CEDH · CASELAW;CLIN;ENG — 8 janvier 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 115 January 2009 Iribarren Pinillos v. Spain - 36777/03 Judgment 8.1.2009 [Section III] Article 3 Positive obligations Failure by authorities properly to assess loss sustained by victim of police brutality: violation   Article 6 Criminal proceedings Article 6-1 Reasonable time Length of proceedings to determine questions of liability and quantum in police brutality case: violation   Facts : The applicant was seriously injured during violent clashes in Pamplona in December 1991 by a smoke bomb that had been fired by riot police. A criminal investigation ensued, but was twice provisionally discontinued and the applicant’s appeals were dismissed. Ultimately, however, the Audiencia Provincial overturned the impugned decisions in part, after finding “due evidence of an offence of assault occasioning bodily harm” by the security forces but that it was not possible to establish the identity of the officer who had fired the device. Subsequently, the applicant was awarded permanent invalidity benefit at 37% of the maximum rate. The applicant also lodged a claim for damages from the authorities with the Ministry of the Interior. The investigating official advised that the applicant’s claim should be allowed in part, but with reduced damages to take into account the applicant’s involvement in the clashes and the dangerous situation he had put himself in. Despite a favourable opinion from the Ministry of the Interior’s legal department, the Council of State, to which the matter had been referred for an opinion, considered that the applicant’s claim should be dismissed as the identity of the person who had fired the smoke bomb was unknown and the applicant had taken part in the clashes in which it was fired. The Council of State therefore concluded in their report that the authorities were not responsible for the damage caused and that the applicant’s claim failed under the general rule prohibiting the abuse of legal process. The Ministry of the Interior dismissed the applicant’s claim. The applicant then lodged an administrative complaint with the Audiencia Nacional , which granted his claim in part. It found that the authorities were responsible for his injuries which had been caused by the disproportionate acts of a police officer and that there was a clear causal link between the injuries and the officer’s act. In its assessment of the damages to be paid to the applicant, the Audiencia Nacional took into account the applicant’s presence and participation in the clashes and public disturbances in which the police had had to intervene, the applicant’s age, the significant aesthetic damage the applicant had suffered and the long-term effects on his occupational and personal life. The Supreme Court quashed that judgment on the grounds that the security forces’ response had not been disproportionate and that the applicant’s injuries were the result of chance so that he had to bear the damage himself. The applicant lodged an amparo appeal with the Constitutional Court, but this was declared inadmissible on 21 October 2003. Law : Article 3 – It was not disputed between the parties, and indeed had been established by the criminal courts, that the applicant had been injured by a police officer during violent clashes with the security forces. Although the ensuing investigation had not identified the officer who had fired the smoke bomb, the fact remained that the Audiencia Provincial had found that the police had committed an offence of assault occasioning bodily harm. The Spanish State’s responsibility for the damage sustained by the applicant had, therefore, been established. As to whether adequate reparation had been available to the applicant for the damage, the Court noted that he had had reasonable prospects of winning an action against the authorities as the administrative proceedings he had taken would in principle have enabled him to put forward the substance of his complaints of serious injury and to afford him appropriate redress for a violation of Article 3. As to whether that remedy was effective in practice, the Court noted that the criminal courts had not established or sought to establish whether the applicant shared any responsibility for the damage he had sustained and that the administrative courts had not carried out any further investigation with a view to determining his share of liability. The applicant could not be required to bear the financial consequences of being hit by the smoke-bomb alone, as the use of such a device had necessarily entailed a risk to the physical integrity and even the lives of those present. In their decisions rejecting the applicant’s claims for compensation, the domestic courts had not given sufficient consideration to the gravity and after-effects of his injuries, and had failed to determine whether the security forces’ use of the device was strictly necessary and proportionate to the legitimate aim of putting an end to the disturbances. The Supreme Court had failed to take into account the authorities’ responsibility for the events as established by the criminal courts and had not properly examined whether the applicant had suffered actual, quantifiable damage or whether there was a causal link between the act and the damage. Lastly, no inquiries had been made and no reasons had been put forward   to explain the difference between the Supreme Court’s finding and the finding of the criminal courts. Conclusion : violation (unanimously). Article 6 § 1 – The period to be taken into consideration had started on 15 December   1991, when the applicant sustained his injuries and the criminal investigation began, and had ended on 21 October 2003 with the decision of the Constitutional Court. The period under consideration was thus 11 years and 10 months. In arriving at that conclusion the Court noted that the criminal proceedings instituted to identify those responsible for the injuries were a condition sine qua non to the establishment of the State’s liability. Further, over and beyond the rule requiring civil proceedings to await the outcome of the criminal trial, the Court considered that the period to be taken into consideration in the instant case had to include all the steps taken by the applicant to identify the offenders in the criminal proceedings and to obtain compensation in administrative proceedings for the damage he had sustained as a result of the actions of a member of the security forces.   Although the case had been somewhat complex, this could not explain such lengthy proceedings. As to the applicant’s conduct, there was nothing before the Court to suggest that he had been responsible for any substantial delays. Accordingly, the proceedings had not taken place within a “reasonable time”. Conclusion: violation (unanimously). Article 41   – EUR 100,000 for pecuniary damage (unanimously) and EUR 40,000 in respect of non-pecuniary damage (four votes to three).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes