Communicated on 18 May 2015
Notified to the parties on 8 September 2015
FIFTH SECTION
Application no. 9264/15
B.Ü.
against the Czech Republic
lodged on 17 February 2015
STATEMENT OF FACTS
The applicant, Mr B.Ü., is a Turkish national, who was born in 1975 and is detained in the Prague-Ruzyně remand prison. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Mr M. Matiaško, a lawyer practising in Prague.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 16 October 2013, the applicant, who had previously applied for asylum in the Czech Republic, was removed from Switzerland to the Czech Republic pursuant to the Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”).
Upon his arrival to the Prague airport at 11.30 a.m., he was taken into custody by the decision of the Prague Aliens Police Directorate issued under the Police Act (no. 273/2008). He was held in the premises of the Aliens Police until his transfer to the Motol Hospital in the course of the night.
1. The applicant’s version of the events
The applicant asserts that, before having been placed into the cell, he was subjected to a strip search by two policemen. After some time spent in the cell he was brought into the interrogation room where he was interviewed in the presence of an interpreter and informed that he would be transferred into another facility; he was also authorized to buy some food, have a cigarette and take his medicines. Several minutes after he had been returned to the cell he was strip-searched again in the premises near the toilets. Then he had slept in the cell until a policeman woke him up and brought him in the same premises. Fearing another strip search, the applicant tried to explain him that it would be a third personal search within several hours. The policeman told him to shut up and hit him in the jaw bone with his fist, then in the belly with a truncheon. When the applicant screamed with pain, two other policemen arrived and started to kick him and beat him with truncheons. He then escaped to the toilets where he locked himself up, which made the policemen use pepper spray. Unable to breath and with his eyes closed, the applicant fell on a mirror. When the policemen got in, they beat him up and dragged him out of the toilets. At that moment the applicant lost conscience. He woke up, covered with blood and tightly handcuffed, while the policemen were trying to put him into a wheel chair in order to get him into an ambulance, in front of passing travellers. When he cried for help they beat him again with truncheons.
Afterwards the applicant was transferred, still handcuffed, to the Motol Hospital where he underwent several medical examinations. According to the medical certificates, which stated that he was very aggressive, he was diagnosed with fracture of nasal bones, contusions of the chest and a small laceration on the head.
On 17 October 2013, upon the decision of the Prague Aliens Police Directorate issued under Aliens’ Residence Act (no. 326/1999), which was not served on him, the applicant was transferred into a detention facility for foreigners in Bělá Jezová. He was placed, under a strict regime, into an individual cell of approximately 3 m2 where he was isolated from the others. On the same day between 6.30 and 6.57 p.m., feeling humiliated and desperate, he attempted to hang himself in his cell. After being brought back to life by the emergency personnel, he was brought to the Mladá Boleslav Hospital for a medical examination and then to the Kosmonosy Psychiatric Hospital for a psychiatric examination. Due to his aggressive behavior and lack of cooperation he was not admitted for an in-house observation in the latter hospital and was returned to Bělá Jezová. The psychiatrist noted in her report that it could not be excluded that the applicant would repeat his purposeful behavior, given his state of tension resulting from the nicotine deprivation.
On 25 October 2013, the applicant was moved from the strict regime department to the common detention facility of Bělá Jezová. On the same day, the police set aside the facility’s criminal complaint concerning a possible assistance to the applicant’s suicide.
2. Procedural steps taken by the applicant
On 27 November 2013, the applicant lodged a criminal complaint with the General Inspection of Security Forces (hereafter “the GISF”). He described his alleged ill-treatment in the police custody, which he proposed to substantiate by his hearing and by a recording from the airport security camera. He also complained that despite him being in a bad health and in a bad mental state, he had been placed under a strict regime in the detention facility where he had attempted to commit suicide.
By a letter of 10 January 2014, he was informed about the closure of the investigation by the GISF. The letter stated that the investigation did not disclose any facts capable of leading to the conclusion that the members of the Prague Aliens Police Directorate had committed any misbehavior.
On 21 January 2014, the applicant asked the prosecutor to review the GISF’s conduct. He observed that the GISF had not taken necessary steps to establish the facts and had not heard him. He also asked for access to the relevant file.
On 20 February 2014, the applicant was informed by the Prague Municipal Prosecutor that since there had been no criminal proceedings, he did not enjoy the rights of a victim and could not consult the file. He was also informed that the GISF had been asked to complete the file by 5 April 2014.
On 24 April 2014, the Prague Municipal Prosecutor informed the applicant that he had set aside his request. Having taken into account the applicant’s allegations as well as the information established by the GISF’s investigation (lack of objective evidence of a disproportionate violence of the policemen, the applicant’s unsubstantiated allegations of injuries and his aggressive behavior), he had not found any reason to intervene pursuant to the Code of Criminal Procedure. However, this did not prevent the applicant from claiming damages in civil or administrative proceedings.
On 11 March 2014, the applicant filed a constitutional appeal challenging several interferences of the State authorities, namely the ill-treatment by the members of Prague Aliens Police, the latter’s decision to detain him under a strict regime and the GISF’s response to his criminal complaint, which violated his rights under Articles 3 (both substantive and procedural aspects), 5, 8 and 14 of the Convention.
By decision no. IV. ÚS 936/14 of 4 August 2014 (served on 20 August 2014), the Constitutional Court dismissed the applicant’s constitutional appeal as being manifestly ill-founded. It noted that it resulted from the investigation that the applicant had had, after being placed in custody, self-destructive tendencies and that he had fractured his nasal bones by hitting a mirror. He had sustained other injuries while being pacified by the policemen and, the following day, he had attempted to commit suicide. The applicant’s aggressiveness and the need for constant control, together with the psychiatric hospital’s recommendation, had led to him being temporarily isolated from the others. The Constitutional Court further observed that the GISF had not found the applicant’s version of events credible and that the Prague Municipal Prosecutor had not found any failure in the GISF’s conduct. The mere disapproval of the applicant with the conclusions of the competent authorities did not prove that his fundamental rights had been interfered with by the authorities.
On 15 April 2014 the applicant asked the Ministry of the Interior under Act no. 82/1998 to award him compensation of the moral damage caused by the authorities’ ill-treatment.
On 6 October 2014 the Ministry rejected his request, noting that according to the file there had been no irregular conduct of the police.
On 8 October 2014, the applicant instituted civil proceedings against the State under Act no. 82/1998, requesting compensation amounting to CZK 500.000. His action is pending before the Prague 7 District Court.
B. Relevant domestic law
Act no. 341/2011 on the General Inspection of Security Forces
Pursuant to Section 1 §§ 1-4, the General Inspection of Security Forces is an armed security corps, headed by a director. The latter is appointed and revoked, on the demand of the Government and after examination by the security committee of the Chamber of Deputies, by the Prime Minister to whom he is responsible. The GISF forms an organizational part of the State and a budgetary unit whose receipts and expenses constitute an independent chapter of the State budget.
Section 2 provides that the GISF’s task is to seek for, reveal and verify the facts showing that a criminal offence was committed by a policeman, and to investigate such offence.
COMPLAINTS
1. The applicant complains that the policemen’s actions aimed at him at the airport, namely repeated strip search, physical assault, use of pepper spray and transfer on a wheel chair in front of travellers, amounted to ill-treatment prohibited by Article 3 in its substantive aspect. So did in his opinion the conditions of his detention in Bělá Jezová where he was placed under a strict regime and was refused hospitalization, without any regard to his psychological problems and self-destructive tendencies.
2. Relying on Article 3 in its procedural aspect, the applicant complains that the investigation of his ill-treatment was ineffective, mainly because no relevant evidence had been taken and because he had not been sufficiently involved in it.
3. Under Article 13 of the Convention, the applicant complains that he had no effective domestic remedy to assert his claims of ill-treatment.
QUESTIONS TO THE PARTIES
1. When detained at the airport and in the Bělá Jezová facility, has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?
2. Having regard to the procedural protection from inhuman or degrading treatment (see, among many others, Kummer v. the Czech Republic, no. 32133/11, §§ 80-83, 25 July 2013), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
Full & Egal Universal Law Academy