FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 69122/01
by Jan BERNATOWICZ
against Poland
The European Court of Human Rights (Fourth Section), sitting on 12 January 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 14 November 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr J. Bernatowicz, is a Polish national who was born in 1947 and lives in Płock. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was arrested by the police in the late evening of 5 April 2000. According to the arrest report, he was detained in connection with insults proffered over the telephone against police officers at the local police station in calls made earlier that evening from the headquarters of the Mazowiecka Milk Co-operative in Płock.
A police officer who was on duty that day had written a memo according to which, at around 8.05 p.m., a man had called the police station, talked to that officer in a vulgar and abusive way and uttered inarticulate threats. The officer knew the telephone number and thought that he recognised the voice of the man calling to be that of the co-operative’s president, A.L., who was later arrested together with the applicant. The officer noted that this telephone call was not the first one that evening. Another police officer, who had worked a previous shift, had received similar calls.
According to another memo written by another police officer, the police went to the co-operative’s headquarters twice. The first time was at around 7.30 p.m., when two officers had found no one in the building. The second time, they found two men who had locked themselves in one of the offices and refused to open the door. Officer K.K. entered through the balcony door. The men were asked to identify themselves but refused to do so or to show their ID cards. One of them behaved in an aggressive manner.
Both men were then taken to the police station, where their identity was established on the basis of their identity cards. The man who had acted aggressively at the time of the arrest turned out to be A.L. and the other man was the applicant.
The applicant submitted that, before they had been taken to the police station, they had been driven around the city in a police car for a long period of time.
At the police station, half an hour after the police’s arrival at the co‑operative’s building, between 9 and 10 p.m., the applicant was informed that he had been arrested in connection with insults proffered against police officers over the telephone in a call from the co-operative’s headquarters shortly before the arrests were made.
At the police station a breathalyser test was taken. It showed 1.21‰ alcohol in the applicant’s blood.
The applicant was released on 6 April 2000.
On that day the applicant learned that news about his arrest had been broadcast by a local radio station. The same information reached some of the members of the co‑operative and was later reported in one of the local newspapers.
On 17 April 2000 the applicant complained to the Płock Regional Public Prosecutor about his arrest and about alleged ill-treatment by the police. He also raised a complaint regarding an alleged violation of his personal rights, claiming that information about the arrest had been wrongfully disclosed by the police to the public. In a decision of 19 May 2000 the prosecutor replied to his complaint, explaining that he had not found any breach of the applicable laws and that the applicant’s detention had been fully justified. The delay in taking the applicant and A.L. to the police station after he had been arrested had resulted solely from the need to drive one of the police officers home at the end of his shift and did not amount to any attempt at kidnapping, as the applicant had argued. The prosecutor concluded that, if the applicant considered that his personal rights had been breached, he could file an action for compensation with a civil court.
On 13 April 2000 the applicant lodged a further complaint with the Płock District Court, alleging that his detention had been unlawful.
On 18 May 2000 the Płock District Court held that the applicant’s arrest and detention had been executed in compliance with the applicable laws. The court found that the applicant and A. L. had been the only persons at the co-operative’s headquarters at the time of the arrest and, consequently, the only persons who could have had access to the telephone from which the insulting calls to the police station had been made. The court noted that one of the police officers had recognised the voice of A.L., whom he knew, and had been convinced that it was he who had made the insults over the telephone. The court also found that the applicant had failed to cooperate with the police by locking the door and, together with the other suspect, refusing to disclose their names to the officers. The breathalyser test had subsequently shown an alcohol level of 1.21‰ in the applicant’s blood.
The court concluded that the circumstances of the arrest were such that it could be reasonably concluded that the applicant had committed an offence and had to be arrested to prevent his absconding. There was no indication of any ill-treatment which the applicant had allegedly suffered. It further noted that the suspects had been released as soon as the necessary evidence concerning the incident had been gathered.
The applicant appealed against the District Court’s decision, but on 18 July 2000 he was informed that no further appeal was available in law.
On 31 January 2001 the Płock District Prosecutor discontinued an investigation into the applicant’s allegations that the police officers had committed a criminal offence, namely, the abuse of an official position. The prosecutor found no indication that a criminal offence had been committed in connection with the events of 5 and 6 April 2000. The applicant appealed. On 10 May 2001 the Płock District Court allowed his appeal in so far as he complained about the alleged leak of information about his arrest to the local press.
Subsequently, this part of the applicant’s complaint was investigated again. On 21 June 2001 the Płock District Prosecutor discontinued the investigation. All police officers involved in the events of 5 and 6 April 2000 were questioned. They denied any involvement in informing any journalists about the applicant’s arrest. The applicant did not appeal.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure of 1997 dealing with coercive measures read, in so far as relevant:
“Article 244 § 1. The police shall be authorised to arrest a suspect if there is good reason to believe that he or she has committed an offence, and it is feared that he or she may go into hiding or destroy the evidence of his or her offence or if his or her identity cannot be established.
