Published on 28 August 2023
FIRST SECTION
Application no. 46293/22
Andrej BYSTRÝ and Marian BYSTRÝ
against Slovakia
lodged on 17 September 2022
communicated on 10 July 2023
SUBJECT MATTER OF THE CASE
The applicants are, respectively, a son and his father. The application concerns coercive measures taken against them by the police in the course of an intervention on 12 April 2020 in a Roma community in Bardejov where festivities took place on Easter Sunday despite anti-Covid sanitary measures. Restrictions on freedom of movement and assembly were in place, as well as the obligation to wear a face mask. When the police proceeded to enforce these rules, the situation escalated into a disturbance with stones and various objects being thrown at them, which forms the background to the present case.
The first applicant, Andrej Bystrý, submits that as he went to pay a family visit, he was approached by the police in the street as he was not wearing a face mask. He explained that he was not wearing a face mask because he felt nauseous. This resulted in a confrontation and his arrest by three officers who pushed him to the ground and hit him in the ribs and on the back. An expert later certified that he had suffered concussion, contusions and skin abrasions in the forehead area, chest contusion, as well as contusion and abrasion of the left elbow and knee with an expected healing period of 5 to 6 days. Mr A. Bystrý was released the next day and the matter of his not wearing a face mask was referred for examination as a minor offence, but was not pursued further.
The second applicant, Marián Bystrý, came to the scene later, looking for his son. During a skirmish involving an attempt to arrest another person, the applicant was hit on the upper part of his body with a telescopic baton, presumably made of metal, and was also punched. Pursuant to a penal order by which he would later be found guilty with final effect of having assaulted an officer of law, Mr M. Bystrý also threw stones at two officers and punched one of them. He was then hit again, repeatedly, with a baton, including on the head. According to expert evidence Mr M. Bystrý suffered several injuries, including a fracture of the frontal bone on his forehead with indentation of fragments and with hematoma, a 6 cm contusion wound to the forehead and a mild contusion of the brain with an expected healing period of about 30 days.
The intervention was video recorded by onlookers and received some media coverage. Criminal proceedings were opened against one or more unidentified officers for having abused their authority in connection with the measures taken against the applicants but ultimately terminated on the grounds that the use of coercive measures against them had been lawful and adequate. It was concluded that Mr A. Bystrý had suffered his injuries by tripping and falling to the ground when being manhandled to a police car on his arrest and Mr M. Bystrý had been hit on the head by a baton inadvertently.
Relying on Article 3 of the Convention, the applicants complain that the use of force against them was unwarranted and disproportionate and that the investigation into it lacked thoroughness.
QUESTIONS TO THE PARTIES
1. Have the applicants been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?
Was the recourse to physical force against them made strictly necessary by their conduct (see Bouyid v. Belgium [GC], no. 23380/09, § 100, ECHR 2015)?
Was the use of a baton, presumably made of metal, against the applicant Mr M. Bystrý justified (see Dembele v. Switzerland, no. 74010/11, § 47, 24 September 2013, and also R.R. and R.D. v. Slovakia, no. 20649/18, § 158; 1 September 2020)?
2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention, in particular as regards the requirement of thoroughness (see Bouyid, cited above, § 123)?