JOZEF WOS v. POLAND - 6058/10 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 582 (28 June 2016)

In the case of Józef Woś v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          András Sajó, President,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Iulia Motoc,
          Gabriele Kucsko-Stadlmayer,
          Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 7 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 6058/10) 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, Mr Józef Kazimierz Woś (“the applicant”), on 26 January 2010.

2. The applicant was represented by Mr Z. Cichoń, a lawyer practising in Cracow. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that the police had used excessive force at the time of his arrest.

4. On 2 April 2015 the complaints concerning the use of force by the police and the quality of the investigation before the domestic authorities were communicated to the Government. The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1966 and lives in Węglówka.

A. Events on 26 January 2009

6. At about 5 p.m. on 26 January 2009 the applicant and his wife went by car from their home to another village. The applicant’s wife was driving. The car had been borrowed from the applicant’s friend. On a narrow section of the road they saw a police car trying to stop another car. The applicant’s wife, who apparently considered it an unsafe place to stop other cars, overtook the police vehicle and sounded the horn, though she claims to have done this by accident.

7. While being overtaken, the police officers 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 to inspect it.

8. 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. According to the applicant, he read the contents of the registration document aloud to the officers. 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 at the side of the road. He then requested that they all drive to the police station because he wanted to speak to the officers’ supervisor. They all drove to the police station in Jabłonka, but there was no one there, so the police officers continued the inspection on the street outside.

9. They found that, apart from the light that did not work, the fire extinguisher in the car was too small. They wanted to fine the applicant’s wife 200 Polish zlotys (PLN). The applicant then told her: “do not sign anything for those beggars” (“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.

10. According to the applicant, by that time the “routine” inspection had already lasted for about two hours, and he and his wife were getting nervous. His wife began to cry because the officers wanted to take her to the police station for questioning. The policemen repeated “this will cost a lot” each time they found a fault with the car. He therefore considered that they wanted him to bribe them 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 officers claimed that the applicant had been disturbing their routine activities. As established by the domestic courts in the set of proceedings against the police officers, when one of the police officers had told the applicant that he would be arrested, the applicant pushed the police officer and started to run away.

11. As established by the domestic courts in the set of proceedings against the applicant, on the basis of the testimony of the policemen, after the comment made by the applicant the police officers tried to apprehend him, however he resisted arrest and moved a few steps back. Officer J.B. then forcefully put the applicant onto the ground and pressed down on him with his knee. The applicant continued to resist and try to get away and then kicked J.B. several times in his left leg. The other officer, D.B., then used pepper spray against him. When the applicant calmed down he was handcuffed.

12. The applicant was subsequently taken to the police station. 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 so he was taken to Nowy Targ. After examination he was placed in police custody (Policyjna Izba Zatrzymań). He was released the following day. Apparently after his release he was examined again in a hospital in Myślenice.

13. The relevant notes from the hospitals, in so far as they were legible, contained the following information.

14. Notes by the Nowy Targ Hospital on 26 January 2009 read:

“Skin bruising on the right hand. Chemical burn to the right eye.”

15. A document dated 27 January 2009 confirming the applicant’s release from the Myślenice Hospital read:

“He claims that yesterday he was beaten up by the police officers who used pepper spray on him. Skin bruising on the right hand, chemical burn to the right eye, reddish conjunctivitis in the right eye.”

16. The applicant also submitted a copy of a medical certificate requesting that he be examined by an ophthalmologist, because of “burns from pepper spray”. The note was marked “urgent” but bore no date.

B. Proceedings concerning the applicant’s arrest

17. On 28 January 2009 the applicant lodged a complaint about his arrest with the Nowy Targ District Court (“the District Court”). He submitted that he had been apprehended by force and put onto the ground, that the police had used a whole container of pepper spray and that he had many scratches and bruises. He had been released from the police custody facility at about midday and let out by the back door without a jacket or any money. He had had to walk until he had found a taxi driver who had agreed to give him a lift and call his wife, who had apparently been waiting at the police station since 10 a.m. and had had no idea that he had been released and let out by the back door.

18. On 4 February 2009 the District Court refused to allow the applicant’s complaint. It found that in his complaint he had presented “his own version of events” and that his 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 testimony of a witness to the events in question”. The court also considered that at the moment of the arrest there were grounds to suspect the applicant of having committed the offence referred to in Article 226 § 1 of the Criminal Code and there were grounds to bring proceedings against him in an expedited manner.

Having examined the grounds, legality and appropriateness of the applicant’s arrest, the court found no shortcomings. It appears that the court did not hear evidence from any witnesses; it based its findings on a note made by the police and the arrest and examination records.

The court did not refer to the applicant’s allegations as regards the use of excessive force by the police.

C. Proceedings against the applicant

19. On 22 February 2009 the police lodged an indictment against the applicant with the District Court. He was charged with offending police officers on duty and breaching the personal inviolability of a police officer by kicking him. On 8 April 2009 in his reply to the bill of indictment, when describing the “kicking” he stated that these could have been involuntary movements as he had been pushed to the ground and pressed down on with a police officer’s knee and pepper spray had been directed into his face. He submitted that he had not intended to hit anybody.

20. On 28 May 2009 the District Court found the applicant guilty as charged and conditionally discontinued the proceedings against him. The court held that in his statements the applicant had not actually denied kicking the police officer J.B. as he could not rule out that he had made the movements with his legs involuntarily, without the intention of hitting anybody. He was also ordered to pay PLN 200 to charity and the costs of the proceedings.

21. On 24 July 2009 the applicant appealed. He submitted that he did not feel guilty; on the contrary, he had been a victim. He also considered that he could not have violated anybody’s personal inviolability because he had been pressed against the ground and two officers had been sitting on his back trying to handcuff him.

22. 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 the resulting harm to the public was insignificant (znikoma szkodliwość społeczna czynu).

D. Proceedings against the police officers

23. On 28 January 2009 the applicant reported the two police officers who had arrested him on 26 January 2009 to the Nowy Targ District Prosecutor for abuse of power.

24. On 25 February 2009 the District Prosecutor opened an investigation into their alleged abuse of power.

25. On 11 March 2009 the applicant and his wife were questioned. On 9 April 2009 the prosecutor questioned officers D.B. and J.B.

26. On 16 April 2009 the District Prosecutor discontinued the investigation, finding that no offence of abuse of power had been committed. Referring to the relevant provisions of domestic law, in particular the 1990 Police Act, the prosecutor found that the police had had the right to use force because “the applicant had not obeyed their orders, had behaved nervously and had tried to run away”.

27. The applicant appealed. He argued, among other things, that the prosecutor had not properly examined the circumstances of the case; the officers had apprehended him for no legal reason. The applicant admitted that he had been nervous because of the inspection which had lasted for about two hours, but considered that this could not have been the basis for his arrest. He further submitted that the officers had used excessive force, inappropriate in the circumstances; they had put him onto the ground with his face down and had sat on his back and used pepper spray to incapacitate him. He had had injuries afterwards and had to take over a month’s sick leave. He also referred to the circumstances of his release from the police station and the fact that his wife, who had been waiting there for him, had not been informed that he had left by the back door.

28. On 12 August 2009 the District Court upheld the challenged decision discontinuing the investigation. It found that the applicant had again repeated his version of events which the prosecutor had found not to be credible. The court did not refer in any way to his submissions as regards his injuries. It found that the “circumstances of the applicant’s arrest [had already been] examined because the applicant had complained about his arrest and his complaint [had been] 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”.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Code of Criminal Procedure

29. Article 244 § 1 reads:

“The police shall be authorised to arrest a suspected person if there is good reason to believe that he has committed an offence and it is feared that [he] may go into hiding or destroy evidence of his offence or if his identity cannot be established or there are grounds to carry out expedited proceedings against that person.”

30. Article 246 § 1 reads:

“The arrested person shall have the right to lodge an interlocutory appeal with the court. In [it he] may request an examination of the grounds, legality and appropriateness of his arrest.”

B. Use of force by the police

31. 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.

32. Section 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.

THE LAW

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

33. The applicant complained that he had been ill-treated in the course of his arrest and that the investigation into the alleged ill-treatment had not been conducted in accordance with the standards required by Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

34. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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 by the police

(a) The applicant’s submissions

35. The applicant’s lawyer submitted in general terms that Article 3 had been violated by the police officers who had used excessive force, disproportionate to the circumstances of the case. Furthermore, he complained that the Government had failed to prove that the police’s reaction had been justified.

(b) The Government’s submissions

36. The Government submitted that the applicant had not been subjected to inhuman or degrading treatment within the meaning of Article 3 of the Convention and that the use of force by the police had been appropriate and proportionate.

They further pointed out that the applicant had provoked the police’s reaction by acting aggressively, using offensive language, refusing to comply with the officer’s orders and, lastly, by resisting arrest and attempting to escape.

He had been warned that pepper spray and further coercive measures would be used against him if he persisted in refusing to follow the police officers’ orders - only then had he been apprehended. However, as the evidence obtained in the investigation against the police officers showed, the force used had not been disproportionate and the police officers had not abused their powers. The use of force had been made necessary by the applicant’s own aggressive conduct. He had first offended the police officers, failed to obey their orders and had then behaved nervously, trying to escape and infringing the personal inviolability of one of them.

37. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI).

38. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3. It should also be pointed out that it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others (see Bouyid v. Belgium [GC], no. 23380/09, §§ 86-87, ECHR 2015).

39. Where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny. Where domestic proceedings have taken place, however, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by them (see ibid., § 85 and Gäfgen v. Germany [GC], no. 22978/05, § 93, ECHR 2010).

40. Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” and adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX and Bouyid, cited above, § 82).

41. The Court reiterates that where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). The same principle applies to alleged ill-treatment resulting in injury which takes place in the course of an applicant’s arrest (see Mikiashvili v. Georgia, no. 18996/06, § 69, 9 October 2012 and Mafalani v. Croatia, no. 32325/13, § 119, 9 July 2015).

42. According to the Court’s case-law, Article 3 does not prohibit the use of force for the purposes of effecting an arrest. However, such force may be used only if indispensable and must not be excessive (see, among other authorities, Rehbock v. Slovenia, no. 29462/95, §§ 68-78, ECHR 2000-XII; Zalevskiy v. Ukraine, no. 3466/09, § 59, 16 October 2014). 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 an infringement of the right set forth in Article 3 (see Bouyid, cited above, § 101).

43. The Court observes that the parties did not dispute that the impugned injuries were caused by the police officers, using physical force. The parties disagreed however as to whether the means employed by the police were proportionate to the circumstances of the case.

44. The Court observes that the applicant was apprehended in the course of an operation giving rise to unexpected developments to which the police were called upon to react. Furthermore, account must be taken of the fact that the applicant effectively resisted the legitimate actions of the police officers, by resisting their attempts to apprehend him and by kicking and trying to get away.

45. The Court notes in addition that the applicant’s injuries were not very serious. From the documents submitted by him, it appears that he had “skin bruising on the right hand” and a “chemical burn to the right eye” (see paragraph 14 above). This being so, the applicant’s allegations that he had to take over a month’s sick leave (see paragraph 27 above) was not supported by any evidence. Nor was there anything to support the applicant’s allegations (see paragraph 17 above) that the police had used a whole container of pepper spray on his face and that he had many scratches and bruises (compare and contrast with Tali v. Estonia, no. 66393/10, § 78, 13 February 2014). Indeed, after the event the applicant was examined by a doctor in a hospital apparently not for reasons directly related to the alleged use of excessive force by the police but for heart problems. He did not need hospitalisation and after the medical examination he was placed in police custody (see paragraph 12 above). The Court further notes that no other material has been adduced in the course of the proceedings before it which could call into question the findings of fact of the domestic authorities and add weight to the applicant’s allegations.

46. In these circumstances, the Court considers that the recourse to physical force in this case was made strictly necessary by the applicant’s own conduct and was not excessive. Therefore, while the applicant must have suffered as a result of the incident of 26 January 2009, the level of his suffering did not go beyond the inevitable element of suffering connected with the legitimate and lawful arrest of an aggressively behaving person. Likewise, there was no element of humiliation or debasement in the applicant’s treatment.

47. There has, accordingly, been no violation of Article 3 of the Convention with regard to the alleged ill-treatment by the police on 26 January 2009.

2. Adequacy of the investigation

(a) The applicant’s submissions

48. The applicant’s lawyer did not make any comments as regards the adequacy of the investigation in the present case.

(b) The Government’s submissions

49. The Government contended that the investigation and judicial proceedings in the present case had complied with Article 3 requirements. They argued that the proceedings had been prompt, thorough and effective and had been conducted by an independent and impartial body which had promptly undertaken all the necessary activities.

All the evidence necessary to clarify the circumstances of the case had been taken. The findings of the prosecutor had subsequently been endorsed by the District Court which, on 12 August 2009, had upheld the prosecutor’s decision discontinuing the investigation.

50. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible (see, among other authorities, Labita, cited above, § 131). The investigation into arguable allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, § 103 et seq.).

51. In the Labita case, the Court found a violation of Article 3 on the grounds that the authorities had not investigated the alleged numerous acts of violence, humiliation and other forms of torture inflicted on an applicant. It must be noted however that in that case, the Court’s conclusion was reached on account of the manifest inactivity of the authorities regarding the investigation of that applicant’s complaints (ibid., §§ 117-136).

52. By contrast, in the present case, the circumstances of which were not particularly complex, the Court considers that the domestic authorities did everything which they could reasonably have been expected to do. In particular, everybody who participated in the event on 26 January 2009 was questioned and the course of events was sufficiently established.

53. Subsequently, the prosecution decided not to charge the officers and to discontinue the investigation, holding that no offence of abuse of power had been committed. The investigation by the District Prosecutor was completed on 16 April 2009 - less than three months after the impugned events and some two months after the investigation had been opened (see paragraphs 24 and 26 above), a period which can in no way be considered excessively long.

54. Furthermore, the applicant subsequently had the opportunity to have the decision of the District Prosecutor reviewed before the court. The fact that his appeal was unsuccessful cannot be considered pertinent. There is no evidence that the prosecution should have taken any other steps in order to establish the facts alleged by the applicant. Nor is there any indication that the prosecutor used his statutory discretion - which allows him to evaluate the material before him in order to decide whether or not to charge the alleged perpetrators with a criminal offence - in an arbitrary manner.

55. The Court further notes that the circumstances of the present case were examined independently in another set of proceedings, namely those against the applicant. In that case also the judgment given by the first-instance court was subject to judicial review and the proceedings were eventually discontinued (see paragraph 22 above).

56. Taking into consideration all the above circumstances, the Court concludes that the investigation into the applicant’s allegations of ill-treatment was thorough, effective and conducted in an expeditious manner. There has thus been no breach of Article 3 of the Convention in this respect.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 3 of the Convention under either its substantial or procedural limb.

Done in English, and notified in writing on 28 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli András Sajó
Registrar President

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