§ 2. The arrested person shall be informed immediately of the reasons for his or her arrest and his or her rights and his or her explanations shall be heard.
§ 3. A record of the arrest shall be made in which the following shall be included: the first name, surname and position of the arresting officer, the first name and surname of the arrested person, and in the event that the identity of the arrested person cannot be established, a description of the said person, and the date, hour, place and reason for the arrest, and act of which he or she is suspected. Any statements by the arrested person shall also be recorded and the fact noted that he or she has been reminded of his or her rights. A copy of the record shall be served on the arrested person.
§ 4. As soon as possible after the arrest of the suspect, the measures necessary for the collection of essential information shall be taken; and, in the event that the grounds referred to in Article 258 § 1 to 3 occur, an application to the state prosecutor shall be made, requesting him or her to obtain a preliminary detention order from the court.
Article 246 § 1. The arrested person shall have the right to lodge an interlocutory appeal with the court. In this appeal the arrested person may request an examination of the grounds and legality of his or her arrest and the correctness of the arrest procedure.
Article 248 § 1. The arrested person shall be released without delay after the reasons for his or her arrest have ceased to exist, and also, when he or she has not been handed over to the court, within forty-eight hours of his or her arrest by an authorised agency, together with an application for preliminary detention; he or she shall also be released upon an order from the court or state prosecutor.
§ 2. If, within forty-eight hours of the arrested person being handed over to the court a copy of the order for his or her preliminary detention has not been served on him or her, he or she shall be released.”
Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for unjustified conviction, detention on remand or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty. Article 552 of the Code provides, in so far as relevant:
“1. An accused who, as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the pecuniary and non-pecuniary damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him.
...
4. Entitlement to compensation for pecuniary and non-pecuniary damage shall also arise in the event of manifestly unjustified arrest or detention on remand.”
COMPLAINTS
The applicant complained under Article 3 of the Convention that he had been ill-treated upon his arrest and that the police officers had used disproportionate force against him by pushing him into the police car.
The applicant also complained that his deprivation of liberty had been unlawful and lacked any justification. One of the police officers had recognised the voice of the person who had made the alleged telephone calls, but it was not the applicant’s. Therefore, there had never been a “reasonable suspicion” against him such as to justify his arrest. In the applicant’s opinion, his behaviour had not given sufficient grounds for a finding that he had disturbed public order in such a manner as to justify the decision to arrest him. He also complained about the police’s failure to inform him promptly about the nature and cause of the accusation against him.
The applicant further alleged that the police officers had not complied with the procedural rules governing the taking of evidence. In particular, he complained that his arrest report had wrongly indicated the time of the police officers’ actions.
Finally, the applicant complained, under Article 8 of the Convention, of the wrongful disclosure of information concerning his detention.
THE LAW
The applicant complained under Article 5 § 1 of the Convention that his detention had been unjustified.
Article 5 § 1 (c) reads:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”
1. The Government’s submissions
The Government submitted that the applicant had failed to exhaust all the remedies provided by Polish law. Namely, he had not lodged, within a year of his release from detention, an application for compensation and redress for the allegedly manifestly unjustified arrest, which was a remedy provided for in Article 552 § 4 of the Code of Criminal Procedure.
The Government did not express an opinion on the merits of the application.
2. The applicant’s submissions
The applicant objected to the Government’s submissions and submitted that the deprivation of liberty had been unlawful and lacked any justification. He maintained that the Government had not submitted any concrete information or evidence to confirm the “reasonableness” of the suspicion on which his arrest had been based.
3. The Court’s assessment
a. The Government’s plea of non-exhaustion
The Court observes at the outset that the applicant’s detention was examined in the proceedings instituted by the applicant before the Płock District Court under Article 246 § 1 of the Code of Criminal Procedure, applicable at that time, which specifically provided for such a retrospective examination of the lawfulness of an arrest.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness (see, among many other authorities, Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996‑IV).
The Court further reiterates that, under the Convention institutions’ case‑law, where lawfulness of detention is concerned, an action for compensation for unlawful arrest is not a remedy which has to be exhausted because the right to have the lawfulness of detention examined by a court and the right to obtain compensation for any deprivation of liberty incompatible with Article 5 are two separate rights (see Zdebski, Zdebska and Zdebska v. Poland (dec.), no. 27748/95, 6 April 2000; Imre v. Hungary (dec.), no. 53129/99, 4 March 2002).
The Court observes that under Article 5 the applicant complains of the unlawfulness of his arrest and his subsequent detention, not that he had no legal remedies whereby he could obtain compensation for detention. The applicant’s complaint therefore goes to Article 5 § 1 of the Convention, whereas the remedy mentioned by the Government, an application for compensation for manifestly unjustified arrest or detention under Article 552 § 4 of the Code of Criminal Procedure, concerns Article 5 § 5 only (see Nowicka v. Poland (dec.). no. 30218/96, 16 October 2001). Moreover, it is not a remedy whereby an arrested or detained person can challenge the legal or factual grounds for arrest or detention (see G.K. v. Poland (dec.), no. 38816/97, 12 November 2002).
Such a remedy cannot, therefore, be considered as effective for the purposes of Article 35 § 1 of the Convention in respect of the applicant’s complaint under Article 5 § 1.
Accordingly, the Government’s plea of non-exhaustion of domestic remedies must be rejected.
b. Merits
The Court further reiterates that Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty which must be interpreted strictly (see, for instance, Ciulla v. Italy, 22 February 1989, § 41, Series A no. 148). A person may be detained under Article 5 § 1 (c) only for the purpose of bringing him or her before the competent legal authority on a reasonable suspicion that he or she has committed an offence (see Jėčius v. Lithuania, no. 34578/97, § 50, ECHR 2000-IX).
The “reasonableness” of the suspicion on which an arrest must be based forms an essential element of the safeguard against arbitrary arrest and detention. Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182). The question is whether the arrest and detention were based on sufficient objective elements to justify a “reasonable suspicion” that the facts at issue had actually occurred and amounted to a criminal offence (see Włoch v. Poland, no. 27785/95, §§ 108-09, ECHR 2000-XI).
As to the level of “suspicion”, Article 5 § 1 (c) of the Convention does not presuppose that the investigating authorities should have obtained sufficient evidence to bring charges, either at the time of the arrest or while the arrested person is in custody. The object of questioning during detention under Article 5 § 1 (c) of the Convention is to further the criminal investigation by way of confirming or dispelling the concrete suspicion grounding the arrest. Thus, the facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see Murray v. the United Kingdom, 28 October 1994, §§ 55 and 57, Series A no. 300‑A).
The Court must consider whether the applicant’s detention was based on a “reasonable suspicion” of his having committed an offence.
The Court notes that the applicant was arrested by the police, not in the context of any ongoing criminal investigation against him, but merely the purpose of establishing the facts which, at the material time, had given rise to a suspicion that an offence could have been committed. He was arrested together with A.L., in the context of insults having been made in repeated abusive telephone calls made to the police station. A memo concerning these calls was written by the police officer on duty on the material day. This memo referred to similar calls which had been received by another officer on duty earlier that day. One of the officers thought that he recognised A.L.’s voice. When the police arrived at the scene for the second time, there was no one in the building except for the applicant and A.L. The latter refused to open the door to the office and, subsequently, refused to show their identity cards. They were drunk at the time. They were subsequently taken to the police station where their identity was established. The police released them the next day, well before the expiry of the forty‑eight hour time‑limit provided for by Polish law in respect of arrest ordered by the police without a judicial decision.
After the applicant had been released, his complaint about the allegedly unlawful arrest was examined by the District Court, which found it justified and effected in compliance with the law. Subsequently, the authorities also examined the applicant’s complaint about the alleged offence of abuse of authority committed by the police and found no grounds on which to assert that a criminal offence had been committed in connection with the applicant’s arrest. The Court considers that there was nothing in the reasoning of the domestic authorities which could be regarded as arbitrary or unreasonable, or as lacking a factual basis, so as to render the applicant’s detention unlawful.
In the light of all the material in its possession, the Court does not find any indication that the applicant’s detention was unlawful or ordered otherwise than "in accordance with a procedure prescribed by law", within the meaning of Article 5 § 1. The Court therefore considers that it was ordered and confirmed in accordance with domestic law and fell within the ambit of Article 5 § 1(c) of the Convention, as having been effected for the purpose of bringing him before the competent legal authority on suspicion of having committed an offence.
It follows that the complaint under Article 5 § 1 is inadmissible as being manifestly ill‑founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
The applicant complained under Article 3 of the Convention that he had been ill‑treated upon his arrest.
The Court observes that the applicant did not seek medical assistance with a view to establishing whether he had suffered any injuries as a result of the treatment complained of, either immediately after his release or later on. It is further noted that the domestic court did not find any indication that the applicant had suffered any ill‑treatment at the hands of the police upon his arrest. Against this background and in the absence of any medical findings relating to the applicant’s condition upon his release, the Court finds that the applicant has not substantiated his allegation that he was the victim of treatment in breach of Article 3 of the Convention.
Therefore, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The applicant further complained that the circumstances of his arrest and their subsequent disclosure to the press had constituted a violation of his rights guaranteed by Article 8 of the Convention.
The Court observes that the applicant did not appeal to the higher prosecutor against the decision of the Płock Regional Prosecutor of 21 June 2001 which had discontinued the investigation into his complaint. Ultimately, an appeal to a court was available against the decision of the prosecuting authorities to discontinue the investigation.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy