BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF WIKTORKO v. POLAND
(Application
no. 14612/02)
JUDGMENT
STRASBOURG
31 March
2009
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Wiktorko v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section Registrar,
Having
deliberated in private on 10 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14612/02) against the
Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Polish national, Ms Anna
Wiktorko (“the applicant”), on 23 April 2001.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that during her detention in a
sobering-up centre she had been treated by the centre's staff in a
manner which amounted to inhuman and degrading treatment in breach of
Article 3 of the Convention, and that her detention had been
unlawful and in breach of Article 5 § 1 of the
Convention.
- On
5 December 2006 the Court decided to communicate the complaint under
Article 3 of the Convention to the Government. Under the provisions
of Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Olsztyn.
- On
the evening of 27 December 1999 the applicant met with her friend.
- Subsequently
the applicant took a taxi to go home and refused to pay the allegedly
exorbitant fare without obtaining a proper bill. As a result, the
driver did not let the applicant out of the taxi in front of her
house but took her to a sobering up centre in Olsztyn. The
applicant called the police from the taxi as she felt threatened by
the driver's behaviour. So did the driver as regards the applicant's
behaviour.
- Subsequently,
the applicant was detained in the sobering up centre. She
refused to undergo a breathalyser test. The applicant submitted that
she had had two beers. The Government maintained that she had been in
a state of “average intoxication”.
- The
applicant submitted that the staff of the centre had insulted her and
that she had been brutally manhandled and beaten. She had also been
forcibly stripped naked by two men and a woman. Afterwards, she had
been forcibly put into a disposable gown.
- The
Government submitted that it was the applicant who had been
aggressive towards the staff and had verbally insulted them. They had
therefore had no choice but to undress her by force as she had
refused to undress herself and had subsequently resisted their
legitimate efforts to dress her in a disposable gown.
- They
further argued that she had had to be placed in restraining belts
because after being put to bed she had been kicking the doors of the
room and screaming abuse, waking other patients.
- The
parties' submissions are concordant as to the fact that the applicant
was subsequently restrained by belts, tied to a bed and locked in a
cell until the morning of 28 December 1999, when she was released.
The
applicant submitted that she had remained in the cell, restrained by
the belts, for approximately ten hours. The Government did not
challenge this submission.
- On
29 December 1999 the applicant obtained a medical certificate
concerning her condition.
The
relevant part of the certificate read:
A bloody bruise on the left hip, at the front, of
approximately 3 cm in diameter, abrasion at the wrist at the elbow
side; mobility and rotation of the shoulder limited (unclear whether
passive or active movements concerned); the [applicant] complained of
pain in her jaw at the left side; the jaw at that side swollen.
- Shortly
afterwards the applicant filed a complaint against the staff of the
centre with the head of the district police in Olsztyn. She submitted
that she had not been intoxicated, that nothing in her conduct had
justified the decision to deprive her of her liberty and that she had
been brutally manhandled and undressed by the staff of the centre.
- On
21 January 2000 the head of the district police refused to institute
an investigation in her case. The grounds of the decision read:
On 29.12.1999 Ms A. Wiktorko complained to the Town
Police Station that on 27/28 December a taxi driver and the staff of
the sobering-up centre had used physical force against her and
insulted her. In her formal complaint that a criminal offence had
been committed, which she submitted on 4 January 2000, she
[explained] that on 27 December 1999 at 11 p.m. approximately a
driver of a taxi No. [...] had first insulted her verbally and
afterwards had taken her to the sobering-up centre where she had been
detained against her will and physical force, resulting in bruises
and scratches, had been used against her by the staff. A number of
persons were requested to provide information, but no one confirmed
the applicant's allegations. The taxi driver stated that Ms Wiktorko
had been taken to the sobering-up centre because she had not wanted
to pay the fare or to leave the taxi and that she had herself agreed
to be taken there; while she could have left the taxi at any time;
she was detained at the centre by the police, not by the taxi driver
himself as she says; furthermore she did not want to have a
breathalyser test but when she was already in the centre she did not
want to undress herself and when she was put in the room for the
patients she was hitting the door with her hands and other parts of
her body inflicting injuries on herself so that restraining belts had
to be used for fear that her life and health might be endangered.”
On
31 January 2000 the Olsztyn district prosecutor upheld this
decision.
- On
8 February 2000 the applicant appealed. In particular, she reiterated
that her detention had been completely unjustified as she had not
been intoxicated. She had had two beers on the evening of 27 December
1999 which by no standards could be described as intoxication, still
less as intoxication justifying deprivation of liberty in a
sobering up centre. She had been ill treated by the staff
of the centre after her arrest, but the decision of 21 January 2000
had obviously failed to elucidate the facts of the case. She
submitted that during her detention she had been stripped naked. She
stressed that the police had failed to grant her access to the file
concerning her detention and that the investigation had been
superficial.
- On
21 February 2000 the head of the district police in Olsztyn decided
to investigate the applicant's allegations.
- On
17 March 2000 an expert prepared an opinion as to the applicant's
health upon her release on the basis of the file of the
investigation. The opinion reiterated the findings of the certificate
of 29 December 1999 and stated that the injuries could have been
sustained both as a result of the use of force against the applicant
or of her behaviour after she had been undressed and put into the
cell.
- The
investigation was subsequently discontinued by the police and on 19
April 2000 the district prosecutor confirmed this decision. The
written grounds of the decision read:
“During the investigation factual findings were
made, witnesses were questioned, the [applicant's] medical records
were examined and a medical expert was appointed with a view to
establishing the injuries and circumstances in which they might have
been sustained. It was established on the basis of this material that
on 27 December 1999 Anna Wiktorko, having drunk alcohol and having
refused to pay for the taxi, had been taken by the taxi-driver to
[the sobering-up centre]. Afterwards she was taken, in the presence
of a police patrol, to the building of the centre. Once she was
inside, a decision was taken to detain her in the centre, regard
being had to her behaviour which was vulgar and offensive towards
those who were present there. As she did not want to comply with the
regulations in force by taking a breathalyser test and by voluntarily
undressing and changing into a gown, the staff used force against her
in order to make her change her clothes and put her in a room for
detainees. As she continued to be aggressive and to destroy property
and could have harmed herself, she was put in restraining belts so
that she could calm down.
The applicant's complaints were not confirmed by the
witnesses. Her behaviour was reprehensible and it was necessary to
put her in the sobering-up centre. It has not been established that
physical force was used against her over and above what was necessary
to calm her down. Hence, as there was no indication that a criminal
offence had been committed the investigation has to be discontinued.”
- The
applicant, represented by a lawyer, appealed to the regional
prosecutor. She submitted that she had not been intoxicated and that
the actions of the employees of the centre had infringed her personal
rights, her dignity and her bodily integrity. She also submitted that
her procedural rights had been breached in that the police had failed
to inform her representative about any of the investigative measures
that had been taken during the proceedings. It was also submitted
that during the investigation the applicant should have had an
opportunity to confront the employees of the centre.
- On
7 June 2000 the Olsztyn regional prosecutor, having regard to the
applicant's procedural arguments, quashed the contested decision of
19 April 2000. He noted that there had been significant
discrepancies between the applicant's testimony and that given by
other persons, which had to be elucidated.
- On
2 August 2000 the Olsztyn-North district prosecutor discontinued the
proceedings, finding that no criminal offence had been committed. The
written grounds of the decision read:
“In the evening of 27 December 1999 [the
applicant] called a taxi [...] After the trip a disagreement as to
the amount of the fare to be paid arose between her and the driver.
As the parties disagreed, [the driver] decided to solve the problem
with the assistance of the police. After he had called the dispatch
centre [of the taxi company], he drove to the vicinity of the
sobering-up centre and waited for the police to come. They then
waited for the patrol to come; at that time the driver entered the
building of the centre, while the applicant stood by the taxi and
also called the police from her mobile phone.
It is noted that the driver did not commit the offence
of unlawful deprivation of property against the applicant, given that
at that time both parties wanted to solve the problem with the
assistance of the police; it is also noted that at that time the
applicant could simply have walked away or used her phone.
After police officers A.R. and W.K. arrived at the
scene, they tried to obtain a friendly resolution of the situation,
but to no avail. Having regard to the vulgar and aggressive behaviour
of the applicant, who smelled of alcohol, the officers decided that
she should be detained in the sobering-up centre, where she refused
to take a breathalyser test. Hence, the doctor on duty decided, on
the basis of a general examination, that the applicant was in a state
of intoxication justifying her detention for up to twelve hours.
Staff member M.P [a woman] subsequently tried to make
the applicant change into a disposable garment.
