CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 19 janvier 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s68D1564D { width:34.89pt; display:inline-block } .s75E5574A { width:142.76pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION CASE OF R.B. v. HUNGARY (Application no. 48444/18)             JUDGMENT   STRASBOURG 19 January 2023   This judgment is final but it may be subject to editorial revision. In the case of R.B. v. Hungary, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Alena Poláčková , President ,   Péter Paczolay,   Gilberto Felici , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   48444/18) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 October 2018 by a Hungarian national, R.B., born in 1974 and living in Budapest (“the applicant”) who was represented by Mr B. Tóth, a lawyer practising in Budapest; the decision to give notice of the application to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice; the decision not to have the applicant’s name disclosed; the parties’ observations; Having deliberated in private on 13 December 2022, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The applicant suffers from a psychiatric disease. In an incident on 20   July 2017, ambulance was called to her home. Because the medical staff could not enter the flat, police were called in, and they forced the door. In an effort to overcome the ensuing resistance of the applicant, found in the bath, the two officers manhandled and handcuffed her, twisting and breaking an arm. The officers forced the applicant, naked, to lie down on the floor so as to contain her. Eventually, she was transferred to the traumatology department and then admitted to psychiatry. 2.     Her ensuing criminal complaint was dismissed by various prosecution instances on 3 April and 4   June 2018, which held that the use of force had been lawful and proportionate in the situation. The officers were never questioned. 3.     The applicant complained under Article 3 of the Convention that she had been subjected to police brutality which had not been adequately investigated. THE COURT’S ASSESSMENT 4.     The Government argued that the applicant had not exhausted the available domestic remedies in that she had not pursued a substitute private prosecution. The applicant disagreed. 5.     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 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; Borbála Kiss v. Hungary , no.   59214/11, §§ 25-27, 26 June 2012; see also Matko v. Slovenia , no.   43393/98, § 95, 2 November 2006). Consequently, a substitute public prosecution cannot be considered an effective remedy whose exhaustion is required by Article 35 § 1 of the Convention. The Government’s preliminary objection of non-exhaustion of domestic remedies must therefore be dismissed. 6.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 7.     The Government submitted that the police intervention had been lawful, professional and proportionate; and adequately investigated. The fact that the police officers involved were not interrogated in the investigation could be explained by the consideration that they could neither be questioned as suspects in the absence of a crime nor be heard as witnesses because that might have countered the prohibition of self-incrimination. The applicant disagreed. 8.     The general principles concerning ill-treatment by State agents have been summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90, ECHR 2015). 9.     In the present case, the police officers, while trying to contain her, twisted the handcuffed applicant’s arm and broke it. There can be therefore no doubt that the injury sustained by the applicant attained the minimum level of severity required for Article 3 to come into play. 10.     The Court observes that the applicant was subjected to the impugned treatment in an intervention meant to assist the ambulance staff in checking on her health status. It notes the Government’s assertion that the coercion applied by the police was necessitated by the applicant’s alleged resistance to a lawful measure. However, it takes the view that the Government have not furnished any convincing or credible arguments which would provide a basis to explain or justify the degree of force used. In particular, it has not been clarified what particular conduct on the applicant’s side warranted a reaction with bone-breaking violence. 11.     Especially in the face of the fact that the applicant – a 43-year-old woman, teacher by profession – was known to be suffering from a psychiatric condition, the Court finds that the Government’s explanation for the incident sits uncomfortably with the circumstance that two male officers were involved in the scene, who should have been able to master the situation without causing such an injury. For the Court, this is so even if the applicant was unwilling to cooperate with those officers. 12.     Since the Government have not shown the contrary, the Court cannot but conclude that, even assuming that the situation objectively required the use of force, the extent to which it was applied was excessive (see Réti   and   Fizli v. Hungary , no. 31373/11, § 34, 25 September 2012). Such use of force resulted in a serious injury for the applicant, aggravated by the humiliation of being forced down on the floor naked by male officers. This amounted to degrading treatment. 13.     There has accordingly been a substantive violation of Article   3 of the Convention. 14.     The Court moreover reiterates that where an individual raises an arguable claim that he or she has been seriously ill-treated by the police or other such 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). 15.     The Court observes in particular that the implicated officers were never actually questioned in the investigation in pursuit of the applicant’s complaint. The authorities were reasoning 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, if any, force in this argument, circular in nature, which effectively deprived the applicant of any opportunity to challenge the perpetrators’ version of the events. An identical argument was already discarded by the Court in Nagy v. Hungary ([Committee], no.   57967/00, § 36, 26 May 2020). 16.     This circumstance alone enables the Court to conclude that there has been a procedural violation of Article 3 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 17.     The applicant claimed 25,000 euros (EUR) in respect of non ‑ pecuniary damage and EUR 4,500 in respect of costs and expenses incurred before the Court. 18.     The Government contested these claims. 19.     The Court awards the applicant the full sum claimed in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. 20.     Having regard to the documents in its possession, the Court considers it reasonable to award the full sum claimed for the proceedings before the Court, plus any tax that may be chargeable to the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a substantive violation of Article 3 of the Convention; Holds that there has been a procedural violation of Article 3 of the Convention; 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 25,000 (twenty-five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR 4,500 (four thousand 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. Done in English, and notified in writing on 19 January 2023, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Liv Tigerstedt   Alena Poláčková   Deputy Registrar   President