CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 12 décembre 2023

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Stažnik, and to declare inadmissible the remainder of the applications; the decision to give priority (Rule 41 of the Rules of Court) to the applications; the parties’ observations; the third-party observations received from Crew Against Torture; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The applications concern the allegedly disproportionate use of force during the arrest of the first applicant, who had refused to wear a protective mask on public transportation in the framework of COVID-19 protective measures, and the treatment of the second applicant who had witnessed the scene. 2.     On 27 June 2020 the first applicant boarded a train, without wearing a protective mask, with his son, the second applicant, who was two and a half years old at the time. 3.     Two days earlier, in the framework of COVID sanitary protection measures, an official instruction had come into force stating that all passengers using public transportation were to wear a protective mask, failing which the vehicle could not run. The applicant claimed that the said instruction had been published only in the evening of the previous day and that there had been no signs about it on the train. The Government submitted that the instruction had been widely publicised in the days preceding the incident and that there had been signposts on the train. 4.     After refusing to put on a protective mask or to leave the train, upon request both by the train personnel and a police officer, with whom he had allegedly quarrelled, the first applicant put on a mask only when he saw two further policemen approaching. He was then informed that minor offence proceedings would be initiated against him for disturbing the public order and insulting a police officer. 5 .     Since he refused to disembark the train, the first applicant was apprehended by the police officers, who used force to overcome his resistance and carried him off the train. They then handcuffed him while he was on the ground. The police officers immediately lifted the first applicant from the ground, and he sat on a nearby bench. The second applicant, who witnessed the scene, started crying. One of the police officers took him in his arms and carried him to sit next to the first applicant, whose handcuffs were thereafter removed. 6.     The applicants were then escorted on foot to a nearby police station where they stayed for another two and a half hours before being released. 7 .     The applicants stayed outside in the yard of the police station, where the police interviewed the first applicant, who stated that he had no objections to the police’s use of force and signed a statement in that respect. He was examined by a doctor who found no injuries on his body. The second applicant stayed at all times near and under the supervision of the first applicant, playing and riding his bicycle. The police officers gave him water and cookies, and the child was calm. 8 .     According to the Government, while in police custody the first applicant did not ask for the second applicant’s mother to be called and he explicitly asked for the social services not to be informed of the incident as he had agreed to cooperate with the police. According to the first applicant, he had asked for the second applicant’s grandfather to be called but the police refused. 9 .     The applicants subsequently complained to the competent Ministry and the police internal control about the conduct of the police, but their complaints were dismissed having found the police actions lawful. They also requested for their case to be examined by the competent commission for complaints against police work, which dismissed a large portion of the applicants’ complaints and only established that during the time the first applicant had been arrested no specially trained police officer had taken care of the second applicant’s best interest and his privacy, in line with section 18 of the Police Duties and Powers Act. 10.     On 10 November 2020 the applicants lodged a constitutional complaint complaining, among other things, about the disproportionate force used against the first applicant during his arrest as well as the second applicant’s witnessing the scene. On 28 October 2021 the Constitutional Court dismissed the applicants’ complaint. It found that the force used by the police had been lawful and proportionate in the circumstances. It also held that it had been the first applicant who had caused the second applicant to become upset by witnessing his arrest so any trauma he may have suffered could not be attributed to the police. 11.     In subsequent minor offence proceedings, on 30 November 2021 the first applicant was acquitted of the charges of disturbing peace and public order by insulting a police officer. 12.     The applicants complained, under Article 3 of the Convention, that the force used by the police against the first applicant had been disproportionate and that the investigation into those allegations had not been effective. They also complained that the violent arrest of the first applicant, and keeping the second applicant at the police station without anyone taking care of him, had exposed the second applicant to inhuman and degrading treatment in breach of Article 3 of the Convention. THE COURT’S ASSESSMENT 13.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. 14.     The Court considers that it is not necessary to decide on the Government’s preliminary objections concerning the abuse of the right of application, exhaustion of domestic remedies and the applicability of Article   3, since the applications are in any event inadmissible for the following reasons. 15.     The relevant general principles of the Court’s case-law concerning the substantive and procedural aspects of obligations under Article 3 of the Convention are summarised in the case of Bouyid v. Belgium   ([GC], no.   23380/09, §§ 81-90 and §§ 114-23, ECHR 2015). As regards the first applicant 16.     The Court notes that the first applicant had disobeyed a police officer’s clear order to disembark the train, which had resulted in about 30   minutes delay, due to his refusal to put on a protective mask. He was then informed that force would be used against him in order to remove him from the train and initiate minor offence proceedings against him. Since the first applicant again refused to disembark the train, the police officers forcibly removed him from the train. The domestic authorities found that the use of force by the police had complied with domestic law in the circumstances. 17.     Having reviewed the security footage which shows the police action in question, the Court notes that the first applicant resisted the police by holding on to the railing inside the train. The three officers then immobilised his arms and carried him out of the train, placing him on the ground, where the first applicant was handcuffed. The Court agrees that the force used had been made strictly necessary by the first applicant’s own conduct, and neither excessive nor disproportionate (compare Barta v. Hungary , no. 26137/04, §§   68-72, 10   April 2007). 18.     In view of the foregoing considerations, in particular the fact that the first applicant lacked critical judgment of his own conduct when faced with a simple obligation to cooperate with the legitimate requirements of a law enforcement officer and that he sustained no injuries, the Court is of the view that his complaint was not “arguable” for the purposes of Article 3 of the Convention and that the domestic authorities were thus not required to carry out an effective investigation into his alleged ill-treatment by the police ( see   Goran Kovačević v. Croatia , no. 34804/14, § 58, 12 April 2018 and cases cited therein). 19.     Accordingly, the Court finds that the first applicant’s complaints under both the substantive and the procedural limbs of Article   3 should be rejected as manifestly ill-founded, pursuant to Article   35 §§ 3 (a) and 4 of the Convention. As regards the second applicant 20 .     The Court has previously found that the possible presence of children, whose young age makes them psychologically vulnerable, at the scene of an arrest is a factor to be taken into consideration in planning and carrying out this kind of operation (see Gutsanovi v. Bulgaria , no.   34529/10, § 132, ECHR   2013 (extracts), where children witnessed their father’s arrest during a police operation in the early hours of the morning involving special agents wearing masks;   A v. Russia, no. 37735/09, § 56, 12 November 2019 , where a nine-year-old child witnessed a violent arrest of her father who had put up no resistance, and Dokukiny v. Russia , no. 1223/12, §§ 28-29, 24 May 2022, where a four-year-old child witnesses her father’s arrest and sustained injuries by the police during the event). 21 .     It has also examined cases of leaving children unattended for prolonged periods of time while the parents were in police custody (see Ioan Pop and Others v. Romania , no. 52924/09, § 65, 6 December 2016, where a twelve-year-old child was not looked after by an adult for several hours while his parents were taken into police custody, and Hadzhieva v. Bulgaria , no.   45285/12, §§ 60-66, 1 February 2018, where the failure to ensure that a fourteen-year-old girl was looked after for two days while her parents were held in police custody was found to breach Article 8 of the Convention). Finally, the Court has stressed that any fault or complicity by a parent in such circumstances could not absolve the State from its obligation to protect the child and to intervene in order to protect him (see Ioan Pop , cited above, §   64). 22.     The Court notes that the situation in the present case differs from that in the above-cited cases (see paragraphs 20 and 21) in that it did not concern a planned operation in which the authorities would have been able to prepare ahead in order to take into account the best interest of the second applicant as a child and minimise any risk to his well-being. On the contrary, it concerned a spontaneous police intervention brought about by the child’s father’s refusal to obey the law and a lawful police order. 23 .     Moreover, unlike in the above-cited cases, it cannot be said that in the present case the police officers completely ignored the second applicant’s presence at the scene. The police officers exchanged with the first applicant for over ten minutes and warned him about the fact that they may need to use force in front of his child. After their intervention, one of the police officers took the second applicant in his arms and immediately brought him next to his father, the first applicant, as soon as the situation had calmed down (see   paragraph 5 above, and contrast Dokukiny , cited above, § 29). 24.     Once at the police station, the second applicant stayed close to his father at all times, playing and riding his bicycle in the police station’s yard (see paragraph 7 above). According to the Government, it was precisely his father, the first applicant, who had requested that social services not be called (see paragraph 8 above; see also section 134(2)3 of the Minor Offences Act according to which the police are under the obligation to notify the competent Social Welfare Centre immediately following an arrest in cases where it is necessary to take measures with a view to caring for children or other relatives of the arrested person). 25.     It is regrettable that a specially trained police officer for youth had not been present in order to protect the best interest of the second applicant and his privacy, as required by domestic law (see paragraph 9 above). 26.     However, bearing in mind the relatively short duration of the situation (two and a half hours), the conditions of the second applicant’s stay at the police station as well as the fact that no medical documentation has been put forward showing that the child had suffered any sort of consequences from the event, the Court is satisfied that his treatment by the authorities had not been such as to reach the threshold of Article 3 of the Convention. 27.     Consequently, the Court finds that the second applicant’s complaint under Article 3 of the Convention should be rejected as manifestly ill ‑ founded, pursuant to Article   35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 18 January 2024.     Dorothee von Arnim   Pauliine Koskelo   Deputy Registrar   President Appendix List of cases: No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by 1. 6749/22 Grgičin v. Croatia 31/01/2022 Danijel GRGIČIN 1985 Zagreb Croatian Ivan KOBAŠ 2. 7154/22 Grgičin v. Croatia 31/01/2022 Liam GRGIČIN 2017 Zagreb Croatian Ivan KOBAŠ