CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 15 avril 2021

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HUNGARY (Application no. 75260/17)         JUDGMENT           STRASBOURG 15 April 2021 This judgment is final but it may be subject to editorial revision. In the case of Csúcs v. Hungary, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Alena Poláčková, President,   Péter Paczolay,   Raffaele Sabato, judges, and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   75260/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr   Viktor Zsombor Csúcs (“the applicant”), on 20 October 2017; the decision to give notice to the Hungarian Government (“the Government”) of the application; the parties’ observations; Having deliberated in private on 16 March 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the alleged ill-treatment of the applicant by police officers. THE FACTS 2.     The applicant was born in 1993 and lives in Budapest. The applicant was represented by Mr T. Fazekas , a lawyer practising in Budapest. 3.     The Government were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     At about 10 p.m. on 25 June 2016 the applicant parked his car in front of an office building in Budapest. Two police officers appeared and reproached him for having used his mobile phone while driving. The applicant refused to admit that he had done so. An altercation ensued and, when one of the officers reached to grab him, the applicant ran inside the office building and stopped at the reception area. The officers called in reinforcements. 6.     Three more officers arrived soon afterwards. Two of them ultimately apprehended the applicant. The applicant submitted that he had been pulled from behind the reception desk and hit in the stomach and his arms had been grabbed and held; the officers had restrained him and had knelt on his back and handcuffed him while uttering insults. 7.     He was later taken to the local police station, where he was held for one and a half hours. 8.     Immediately after his release, the applicant was examined by a doctor from the ambulance service. The doctor found that he had sustained slight bodily injuries, in particular contusions of the head, of both wrists, of the left thigh, of the coccygeal area and of the chest, as well as an abrasion of the left knee. The doctor considered that the injuries would heal within eight days. 9.     On 18 July 2016 the applicant lodged a criminal complaint with the Budapest District X Police Department. He submitted that he had been subjected to an excessive police measure, in the course of which he had been verbally abused and had suffered injuries. 10.     The Budapest Department of the Central Investigative Prosecutor’s Office (“the Department”) started an investigation into an alleged offence of ill-treatment committed in the course of official duties. 11.     On 15 February 2017 the Department completed the investigation, finding that the applicant’s allegations were unfounded. 12.     The Department relied on various documents, including the applicant’s complaint, the police documents relating to the applicant’s committal to the police station, the outpatient medical reports, forms filled in by the ambulance service, the documents submitted by the applicant (including photographs of the injuries sustained), the video-recordings of the office building’s security cameras and other medical reports. It heard, as witnesses, the applicant and two security guards present at the time of the incident, as well as the driver of the ambulance and an accompanying nurse. It also obtained a forensic medical expert opinion and organised a photographic identification procedure. The recordings of the external security camera were analysed and evaluated; the footage showed no ill ‑ treatment taking place outside the building. The police officers involved were not questioned. 13.     The Department came to the conclusion that the applicant had not abided by the police instructions and had run inside the office building in order to avoid a lawful police measure, meaning that coercion had been justified. 14.     On 7 March 2017 the applicant’s legal representative lodged a complaint. 15.     On 11 April 2017 the Attorney General’s Office dismissed the complaint. It held that adequate and sufficient evidence had been collected, that the lower authority’s findings of fact were in accordance with the evidence and that it had been reasonable for the Department to conclude that the applicant’s allegations were unfounded. It referred to the possibility for the applicant, acting as a substitute private prosecutor, to bring the case before a court. However, the applicant did not choose to do so. 16.     In separate proceedings, on 31 October 2017 the Pest Central District Court discontinued regulatory offence proceedings conducted against the applicant for the traffic violation of using a mobile phone while driving and for the minor offence of “failing to remain at the scene” ( helyszín biztosításával kapcsolatos szabálysértés ). It was satisfied that the use of the mobile phone had not been proven and that the applicant had run inside the office building because he had felt menaced by the officers rather than to frustrate a lawful measure. THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 17.     The applicant complained that he had been ill-treated by the police and that the ensuing investigation had not been adequate, in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Admissibility 18.     The Government argued that the applicant had not exhausted the available domestic remedies in that he had not pursued a substitute private prosecution. The applicant disagreed. 19.     The Court has already held in a number of cases that applicants were not required, as a matter of exhaustion of domestic remedies, to pursue a substitute private prosecution, essentially because to do so would represent the pursuit of a legal avenue which would have the same objective as their criminal complaints (see Pósa v. Hungary , no. 40885/16, § 18, 7 July 2020; R.S. v. Hungary , no. 65290/14, § 38, 2 July 2019; M.F. v. Hungary , no.   45855/12, § 34, 31 October 2017; R.B. v. Hungary , no. 64602/12, §§   60 ‑ 65, 12 April 2016; and Borbála Kiss v. Hungary , no. 59214/11, §§   25 ‑ 27, 26 June 2012). Consequently, a substitute public prosecution cannot be considered an effective remedy whose use is required for exhaustion purposes by Article 35 § 1 of the Convention. The Government’s preliminary objection of non-exhaustion of domestic remedies must therefore be dismissed. 20.     The Court further notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 21.     The applicant alleged a breach of Article 3 of the Convention. 22.     The Government submitted that the applicant had frustrated a lawful police measure, and such conduct had justified the coercion complained of especially since it had not gone beyond what was necessary and proportionate in the circumstances – as had been proven by an adequate and detailed investigation. The absence of any questioning of the officers involved had been justified because they could not be interviewed either as suspects (in the absence of a well-founded suspicion of an offence) or as witnesses (because of the risk of self-incrimination). 23.     The Court’s relevant case-law has recently been summarised in, among many other authorities, M.F. v. Hungary (cited above, §§ 42 ‑ 45 and   51, with further references). In addition, where an individual is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention. That applies in particular to the use of physical force against an individual where it is not made strictly necessary by his or her conduct, whatever the impact on the person in question (see Bouyid v. Belgium [GC], no. 23380/09, §§ 100-01, ECHR 2015). 24.     The Court observes that the applicant was involved in an altercation with police officers, after which he was taken to the police station. It notes the applicant’s allegation that he was ill-treated by two officers while being apprehended. After his release from the police station, a doctor recorded that the applicant had contusions and an abrasion. 25.     The Court considers that the injuries sustained by the applicant were serious enough to bring the matter within the scope of Article 3. It remains to be determined whether the State should be held responsible under Article   3 for those injuries. 26.     The Court observes that the applicant was apprehended in the course of a police intervention on suspicion of having used his mobile phone while driving. It notes the Government’s assertion that the coercion applied by the police was necessitated by the applicant’s alleged frustration of a lawful measure. However, it takes the view that the Government have not furnished any convincing or credible arguments which would provide a basis for explaining or justifying the degree of force used during the operation. In particular, it has not been clarified what particular conduct on the applicant’s side warranted a reaction in the course of which he sustained numerous injuries. Given in particular that the applicant was eventually acquitted of the regulatory offences of using a mobile phone while driving and of “failing to remain at the scene”, the Court finds that the Government’s explanation for the incident sits uncomfortably with the fact that several law-enforcement agents were involved at the scene, who should have been able to master the situation without causing injuries. The Court considers that this applies even if the applicant might initially have been unwilling to cooperate with those officers. In sum, the applicant was released from custody with a range of injuries not convincingly accounted for by the Government (see, mutatis mutandis , Réti and Fizli v. Hungary , no.   31373/11, §§ 32-34, 25 September 2012). 27.     Since the Government have not shown that the use of force against the applicant was made strictly necessary by his conduct, the Court cannot but conclude that such coercion diminished his human dignity and entailed a substantive breach of Article 3. 28.     The Court reiterates, moreover, that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition on torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria , 28   October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII; regarding the requirements of an effective investigation, see Bouyid , cited above, §§ 118-23). 29.     The Court observes that, following the applicant’s complaint, the authorities carried out a detailed investigation into his allegations and collected ample evidence. It is not, however, persuaded that this investigation was sufficiently thorough and effective to meet the above requirements of Article 3. 30.     In particular, the Court observes that the officers involved were never questioned by the authorities. It notes the Government’s argument to the effect that the officers in question could not be questioned either as witnesses, because of the risk of self-incrimination, or as suspects, in the absence of a well-founded suspicion of a crime. The Court finds little force in this argument, rather circular in nature, which effectively barred the applicant from access to the alleged perpetrators and thus deprived him of any opportunity to challenge their version of events (see Nagy v. Hungary [Committee], no. 43441/15, § 36, 26 May 2020). 31.     Against this background, in view of the lack of a thorough and effective investigation into the applicant’s arguable claim – supported by medical evidence – that he had been ill-treated by police officers, the Court finds that there has been a procedural violation of Article 3 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 32.     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.” Damage 33.     The applicant claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage. 34.     The Government contested that claim. 35.     The Court considers that the applicant must have suffered considerable distress on account of the violation found and awards him the full amount claimed. Costs and expenses 36.     The applicant also claimed EUR 3,600 for the costs and expenses incurred before the Court. This amount corresponds to thirty hours of legal work billed by his lawyer at an hourly rate of EUR 120. 37.     The Government contested that claim. 38.     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 full amount claimed. Default interest 39.     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, Declares the application admissible; Holds that there has been a violation of Article 3 of the Convention under its substantive limb; Holds that there has been a violation of Article 3 of the Convention under its procedural limb; 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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR 3,600 (three thousand six 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. Done in English, and notified in writing on 15 April 2021, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Liv Tigerstedt   Alena Poláčková Deputy Registrar   President