CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 avril 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }     Communicated on 2 April 2015   FOURTH SECTION Application no. 6058/10 Józef Kazimierz WOŚ against Poland lodged on 26 January 2010 STATEMENT OF FACTS The applicant, Mr Józef Kazimierz Woś, is a Polish national, who was born in 1966 and lives in Węglówka. A.     The circumstances of the case The facts of the case, as submitted by the applicant and established by the domestic authorities, may be summarised as follows. 1.     Events on 26 January 2009 On 26 January 2009 at about 5 p.m. the applicant and his wife went by car from their home to another village. The applicant’s wife was driving. The car was borrowed from the applicant’s friend. On a narrow portion of the road they saw a police car trying to stop another car. The applicant’s wife, who apparently considered that this was not a safe place to stop other cars, overtook the police vehicle and sounded the horn, the latter she claims by accident. The police officers, while being overtaken, noticed that the car driven by the applicant’s wife had no left rear light and that its rear registration plate was not lit. They decided to stop the car for an inspection. They overtook the applicant and his wife, stopped the car and requested the relevant documents. They considered that the registration document of the car was partly illegible. The applicant claims that he read the contents of the registration document aloud to the policemen. They tried to contact the Nowy Targ Police Station to confirm the identity of the driver but to no avail. The applicant and his wife spent about half an hour in the car on the side of the road. The applicant then requested that they all drive to the police station because he wanted to speak to the officers’ manager. They all drove to the Police Station in Jabłonka, but there was no one there so the police officers continued the inspection in the street in front of the police station. They found that, apart from the light that did not work, the fire extinguisher in the car was too small. They wanted to impose a fine of 200   Polish Zlotys on the applicant’s wife. The applicant then told his wife: “do not sign those beggars anything” ( “Nie podpisuj nic tym dziadom.” ). The officers felt offended and one of them told the applicant that he would be arrested for insulting police officers. The applicant claims that at that moment, the “routine” inspection had already lasted for about two hours, he and his wife were getting nervous and his wife began to cry because the policemen wanted to take her to the police station to question her. He also submits that the policemen repeated each time they found a shortcoming with the car that “this will cost a lot”. Therefore, the applicant considered that they wanted a bribe from him and referred to them as “beggars”. According to the applicant he was trying to defend his wife who after two hours of intervention was very anxious and upset. The policemen claimed that he was disturbing their routine activities. After the comment made by the applicant the police officers tried to apprehend him. However, he resisted arrest and moved a few steps back. Then one of the policemen, J.B., forcefully put the applicant on the ground and pressed him with his knee against the ground. According to the policemen the applicant still kicked and tried to get away and then kicked J.B. in his left leg. Then the other policeman, D.B., used pepper spray which he directed in the applicant’s face. When the applicant calmed down, he was handcuffed. Subsequently the applicant was taken to the police station where his wife informed the policemen that her husband had heart problems so they called an ambulance. The doctor who came to the police station considered that the applicant needed to be examined in a hospital and the applicant was taken to the Nowy Targ Hospital. After examination he was placed under police arrest (Policyjna Izba Zatrzymań) . He was released the following day. Apparently after the release he was examined again in a hospital in Myślenice. The relevant notes from the hospitals provide, in so far as they are legible, as follows: On 26 January 2009, the Nowy Targ Hospital: “Skin bruises on right hand. Chemical burn of right eye.” On 27 January 2009, a document confirming release from the Myślenice Hospital: “He claims that yesterday he was beaten up by the police who used pepper spray on him. Skin bruises on right hand, chemical burn of right eye, reddish conjunctiva of right eye.” The applicant also submitted a copy of a medical certificate requesting that the applicant be examined by an ophthalmologist, because of “burns from pepper spray. The note is marked “urgent” but bears no date. 2.     Proceedings concerning the applicant’s arrest On 28 January 2009 the applicant lodged a complaint against his arrest with the Nowy Targ District Court. He submitted that he had been apprehended by force and put on the ground with his face down, that the police had used the whole container of pepper spray on his face and he had many chafes and bruises. He had been released from the police arrest at about midday and let out by the back door without a jacket and with no money so he had to walk until he found a taxi driver who agreed to give him a lift and call the applicant’s wife who apparently had been waiting at the police station since 10 a.m. and did not know that her husband had been released and let out the back door. On 4 February 2009 the Nowy Targ District Court refused to grant the applicant’s complaint. The court found that in his complaint the applicant had presented “his own version of events” and that the arrest had been lawful because, “although there was no fear that he might go into hiding there was a reasonable suspicion that he might influence the testimonies of a witness of the events in question”. The Court also considered that there was a premise to bring proceedings against the applicant in an expedited manner. Having examined the grounds, legality and the appropriateness of the applicant’s arrest the court found no shortcomings. It appears from a half ‑ page of reasoning in the decision that the court heard no witnesses; it based its findings on a note made by the police, the arrest record and examination record. The court did not refer to the applicant’s allegations as regards the use of excessive force by the police. 3.     Proceedings against the applicant On 22 February 2009 the police lodged an act of indictment against the applicant with the Nowy Targ District Court. The applicant was charged with having offended police officers on duty and with having breached the personal inviolability of a policeman by kicking him. On 28 May 2009 the Nowy Targ District Court found the applicant guilty as charged and conditionally discontinued the proceedings against him. He was also ordered to pay PLN 200 for charity and costs of proceedings. On 24 July 2009 the applicant appealed. He submitted that he did not feel guilty; on the contrary, he was a victim. He also considered that he could not violate anybody’s personal inviolability because he was pressed against the ground and two policemen were sitting on his back trying to handcuff him. On 8 September 2009 the Nowy Sącz Regional Court quashed the first ‑ instance judgment and discontinued the proceedings finding that the prohibited acts committed by the applicant had not constituted offences because of their insignificant social consequences (znikoma szkodliwość społeczna czynu). 4.     Proceedings against the police officers On 28 January 2009 the applicant lodged with the Nowy Targ District Prosecutor a notification of commitment of an offence of abuse of power by two police officers who had arrested him on 26 January 2009. On 16 April 2009 the District Prosecutor discontinued the investigation finding that no offence of abuse of power had been committed. The prosecutor referred to the relevant provisions of the domestic law, in particular to the 1990 Police Act and found that the police had the right to use force because “the applicant had not obeyed their orders, behaved nervously and tried to run away”. The applicant appealed, holding, among other things that the prosecutor had not properly examined the circumstances of the case; the policemen had apprehended him without a legal reason. The applicant admitted that he had been nervous because of the control which lasted about two hours but considered that this could not be the basis for his arrest. He further submitted that the policemen had used excessive force, inappropriate in the circumstances; they put him on the ground with his face down, sat on his back and used pepper spray to incapacitate him. He had injuries afterwards and had to be on sick leave for over a month. He also referred to the circumstances of his release from the police station and the fact that his wife who had been waiting there was not informed that he had left by the back door. On 12 August 2009 the Nowy Targ District Court upheld the challenged decision discontinuing the investigation. The Court found that the applicant again had repeated his version of events which the prosecutor found not to be credible. The Court did not refer in any way to the applicant’s submissions as regards his injuries. It only found that the “circumstances of the applicant’s arrest were already examined because the applicant had complained against his arrest and his complaint was dismissed”. The Court further held that “it had been reprehensible not to have informed the applicant’s wife of the applicant’s release but this had not constituted any offence”. B.     Relevant domestic law and practice 1.     Code of Criminal Proceedings Section 244 reads, in so far as relevant, as follows “§   1. The Police shall be authorised to arrest a suspected person, if there is good reason to suppose that he has committed an offence, and it is feared that such a person may go into hiding or destroy evidence of his offence or if his identity could not be established or there is a premise to carry proceedings against such person in an expedited manner.” Section 246 reads, in so far as relevant, as follows: “§   1. The arrested person shall have the right to lodge an interlocutory appeal with the court. In this appeal, the arrested person may request an examination of the grounds, legality and the appropriateness of his arrest.” 2.     Use of force by the police At the relevant time the regulations on permissible use of direct coercive measures by the police were laid down by section 16 of the Police Act, which provided that in situations in which a police order is not obeyed, such measures can be resorted to only in so far as they correspond to the requirements of a particular situation and in so far as they are necessary to obtain compliance with that order. Article 5 § 1 of the Ordinance of 17 September 1990 on the use of coercive measures by the police provided at the relevant time that direct physical force could be used to overpower a person, to counter an attack and to ensure compliance with an order. COMPLAINTS The applicant complains under Articles 5 and 13 of the Convention that the police used disproportionate measures to the circumstances of the case and that the domestic authorities failed to establish and examine all circumstances of the case.     QUESTIONS TO THE PARTIES 1.     Has the applicant been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention? Was the use of force by the police appropriate and proportionate to the circumstances of the case?   2.     Having regard to the procedural protection from inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? In particular, were the circumstances of the applicant’s arrest and the necessity of use of force by the police sufficiently established and examined by the domestic authorities?