As the applicant offered stubborn resistance, M.P.
requested other members of staff, L. Z. and T.P. [men] to help her;
the applicant was dressed in a gown with their assistance and put
into the room for intoxicated persons.
The applicant continued to be aggressive; therefore
physical force against her was used and she was put in restraining
belts.
It transpires from the provisions governing the
organisation of the sobering-up centres and job descriptions of the
members of staff, the staff acted in compliance with law on the basis
of the applicable legal provisions and there is therefore no basis
for a well-founded suspicion that a criminal offence of unlawful
deprivation of liberty or coercion had been committed.
On the basis of section 41 of the Law on Education ...
in Sobriety and the Fight against Alcoholism and sections 19 and 20
of the ... ordinance a bill for PLN 250 was drawn for the
applicant to pay for the costs of her detention.
It should be unequivocally stated that the conduct of
the staff toward the applicant was lawful.
During the investigations all persons involved in the
applicant's arrest and detention were questioned. The ample evidence
gathered in the case did not give rise to a suspicion that a criminal
offence had been committed.
Subsequently,
the decision reiterated the findings of the medical report (see
paragraph 3 above). The decision further read:
In her submissions the applicant complained that the
staff of the centre had breached her dignity and ... Having in mind
that the injuries which the applicant suffered and the insults can be
examined in proceedings instituted by a private bill of indictment,
it is open to the applicant to bring such a bill within 14 days from
the service of the present decision.
- The
applicant appealed, reiterating the arguments she had submitted in
her previous appeal. She also submitted that she had been humiliated
by the staff of the centre as she had been forcibly undressed and
tied to a bed with restraining belts until the morning of 28 December
1999. This had made it impossible for her to go to the toilet.
- On
25 October 2000 the Olsztyn Regional Court upheld the decision to
discontinue the proceedings. In its decision, which consisted of
twenty lines, the court observed that the evidence gathered in the
case had led it to the logical conclusion that the applicant had been
intoxicated and that therefore her detention in the sobering-up
centre and the use of force against her had been justified.
II. RELEVANT DOMESTIC LAW
- The
Law on Education in Sobriety and the Fight against Alcoholism (Ustawa
o wychowaniu w trzeźwosci i przeciwdziałaniu alkoholizmowi)
provides for measures which may be applied in respect of intoxicated
persons. Sections 39-40 set out measures which may be applied to such
persons.
- Pursuant
to section 39 of the Law, sobering up centres are to be set
up and managed by the authorities of municipalities with more than
50,000 inhabitants. Section 40 of the Law, as applicable at the
relevant time, provided, in so far as relevant:
“1. Intoxicated persons who behave
offensively in a public place or a place of employment, are in a
condition endangering their life or health, or are themselves
endangering other persons' life or health, may be taken to a
sobering up centre or a public health care facility, or to their
place of residence.
2. In the absence of a sobering-up centre, such persons
may be taken to a [police station].
3. [Intoxicated] persons who have been taken to a
sobering-up centre or a [police station] shall remain there until
they are sober but for no longer than twenty-four hours. ...”
- The
Ordinance of the Minister of Health and Social Welfare of 23 October
1996 on the procedure for dealing with intoxicated persons, the
organisation of soberingup centres and the scope of health care and
rules on assessing the fees connected with admittance to and stays in
sobering up centres (Rozporządzenie Ministra Zdrowia i
Opieki Społecznej w sprawie trybu doprowadzania osób w
stanie nietrzeźwości organizacji izb wytrzeźwień
i zakresu opiekli zdrowotnej oraz zasad ustalania opłat
związanych z doprowadzeniem i pobytem w izbie wytrzeźwień)
set out detailed rules relating to detention in a sobering-up centre.
- Section
9 of the Ordinance provided, in so far as relevant:
“1. A person taken to a sobering-up
centre shall promptly be given a medical examination.
2. Following the medical examination, a
doctor shall ascertain whether such person should be placed in a
sobering-up centre ..., or should be placed in a hospital or other
medical establishment ..., or whether there are no signs of
intoxication justifying placement in a sobering-up centre.”
Its
paragraph 13 (1) provided:
“A replacement garment shall be issued to all
detained persons.”
- Section
16 of the Ordinance states that direct coercion may be applied in
accordance with the rules laid down in section 18 of the 1994
Protection of Mental Health Act, which provides in particular that
direct coercion can consist of immobilisation, among other methods.
Section 16 of that Act further refers to the Ordinance of the
Minister for Health and Social Welfare of 23 August 1995 on the
form of application of direct coercion (w sprawie sposobu
stosowania przymusu bezpośredniego), which determines the
manner in which direct coercion may be applied. The latter ordinance
provides, in so far as relevant:
“9 (2). A doctor shall recommend application
of direct coercion in the form of immobilisation or isolation for a
period of no longer than four hours. If necessary, the doctor, after
personal examination of the patient, may extend the use of
immobilisation for subsequent periods of six hours.
13. A nurse on duty shall check the state of the
immobilised or isolated person no less frequently then every 15
minutes, including when the person is asleep. The state of the person
shall be recorded on the [patient's] card without delay.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained of degrading treatment during the incident of 27
December 1999 and the failure to investigate her allegation properly,
in breach of Article 3 of the Convention. This provision reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The Government submitted that the applicant had failed
to exhaust all relevant domestic remedies. After her efforts to
institute criminal proceedings in respect of the alleged offence of
coercion had failed, she should have filed a private bill of
indictment with a criminal court, alleging that an offence of causing
slight bodily injury had been committed. She had been duly informed
of her right to do so by the prosecutor.
- The applicant argued that after the failure of her
first attempt to have the persons involved in the incident
prosecuted, she should not be required to embark on another attempt
to vindicate her rights which, in any event, would probably be
destined to fail.
- Article
35 § 1 of the Convention provides, as relevant:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law...”
- The
aim of the rule of exhaustion of domestic remedies referred to in
Article 35 § 1 is to afford Contracting States an opportunity to
put matters right through their own legal system before having to
answer before an international body for their acts (see, among many
other authorities, Egmez v. Cyprus, no. 30873/96, §
64, ECHR 2000-XII). The obligation to exhaust domestic remedies
requires an applicant to make normal use of remedies which are
effective, sufficient and accessible in respect of his Convention
grievances. To be effective, a remedy must be capable of remedying
directly the impugned state of affairs (see Balogh v. Hungary,
no. 47940/99, § 30, 20 July 2004).
- In
cases where an individual has an arguable claim under Article 3 of
the Convention, the notion of an effective remedy entails, on the
part of the State, a thorough and effective investigation capable of
leading to the identification and punishment of those responsible
(see Selmouni v. France [GC], no. 25803/94, § 79,
ECHR 1999-V, and Egmez v. Cyprus, cited above,
§ 65).
- Where
there is a choice of remedies, the exhaustion requirement must be
applied to reflect the practical realities of the applicant's
position, so as to ensure the effective protection of the rights and
freedoms guaranteed by the Convention (see Allgemeine Gold-und
Silberscheideanstalt A.G. v. the United Kingdom,
no. 9118/80, Commission decision of 9 March 1983, Decisions and
Reports (DR) 32, p. 165, and, more recently, Krumpel and
Krumpelová v. Slovakia, no. 56195/00, § 43,
5 July 2005). Moreover, an applicant who has used a remedy which
is apparently effective and sufficient cannot be required also to
have tried others that were also available but probably no more
likely to be successful (see Wójcik v. Poland,
no. 26757/95, Commission decision of 7 July 1997, DR 90-A,
p. 28; Assenov and Others v. Bulgaria, 28 October
1998, § 86, Reports of Judgments and Decisions
1998-VIII; Aquilina v. Malta [GC], no. 25642/94, §
39, ECHR 1999-III; and Günaydin v. Turkey (dec.),
no. 27526/95, 25 April 2002).
- The
Court notes that the applicant complained about the incident to the
prosecution authorities, which opened a criminal investigation into
the offence alleged. The Court does not find the applicant's choice
of procedure unreasonable. The applicant tried thereby to have the
persons she believed guilty of criminal conduct towards her
identified and punished. Given that the authorities found that the
persons concerned had no case to answer, the applicant should not be
required to embark on another set of proceedings which served an
identical purpose and did not offer good prospects of the applicant's
being any more successful.
- The
Government's plea of non exhaustion of domestic remedies must
therefore be rejected.
- The Court notes that the complaint under both the
substantive and procedural limbs of Article 3 is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Alleged ill-treatment of the applicant
(a) The parties' submissions
- The
applicant complained that she had been ill-treated by the employees
of the sobering up centre. She had, in particular, been forcibly
undressed by two men and a woman, placed in restraining belts and
locked in a cell overnight. She had felt deeply humiliated. This
amounted to inhuman and degrading treatment which was completely
unjustified. Before her arrest she had had two beers, which by no
stretch of the imagination could qualify as intoxication justifying
her arrest and subsequent lengthy detention, let alone the manner in
which she had been treated by the centre's staff.
- The
Government referred to the applicant's submission that during the
incident on the night of 27 December 1999 the staff of the centre had
used violence against her and had humiliated her without any
justification. They were of the view that the facts established in
the investigation had shown that the applicant's view of the material
events had been inaccurate. It had clearly transpired from the
evidence gathered during the investigation that the applicant, being
in a state of “average intoxication” , had refused to pay
her taxi fare, insulted police officers verbally, used vulgar
insults, been aggressive towards the centre's staff and insulted the
doctor who had tried to examine her. She had also resisted all the
legitimate actions taken by the staff in conformity with the
applicable laws, by refusing to take her clothes off. She had also
resisted the staff when they had tried to bring her to the patients'
room. After having been placed in that room, she had kicked the door,
shouted and woken up other patients. In response to that behaviour,
the staff, having consulted the doctor, had restrained the applicant
by means of restraining belts.
- The
Government further referred to the medical certificate which the
applicant had submitted to the Court. The doctor had found one
bruise, one scratch, a painful shoulder and a swollen jaw. They
submitted that these injuries could have been caused by the
applicant's own behaviour when she had kicked the doors and walls
after having been locked in the patients' room.
- The
Government concluded that the injuries sustained by the applicant had
been slight and that therefore the treatment complained of did not
fall within the ambit of Article 3 of the Convention. Alternatively,
even assuming that the treatment complained of could be regarded as
falling within the scope of that provision, they argued that the use
of physical force against the applicant by the staff of the centre
had been made strictly necessary by her own conduct and had also been
lawful. The Government were of the view that the suffering
experienced by the applicant had not gone beyond the inevitable
element of suffering or humiliation connected with a given form of
otherwise legitimate treatment.
(b) The Court's assessment
- The Court reiterates that Article 3 of the Convention
enshrines one of the most fundamental values of a democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances or the
victim's behaviour (see, among other authorities, Labita v. Italy
[GC], no 26772/95, § 119, ECHR 2000 IV). To
fall under Article 3 of the Convention, ill treatment must
attain a minimum level of severity. The assessment of this minimum
level of severity is relative; it depends on all the circumstances of
the case, such as the duration of the treatment, its physical and
mental effects and, in some cases, the gender, age and state of
health of the victim (see Valašinas v. Lithuania,
no. 44558/98, §§ 100-01, ECHR 2001 VIII).
- The
Court has considered treatment to be “inhuman” because,
inter alia, it was premeditated, was applied for hours at a
stretch and caused either actual bodily injury or intense physical
and mental suffering. It has deemed treatment to be “degrading”
because it was such as to arouse in the victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them (see
Iwańczuk v. Poland, no. 25196/94, § 51,
15 November 2001).
- The Court first notes that the events complained of
occurred during the applicant's detention in a sobering-up centre. In
this connection it recalls that confinement in a sobering-up centre
in Poland,
as provided for by domestic law, amounts to a “deprivation of
liberty” within the meaning of Article 5 § 1 of
the Convention (see Witold
Litwa
v. Poland,
no. 26629/95, § 46, ECHR 2000-III).
- In
this connection it reiterates that Article 3 does not prohibit
the use of force in order to effect an arrest. However, such force
may be used only if indispensable and must not be excessive (see,
among others, Klaas v. Germany, 22 September 1993,
§ 30, Series A no. 269; Rehbock v. Slovenia,
no. 29462/95, §§ 68 78, ECHR 2000 XII; and
Krastanov v. Bulgaria, no. 50222/99, §§ 52
and 53, 30 September 2004). In respect of a person deprived of
his liberty, recourse to physical force which has not been made
strictly necessary by his own conduct diminishes human dignity and is
in principle an infringement of the right set forth in Article 3
(see Ribitsch v. Austria, 4 December 1995, § 38,
Series A no. 336, and Krastanov, cited above, § 53).
- The
Court is sensitive to the subsidiary nature of its task and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.),
no. 28883/95, 4 April 2000). Nonetheless, where allegations
are made under Article 3 of the Convention, as in the present case,
the Court must apply a particularly thorough scrutiny (see, mutatis
mutandis, Ribitsch, cited above, § 32).
- The
Court notes in this connection that the authorities in their
decisions reiterated that the treatment to which the applicant had
been subjected had not been in breach of the applicable laws
governing the use of force by the staff of sobering-up centres.
However, the Court reiterates that the mere fact that the domestic
courts found that the use of force did not amount to a criminal
offence does not by itself absolve the Contracting State from its
responsibility under the Convention (see Ribitsch, cited
above, § 34).
- The Court observes that the applicant submitted a
medical certificate drawn up the day after her release. It transpires
from this that the applicant had had certain minor injuries which, in
the doctor's view, could have originated from the use of physical
force against her. The Court notes that, unlike in many cases
concerning complaints under Article 3 of the Convention, in the
present case it is not the exact degree of physical coercion used
against the applicant which is critical for the examination of the
case. The essential aspect of the present case is the applicant's
complaint that during her detention she was forcibly undressed by a
woman and two men and subsequently placed in restraining belts.
- The
Court notes that in her complaints to the prosecuting authorities the
applicant submitted that she had been undressed and brutally
manhandled by the staff. She also submitted that their conduct had
humiliated and debased her. However, both the domestic authorities
and the Government referred to the resistance offered by the
applicant to the staff of the centre while they were forcibly
undressing her as sufficient justification for the treatment
complained of. They were of the view that her refusal to undress and
her resistance justified the use of force against her, but they
failed to address her complaint that the use of force had infringed
her personal rights and dignity.
- As
regards the applicant's refusal to undress, the Court notes the
provisions of the ordinance governing the organisation of sobering-up
centres as applicable at the material time (see paragraph 28 above),
which unequivocally provided that all detained persons should be
issued with a replacement garment, a sort of disposable gown, while
in detention. For the reasons given below, the Court does not
consider it necessary to decide whether in the particular
circumstances of the applicant's case she should have been required
to undress or whether the use of force to make her do so was
justified.
- Although this is not a case where a strip search was
carried out, the Court nevertheless considers that its case-law in
that area is of relevance as it also relates to situations in which
the applicants were ordered to undress. In this respect the Court
reiterates that it has held that whilst strip searches may be
necessary on occasion to ensure prison security or prevent disorder
or crime, they must be conducted in an appropriate manner and must be
justified. They should be carried out in an appropriate manner with
due respect for human dignity and for a legitimate purpose (Yankov
v. Bulgaria, no. 39084/97, § 166-176, ECHR
2003 XII (extracts); Wainwright v. the United Kingdom,
no. 12350/04, § 42, ECHR 2006 ...). Even single
instances of strip-searching have been found to amount to degrading
treatment in view of the manner in which the strip search was carried
out, the possibility that its aim was to humiliate and debase and the
lack of justification (see Valašinas v. Lithuania,
no. 44558/98, § 117, ECHR 2001 VIII). The Court
has also held that where an order to undress with a view to a search
had no established connection with the preservation of security and
prevention of crime or disorder, Article 3 may be engaged
(Wainwright, cited above, § 42; Wieser
v. Austria, no. 2293/03, § 40, 22 February
2007 where the applicant was undressed by police officers).
- The
Court cannot overlook the fact that the applicant was stripped naked
by three employees of the centre, one woman and two men. It has
already had occasion to observe, in a case where a male applicant was
ordered to strip naked in the presence of a female prison officer,
that her presence at the scene showed a clear lack of respect for the
applicant and in effect diminished his human dignity. The Court found
that it must have left him with feelings of anguish and inferiority
capable of humiliating and debasing him (see Valašinas,
cited above, § 117).
The
Court is of the view that the same considerations apply to the
situation of the applicant in the present case, and with all the more
force given that the two male members of the staff undressed her
forcibly.
-
However, of
greater concern to the Court is the fact that, in
response to her behaviour after she had been put into the patients'
room, the applicant was placed in restraining belts. The applicant
submitted that she subsequently remained in those belts until her
release the next morning, ten
hours later.
The Government have not contradicted her assertion in that
respect. It has not been argued that the relevant domestic
regulations governing the use of restraining belts were not complied
with (see paragraphs 27 – 29 above). Nevertheless, the
Government have not offered any justification for the length of time
during which the applicant remained immobilised on the instructions
of the staff of the centre. Even assuming, as the Government contend,
that the applicant was in “an average state of intoxication”
when brought to the centre, the duration of her restraint is a matter
of serious concern for the Court. It can accept that the aggressive
behaviour of an intoxicated individual may require recourse to the
use of restraining belts, provided of course that checks are
periodically carried out on the welfare of the individual so
immobilised. However,
in the
instant case no explanation has been given for the necessity of
placing the applicant in restraining belts for such an excessive
period of time.
The prolonged immobilisation of the applicant must have caused her
great distress and physical discomfort. The level of suffering
endured cannot be considered compatible with Article 3 standards.
- Having
regard to the circumstances of the applicant's case, the Court is of
the view that the conduct of the authorities can reasonably be said
to have amounted to degrading treatment contrary to Article 3.
- There
has accordingly been a substantive violation of Article 3 of the
Convention.
2. Alleged inadequacy of the investigation
- According
to the Court's established case-law, when an individual makes a
credible assertion that he has suffered treatment infringing
Article 3 at the hands of agents of the State, it is the duty of
the national authorities to carry out “an effective official
investigation” capable of establishing the facts and
identifying and punishing those responsible (see Slimani
v. France, no. 57671/00, §§ 30 and 31,
ECHR 2004-IX (extracts), and Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports, § 102).
What is more, the procedural requirements of Article 3 go beyond
the preliminary investigation stage; the proceedings as a whole,
including the trial stage, must meet the requirements of the
prohibition enshrined in Article 3. While there is no absolute
obligation for all prosecutions to result in conviction or in a
particular sentence, the national courts should not under any
circumstances be prepared to allow grave attacks on physical and
moral integrity to go unpunished (see Öneryıldız
v. Turkey [GC], no. 48939/99, § 95 –
96, ECHR 2004-XII), Salman v. Turkey [GC], no. 21986/93,
§ 104-109, ECHR 2000-VII; and Okkalı v. Turkey,
no. 52067/99, § 65, ECHR 2006-... (extracts)). This is
essential for maintaining the public's confidence in, and support
for, the rule of law and for preventing any appearance of the
authorities' tolerance of or collusion in unlawful acts (see, mutatis
mutandis, Öneryıldız, cited above, § 96).
59. The Court first
notes that the investigation of the applicant's complaint
lasted seven months, from January to August 2000. The prosecutor on
two occasions quashed decisions to discontinue the investigation,
considering that the conduct of the investigation had been flawed by
significant procedural shortcomings. In her appeals the applicant
complained about certain procedural shortcomings, such as the lack of
access to the case file and the lack of an opportunity of confronting
the witnesses, namely the staff of the centre. It is true that these
were remedied after the decisions of 1 January 2000 and 19 April
2000 had been quashed and the investigation resumed.
- Nonetheless,
the fact remains that the decision to discontinue the proceedings was
ultimately upheld by the court which found, as a matter of domestic
law, that there were no grounds on which to hold that a criminal
offence had been committed. In this connection, the Court cannot but
note that the focus of the investigation was on the justification for
depriving the applicant of her liberty and the use of force against
her in the centre. Although the applicant challenged the assertion
that she had been intoxicated and maintained that nothing in her
conduct had justified the decision to deprive her of her liberty, she
also complained that she had been brutally manhandled and stripped
naked by the staff of the centre in a manner which had humiliated her
and infringed her right to respect for her human dignity. For the
Court, the procedural obligation under Article 3 must be capable
of assessing whether the facts of which complaint is made cross the
threshold of treatment prohibited by Article 3. In the Court's view,
the authorities investigated her allegations in too narrow a
framework, and thus deprived themselves of the possibility of
assessing the proportionality of the force applied to the applicant
from the standpoint of Article 3 standards, namely the
justification for the forced removal of her clothing by two male
employees and the use of restraining belts to immobilise her until
the morning of 28 December 1999.
- The
Court therefore considers that the manner in which the case was
examined cannot be said to be compatible with the procedural
obligations of the State under Article 3
of the Convention.
- Accordingly,
there has been a violation of that provision under its procedural
limb.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained, relying on Article 5 of the Convention, that
her detention in the sobering-up centre had been unlawful. At the
time of her arrest she had not been intoxicated and had not caused
any disturbance of the public order, which under the applicable law
had been an essential prerequisite for such detention.
- The
Court notes that the applicant was deprived of her liberty “in
accordance with a procedure prescribed by law”, namely section
40 of the Law on Education in Sobriety and the Fight against
Alcoholism (see paragraphs 25-26 above). The domestic authorities
clearly confirmed that there was a basis in national law for the
applicant's detention, and the reasons given cannot be considered in
any way arbitrary.
- The
Court accordingly finds that the complaint does not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 50,000 Polish zlotys (PLN) in respect of the
non pecuniary damage which she had suffered as a result of the
humiliation and shock caused by the brutal treatment to which she had
been subjected during her detention.
- The
Government submitted that the applicant's claim was exorbitant given
that she had not been a victim of any violation of her rights
guaranteed by the Convention. In any event, they argued that in the
circumstances of the case a finding of a violation of the Convention
would in itself provide sufficient just satisfaction to the
applicant.
- The
Court is of the view that as a result of the circumstances of the
case the applicant must have experienced considerable anguish and
distress which cannot be made good by a mere finding of a violation
of the Convention. Having regard to the circumstances of the case
seen as a whole and deciding on an equitable basis, the Court awards
the applicant EUR 7,000 for non pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim for costs incurred in connection
with the case.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the applicant's complaint
regarding the alleged ill treatment and the failure to
investigate her allegation admissible, and the remainder of the
application inadmissible;
- Holds unanimously that there has been a
violation of Article 3 of the Convention under its substantive
limb;
- Holds by five votes to two that there has been a
violation of Article 3 of the Convention under its procedural
limb;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 7,000
(seven thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage, to be converted into Polish
zlotys at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 31 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint dissenting opinion of
Judges Garlicki and David Thór Björgvinsson is annexed to
this judgment.
N.B.
T.L.E.
JOINT DISSENTING OPINION OF JUDGES GARLICKI AND DAVID
THÓR BJÖRGVINSSON
To
our regret we cannot share the position of the Chamber as to the
inadequacy of the investigation.
As it
transpires from paragraph 60 of the Chamber judgment, the finding of
a procedural violation was linked to the fact that “the
authorities investigated [the applicant's] allegations in too narrow
a framework, and they deprived themselves of the possibility of
assessing the proportionality of the force applied to the applicant
from the standpoint of Article 3standards”.
Thus,
there is no reason to blame the authorities for not establishing the
basic facts of the case. In consequence, it would be difficult to
apply the usual finding that “the investigation was
superficial, lacked objectivity and ended in decisions which
contained conclusions unsupported by a careful analysis of the facts”
(see, for example, Lewandowski and Lewandowska v. Poland,
no. 15562/02, § 74, 13 January 2009; see also
Dzwonkowski v. Poland, no. 46702/99, § 66,
12 April 2007). It seems that, in the opinion of the Chamber,
the violation resulted firstly from the fact that the “human
dignity” aspect of the applicant's claim had not been
separately assessed and addressed by the authorities and, secondly,
from the fact that the investigation did not lead to any criminal
charges against the personnel of the sobering-up centre.
We
are not convinced that the investigation did not take into account
the applicant's claims concerning infringements of her dignity. This
aspect of the case was addressed initially in the decision of the
regional prosecutor (7 June 2000) quashing the original decision
to discontinue the investigation. The prosecutor observed that “any
final decision in the case must formally address all the acts
reported by the applicant, [hence also] the infringement of her
dignity (inter alia, by stripping her naked)”. The district
prosecutor, in the decision of 2 August 2000, followed that
instruction but concluded, with reference to the applicant's
complaint that the officers of the sobering-up centre had behaved in
a manner violating her honour and dignity, that account should be
taken of the fact that the applicant herself had the right to lodge a
private bill of indictment in respect of that claim. Thus, the “human
dignity” aspect did not escape the attention of the
authorities, even if their conclusion was that all the measures taken
in the sobering-up centre had been lawful and that, therefore, there
was no ground to proceed with criminal charges.
It is
true that the Court's assessment of the facts was different and that
we found that the measures applied to the applicant had been
disproportionately harsh. But this difference relates to the
substantive aspect of the case and led to our finding of a
substantive violation of Article 3. It cannot be carried over
into the procedural assessment of the case. The domestic authorities
could hardly be blamed for applying domestic standards of lawfulness
and for concluding that a lawful action cannot lead to a criminal
charge. It should not be forgotten that the nature of States'
responsibilities under international law differs from that of the
criminal liability of individuals. Thus, a violation of the
Convention must not necessarily translate in each and every case into
criminal proceedings against the person responsible.
