CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 mai 2022

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .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 } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both }   Published on 30 May 2022   FIRST SECTION Application no. 17912/21 Tomasz KRYSZKIEWICZ and Małgorzata KRYSZKIEWICZ against Poland lodged on 29 March 2021 communicated on 9 May 2022 STATEMENT OF FACTS 1.     The applicants, Mr Tomasz Kryszkiewicz and Ms Małgorzata Kryszkiewicz, are Polish nationals who were born in 1955 and 1959 respectively. They live in Ostrów Wielkopolski. The circumstances of the case 2.     The facts of the case, as submitted by the applicants and as established by a criminal court during the criminal proceedings described below, may be summarised as follows. J.K.’s ill-treatment and suicide 3.     On 13 August 2012 the applicants’ son, J.K., was arrested in Ostrów Wielkopolski together with two other men on suspicion of having committed a robbery in a jewellery shop. 4.     On 14 August 2012 J.K. and the other suspects were taken to the Siedlce police headquarters ( Komenda Miejska Policji ). They were subsequently placed in separate rooms and subjected to preliminary questioning ( wstępne rozpytanie ) by police officers from the criminal department. 5.     J.K.’s questioning started in the evening and lasted thirty-five minutes. It was carried out by three police officers supervised by the head of the department. 6.     During the questioning J.K. was subjected to a series of measures and techniques aimed at obtaining a confession to the robbery. 7.     As established by the court, an electrical discharge weapon (EDW) was used on J.K.; his mouth was covered with tape; water was poured over him; he was punched, kicked and hit with truncheons on his head and body; he was verbally insulted and mocked; and he was threatened that his genitals would be pressed in a drawer. During the questioning, J.K. heard the screams of his fellow suspects, who were being subjected to similar treatment. 8.     The applicants submitted that the EDW had been discharged to their son’s genital area and that his genitals had in fact been pressed in a drawer. They also submitted that J.K., who had been well-built, strong and athletic, had fainted several times during the questioning and had fallen to the floor. 9.     J.K. was subsequently transferred to another police department, where he was formally charged with the robbery and pleaded guilty to that offence. The applicants submitted that one police officer from the criminal department had stayed with J.K. throughout that stage of the proceedings. J.K. was not assisted by a lawyer. 10.     On 15 August 2012 J.K. and his fellow suspects were transferred to the Siedlce District Prosecutor’s Office ( Prokuratura Rejonowa ), where they were questioned as suspects. All three men pleaded guilty. 11.     On the same day a court decision was given in respect of J.K. and the other suspects, authorising their release on bail. J.K.’s co-suspects were released, while J.K. was transferred back to the police headquarters in Siedlce and arrested in connection with another case. 12.     J.K. was then taken to the police station in Ostrów Wielkopolski, where he was charged with new offences and questioned as a suspect. 13.     At 1.30 p.m. on 17 August 2012, J.K. was released from custody. 14.     J.K. went home. The applicants submitted that on arriving home, their son had been exhausted, devastated and withdrawn. 15.     At 9.30 p.m. on 17 August 2012, J.K. went to be examined by a doctor at a public hospital. According to the report of the examination, J.K. bore marks of having been beaten: he had visible abrasions or burn marks around his neck, on his thighs and in his genital area; he had abrasions around his wrists; and he did not have any feeling in one thumb. 16.     J.K. continued to be withdrawn, depressed and fearful. He recounted to his parents what had happened to him while he had been in police custody. 17.     On 24 August 2012 it was discovered that J.K. had hanged himself, having left a suicide note. Investigation into J.K.’s suicide 18.     On 25 August 2012 the Ostrów Wielkopolski District Prosecutor opened an investigation into the allegation that, between 1 and 24 August 2012, J.K. had been incited by an unknown person to commit suicide (no.   1   Ds   1305/12/S). 19.     The prosecutor ordered that an autopsy be performed to establish the direct cause of J.K.’s death. On 27 August 2012 the prosecutor rejected a request submitted by the applicants to have an autopsy performed for the purpose of establishing whether J.K.’s suicide might have been caused by the psychological devastation caused by his ill-treatment at the hands of the police. 20.     On 27 August 2012 an autopsy was performed. An autopsy report confirmed that J.K. had died because of self-strangulation and it did not comment on the events leading up to the suicide. 21.     On 26 September 2012 the police in Ostrów Wielkopolski discontinued the investigation into J.K.’s suicide on the grounds that he had taken his life of his own volition. The applicants submitted that the decision did not refer to the impugned events which had taken place between 14 and 17   August 2012. 22.     On 28 September 2012 the Ostrów Wielkopolski District Prosecutor upheld that decision. 23.     On 11 October 2012 the applicants appealed against the decision to discontinue the investigation, arguing that the authorities should not have focused exclusively on the possible participation of third parties in J.K.’s hanging, but rather should have examined the possible role of the police officers who had ill-treated J.K. while he had been in custody. 24.     On 21 January 2013 the Ostrów Wielkopolski District Court ( Sąd Rejonowy ) dismissed the applicants’ appeal and upheld the decision to discontinue the investigation. It essentially held that nobody had incited J.K. to commit suicide and that J.K., even prior to his arrest, had been depressed and unhappy about his life. It also observed that the police officers’ conduct – including the resulting consequences – was being examined in the context of another investigation (see paragraphs 28 and 29 below), and that a reclassification of the charges would be possible if it were established that the police officers had contributed to J.K.’s suicide. 25.     The District Court’s decision was served on the applicants’ lawyer on 24 January 2013. 26.     The applicants submitted that the authorities had impeded their access to the investigation file and to the final decisions. The Court’s ruling on the admissibility of the complaint relating to the above-mentioned investigation 27.     On 12 December 2013 the Court declared inadmissible as premature an application lodged by the applicants (no. 39505/13, 27 May 2013), in which they complained that the investigation into J.K.’s suicide had been ineffective. The Court informed the applicants in that case that they could renew their application once the ongoing domestic proceedings had ended. Investigation into J.K.’s ill-treatment by police 28.     On 3 September 2012 the applicants lodged a criminal complaint, submitting that their son had been subjected to ill-treatment which had led to his suicide. 29.     On 25 September 2012 the Lublin Appellate Prosecutor ( Prokuratur Apelacyjny ) in Chełm opened an investigation into the offences of: (i) abuse of power and cruel treatment of J.K. during his detention at the Siedlce Police Headquarters from 14 to 17 August 2012; (ii) failure to ensure adequate conditions for J.K.’s transport from Ostrów Wielkopolski to Siedlce on 13   and 14 August 2012; and (iii) abuse of power in respect of J.K.’s wrongful arrest on 15 August 2012. Trial of the police officers involved in J.K.’s ill-treatment 30.     On an unspecified date the prosecutors lodged a bill of indictment with the Ostrów Wielkopolski District Court against the five police officers who had taken part in the questioning of J.K. and of his fellow suspects. 31.     On 18 March 2018 the Ostrów Wielkopolski District Court convicted all the officers of the offence of forced extraction of testimony by a public official in conjunction with the offence of abuse of power (Article   246 in conjunction with Article 231 of the Criminal Code). The court sentenced the head of the department to a prison term of two years and two months, and the three officers who had taken part in J.K.’s questioning were sentenced to prison terms of one year, one year and eight months and one year and ten months respectively. The head of the department was also prohibited from holding a supervisory post in the police and the subordinate officers were prohibited from working as police officers for periods ranging from three to five years. They were also ordered to pay, jointly and severally, 10,000 Polish zlotys (approximately 2,500 euros) in compensation to each applicant. The police officer who had taken part in the questioning of J.K.’s fellow suspects was convicted as the others were, and sentenced to one year’s imprisonment. 32.     The court held that the defendants had acted deliberately, in cooperation and with a direct intention to obtain confessions from J.K. and the other suspects. The court observed that, by using psychological and physical cruelty ( przemoc ), the officers had threatened public confidence, human rights and the victims’ health and dignity. The court explained that uttering threats fell within the scope of cruelty irrespective of whether those threats had ultimately been carried out. 33.     As to J.K.’s suicide, the court held that the act in question had not been influenced by his ill-treatment during the questioning by the police, which had been of a short duration. The court found that although J.K. had sustained numerous injuries, they had not been serious, and his bodily functions had not been impaired for more than seven days. Without negating the possible psychological effects of the ill-treatment, the court took the view that it was more likely that, following his release, J.K. had been sad and depressed because he had feared that he would be believed to be a police informant and subjected to reprisals. In that connection, the court relied on the fact that J.K. had provided the police with information about the criminal activities of people he knew, and that threatening Internet posts had been released in the days preceding J.K.’s death. It also relied on the testimony of J.K.’s girlfriend. 34.     The court ruled on the basis of various items of evidence, including: the testimony of the defendants and other police officers present in the building, J.K.’s fellow suspects, his relatives and his girlfriend; forensic reports; the medical certificate of 17 August 2012; the report on J.K.’s autopsy; and two expert reports concerning J.K.’s injuries that were based on photos of his body taken on 27 August 2012. According to the above ‑ mentioned documents, J.K.’s injuries had been inflicted on him on 14   August 2012 and had resulted from multiple uses of an EDW on J.K.’s body – including in the genital area – and from hitting and, possibly, kicking. The experts also stated that an injury to the genitals such as that which had been described by J.K.’s relatives would have caused large bruises lasting up to a week and would have left the victim in pain and with difficulty walking. The autopsy of 27 August 2012 could have established whether J.K. had sustained such injuries but the requisite special procedure in that respect had not been performed. 35.     The applicants, who had the status of auxiliary prosecutors ( oskarżyciel posiłkowy ), appealed against that judgment. They argued that the court should have characterised the impugned actions as torture; that the penalty had been flagrantly lenient; and that the compensation awarded had been flagrantly disproportionate. They also argued that the torture to which J.K. had been subjected had led to his suicide, a fact that the court had failed to establish. 36.     On 29 September 2020 the Kalisz Regional Court ( Sąd Okręgowy) partly amended the description of certain charges – for example, by determining who exactly had used the EDW. The court also imposed on the head of the police department a prohibition on working as a police officer for six years, and on one subordinate officer, a similar prohibition for seven years. The appellate court upheld the remainder of the judgment. As to the cause of J.K.’s suicide, the appellate court held that, while there was evidence that J.K. had been angry with himself for breaking during the police questioning and for incriminating people in his close circle, there was no proof that J.K.’s actions had resulted from abuse at the hands of the police. The court also found no basis on which to characterise the impugned acts as torture. To this end, the court found that J.K.’s suffering and injuries had not been sufficiently severe to amount to torture, and that the applicable law did not oblige the court to characterise his treatment as such. 37.     A cassation appeal was not available in the case. Relevant domestic law 38.     The Polish Criminal Code ( Kodeks karny ) does not contain a specific offence of torture. Acts of cruel treatment at the hands of public officials may fall under the provisions described below. 39.     Article 231 § 1 of the Criminal Code, which defines the offence (misdemeanour) of abuse of power, reads as follows: “A public official who, exceeding his or her authority, or not performing his or her duties, acts to the detriment of a public or individual interest shall be punishable by imprisonment for a term of up to three years.” 40.     Article 246 of the Criminal Code, which defines the offence (misdemeanour) of extraction of testimony by a public official, reads as follows: “A public official or anyone who, acting on [the public official’s] orders, uses violence or unlawful threats or otherwise physically or mentally harasses another person in order to obtain specific testimony, explanations, information or statements, shall be punishable by imprisonment for a term of between one and ten years.” 41.     Article 247 of the Criminal Code, which defines the offence (misdemeanour) of cruel treatment, reads as follows: “1. Whoever physically or mentally abuses a person legally deprived of his or her liberty shall be punishable by imprisonment for a term of between three months and five years. 2. If the perpetrator acts with particular cruelty, he or she shall be punishable by imprisonment for a term of between one and ten years. 3. A public official who, contrary to his duties, allows the commission of the acts specified in paragraphs 1 or 2 shall be subject to the penalties specified in those provisions.” 42.     Article 2 of the Code of Criminal Procedure, in so far as relevant, reads as follows: “1. The purpose of this Code is to regulate the conduct of criminal proceedings in a way which will ensure that: (1) the perpetrator of an offence is detected and punished, and no innocent person is punished; (2) through the correct application of measures provided for by criminal law and through the disclosure of the circumstances which favoured the commission of the offence, the objectives of the criminal proceedings are achieved not only in combating the particular offences, but also in preventing them, as well as consolidating the rule of law and the principles of community life; (3) the legally protected interests of the injured party are secured; and (4) the determination of the case is achieved within a reasonable time.” QUESTION TO THE PARTIES Having regard to the procedural protection of the right to life (see Salman v.   Turkey [GC], no.   21986/93, § 104, ECHR 2000-VII), and having regard to the procedural protection from ill-treatment (see Labita v.   Italy [GC], no.   26772/95, § 131, ECHR 2000-IV), was the investigation and the ensuing trial in the present case by the domestic authorities in breach of Articles   2 and 3 of the Convention?