, containing details not usually found in eyewitness testimony, were uncritically accepted by the authorities. On the other hand, even though all the applicant’s friends who had been involved in the events clearly confirmed that the applicant had been beaten by the police officers, their testimony was considered to be inconsistent (see paragraph 29 above). 52.     It is true that the authorities organised a formal face-to-face confrontation between the applicant and the two police officers (see paragraph 25 above). However, no further measures were taken with a view to resolving the discrepancies between the version of events as submitted by the police officers and the allegations of the applicant and his friends (see, mutatis mutandis , Bouyid, cited above § 128, ECHR 2015) in order to assess the credibility of each side’s statements. 53.     In the light of the above, the Court considers that the investigation was superficial and lacked the necessary objectivity. 54.     Against this background, in view of the lack of a thorough and effective investigation into the applicant’s arguable claim that he had been beaten by police officers, the Court finds that there has been a violation of Article   3 of the Convention. (ii)     Substantive aspect of Article 3 55.     Given its finding above concerning the lack of an effective investigation, the evidence before the Court does not enable it to find beyond all reasonable doubt that the applicant was subjected to treatment contrary to Article 3 (see Hovhannisyan v. Armenia , no. 18419/13, §   60, 19   July 2018). The Court therefore considers that there is insufficient evidence for it to conclude that there has been a violation of Article 3 of the Convention under its substantive head. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 56.     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 57.     The applicant claimed 17,000 euros (EUR) in respect of non ‑ pecuniary damage. 58.     The Government contested this claim. 59.     Taking into account all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR   10,000   in respect of non-pecuniary damage. B.     Costs and expenses 60.     The applicant also claimed 2,175 Polish zlotys (PLN) (approximately EUR   500) for costs and expenses incurred before the Court. In support of his claim, he submitted an invoice from his lawyer for that amount. 61.     The Government contested this claim. 62.     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 considers it reasonable to award the sum of EUR   500 for costs and expenses incurred in the proceedings before the Court. C.     Default interest 63.     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 procedural aspect;   3.     Holds that there has been no violation of Article   3 of the Convention in its substantive aspect;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 500 (five hundred 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;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 June 2019, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Renata Degener   Pere Pastor Vilanova Deputy Registrar   President